5. The rights and obligations of the Parties in respect of Telecommunications shall be governed by the Annex on Telecommunications of the GATS, which are hereby incorporated into and made part of this Chapter.
6. The provisions of this Chapter shall be read with Annex 8C (Movement of Natural Persons).
7. For greater certainty, Annex 8C (Movement of Natural Persons), and Annex
8D (Health-Related Services and Traditional Medicine Services) are an integral part of this Chapter.
2 Notwithstanding subparagraphs (iv) and (v), this Chapter shall apply to measures affecting rental services of aircraft with crew and air transport management services only for a Party that opts to make commitments in relation to such services in accordance with Article 8.7 (Schedule of Specific Commitments).
3 Nothing in this Chapter shall apply to measures taken or activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary policies and related credit policies or exchange rate policies.
Article 8.3 Market Access
1. With respect to market access through the modes of supply defined under "Trade in Services" in Article 8.1 (Definitions), each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of specific commitments.4
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule of specific commitments, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;5
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
4 If a Party undertakes a market-access commitment in relation to the supply of a service through the "cross-border" mode of supply referred to in the definition of "Trade in Services" in Article 8.1 (Definitions), and if the cross-border movement of capital is an essential part of the service itself, that Party is thereby committed to allow such movement of capital. If a Party undertakes a market-access commitment in relation to the supply of a service through the "commercial presence" mode of supply referred to in the definition of "Trade in Services" in Article 8.1 (Definitions}, it is thereby committed to allow related transfers of capital into its territory.
5 Subparagraph (c) does not cover measures of a Party which limit inputs for the supply of services.
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
3. Each Party shall endeavour to minimise requirements for a service supplier of the other Party to establish or maintain a representative office or any form of juridical person or to be resident in its territory, as a condition for the cross-border supply of a service.
Article 8.4 National Treatment
1. In the sectors inscribed in its Schedule of specific commitments, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.6
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party compared to like services or service suppliers of the other Party.
Article 8.5 Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 8.3 (Market Access) or 8.4 (National Treatment), including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule of specific commitments.
6 Specific commitments assumed under this Article shall not be construed to require either Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
Article 8.6
Most Favoured Nation Treatment7
If, after the date of entry into force of this Agreement, a Party enters into any agreement on trade in services with a non-Party, it shall give consideration to a request by the other Party for the incorporation herein of treatment no less favourable than that provided under the aforesaid agreement. Any such incorporation should maintain the overall balance of commitments undertaken by each Party under this Agreement.
Article 8.7
Schedule of Specific Commitments
1. Each Party shall set out, in a Schedule, the specific commitments it undertakes under Articles 8.3 (Market Access), 8.4 (National Treatment) and 8.5 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule of specific commitments shall specify: _ • •
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments;
(d) where appropriate the time frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 8.3 (Market Access) and 8.4 (National Treatment) shall be inscribed in the column relating to Article 8.3 (Market Access). In this case, the inscription will be considered to provide a condition or qualification to Article 8.4 (National Treatment) as well.
3. The Parties' Schedules of specific commitments shall be annexed to this Chapter as Annex 8A (Schedule of Specific Commitments of India on Trade in Services) arid Annex 8B (Schedule of Specific Commitments of Oman on Tr;:ide in Services) and shall form an integral part of this Agreement.
7 This Article shall not apply to Financial_Services.
Article 8.8 Modification of Schedules
1. A Party may modify or withdraw any commitment in its Schedule, (referred to in this Article as the "modifying Party"), at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article. It shall notify the other Party of its intent to modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of the other Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment within six months. In such negotiations and agreement, the Parties shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in the Schedule of specific commitments prior to such negotiations. The Joint Committee shall be kept informed of the outcome of the negotiations.
3. If agreement is not reached between the affected Party and the modifying Party before the end of the period provided for negotiations, the affected Party may invoke the process in Chapter 13 (Dispute Settlement).
4. If an affected Party does not refer the matter to dispute settlement within 60 days from the expiration of the period referred to in paragraph 3, the modifying Party shall be free to implement the proposed modification or withdrawal.
5. The modifying Party may not modify or withdraw its commitment until it has made compensatory adjustments in conformity with the findings of the panel established pursuant to Article 13.8 (Establishment of a Panel
- Dispute Settlement).
6. If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the panel established pursuant to Article 13.8 (Establishment of a Panel - Dispute Settlement), the affected Party may modify or withdraw substantially equivalent benefits in conformity with those findings.
Article 8.9 Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. The provisions of paragraph 2 shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
4. Where authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of a Party shall:
(a) within a reasonable period of time after the submission of an application considered complete under the laws and regulations of the Party, inform the applicant of the decision concerning the application;
(b) in the case of an incomplete application, at the request of the applicant, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(c) at the request of the applicant, without undue delay, provide information concerning the status of the application; and
(d) if an application is terminated or denied, to the maximum extent possible, inform the applicant in writing and without delay the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
5. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements, do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measure.$, pursuant to Article Vl.4 of the GATS, with a view to their incorporation into this Chapter. The Parties note that such disciplines aim to ensure that such requirements are, inter a/ia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
6. Pending the incorporation of disciplines pursuant to paragraph 5, for sectors where a Party has undertaken specific commitments and subject to any terms, limitations, conditions or qualifications set out therein, a Party shall not apply licensing and qualification requirements and procedures and technical standards that nullify or impair such specific commitments in a manner which:
(a) does not comply with the criteria outlined in subparagraphs 5(a), 5(b), or 5(c); and
(b) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
7. In determining whether a Party is in conformity with the obligation under paragraph 6, international standards of relevant international organisations8 applied by that Party shall be taken into account.
8. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party in accordance with paragraph 5.
Article 8.10 Recognition
1. For the purposes of the fulfilment of its standards or criteria for the authorisation, licensing or certification of services suppliers, each Party shall give due consideration to any requests by the other Party to recognise the education or experience obtained, requirements met, or licenses or· certifications granted in the other Party. Such recognition which may be achieved through harmonisation or otherwise may be based upon an agreement or arrangement with the other Party, or otherwise be accorded autonomously.
8 The term•:relevant international organisations" refers to international bodies whose membership is open to the relevant bodies of both Parties.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-Party, that Party shall afford the other Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education or experience obtained, requirements met, or licenses or certifications granted in the territory of that other Party should also be recognised.
3. After the entry into force of this Agreement, the Parties shall encourage their relevant professional bodies in the service sectors of architecture, engineering, medical (doctors), dental, accounting and auditing, nursing, veterinary and company secretaries, to negotiate with the aim of concluding any such agreements or arrangements providing mutual recognition of the education or experience obtained, qualification requirements and procedures and licensing requirements and procedures, within a reasonable period of time. The Parties shall report periodically to the Joint Committee on progress and on impediments experienced.
4. In respect of regulated service sectors, other than those mentioned in paragraph 3, upon a request being made in writing by a Party to the other Party in such sector, the Parties shall encourage their respective professional bodies to negotiate, in that service sector, agreements for mutual recognition of education, or experience obtained, qualifications requirements and procedures, and licensing requirements and procedures in that service sector, with a view to the achievement of early outcomes. The Parties shall report periodically to the Joint Committee on the progress and the impediments experienced.
5. The Parties agree that they shall not be responsible in any way for the settlement of disputes arising out of or under the agreements or arrangements for mutual recognition concluded by their respective professional, standard-setting or regulatory bodies under the provisions of this Article and that the provisions of the Chapter 13 (Dispute Settlement) shall not apply to disputes arising out of or under the provisions of such agreements or arrangements.
6. The Parties agree to encourage, where possible, the relevant bodies in their respective territories to:
(a) enhance cooperation on skill development and mutual recognition of qualifications;
(b) organise bilateral discussion on particular skill sets and standards as per the requirements by each Party; and
(c) pursue mutually acceptable standards and criteria for licensing and certification with respect to service sectors of mutual importance to the Parties.
Article 8.11
Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under specific commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's Schedule of specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. If a Party has reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraphs 1 or 2, it may request the other Party, that is the Party establishing, maintaining or authorising such supplier, to provide specific information concerning the relevant operations.
4. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 8.12 Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 8.11 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. A Party shall, at the request of the other Party (the "Requesting Party"), enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed (the "Requested Party") shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Requested Party shall also provide other information available to the Requesting Party, subject to its domestic laws and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the Requesting Party.
Article 8.13 Safeguard Measures
1. Each Party shall review the treatment of emergency safeguard measures taking into account the results of negotiations pursuant to Article X of the GATS.
2. In the event a Party is considering initiating an emergency safeguard investigation pursuant to the results of the above referenced negotiations, a Party shall request consultations with the other Party.
Article 8.14 Subsidies
Each Party shall review the treatment of subsidies related to trade in services taking into account the development of the multilateral disciplines pursuant to paragraph 1 of Article XV of the GATS.
Article 8.15 Payments and Transfers
1. Except under the circumstances envisaged in Article 8.16 (Restrictions to Safeguard the Balance of Payments), a Party shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties as members of the International Monetary Fund (IMF) under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose •restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 8.16 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 8.16
Restrictions to Safeguard the Balance of Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services in respect of which it has undertaken specific commitments, including on payments or transfers for transactions relating to such commitments. It is recognised that particular pressures on the balance-of-payments of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.
2. The restrictions referred to in paragraph 1 shall:
(a) be applied in such a manner that the other Party is treated no less favourably than any non-Party;
(b) be consistent with the Articles of Agreement of the IMF;
(c) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(d) not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
3. In determining the incidence of such restrictions, the Parties may give priority to the supply of services which are more essential to their economic or development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
4. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the other Party.
5. To the extent that it does not duplicate the process under WTO and IMF, the Party adopting any restrictions under paragraph 1 shall, upon request by the other Party, commence consultations with the other Party in order to review the restrictions adopted by it.
Article 8.17 Denial of Benefits
1. A Party may deny the benefits of this Chapter:
(a) to the supply of a service, if it establishes that the service is supplied from or in the territory of a non-Party;
(b) to a service supplier that is a juridical person, if it establishes that it is not a service supplier of the other Party;
(c) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(i) by a vessel registered under the laws of a non-Party; and
(ii) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party.
2. A Party may also deny the benefits of this Chapter to the supply of a service from or in the territory of the other Party, if the Party establishes that the service is supplied by a service supplier that is owned or controlled by a person of a non-Party and the denying Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the service supplier.
Article 8.18 Movement of Natural Persons
1. The rights and obligations of the Parties in respect of the movement of natural persons of a Party supplying services shall be governed by the GATS Annex on Movement of Natural Persons Supplying Services, which is hereby incorporated into and forms part of this Agreement.
2. Annex BC (Movement of Natural Persons) sets out further rights and obligations regarding movement of natural persons of a Party supplying services.
3. Subject to the domestic laws and regulations in force in the territory of both Parties, the Parties agree to negotiate on matters pertaining to the social security of the workers in the territory of the other Party with a view to ensure continuity of social security coverage on reciprocal basis.
Article 8.19 Cooperation
1. The Parties shall strengthen cooperation efforts in sectors, including sectors which are not covered by current cooperation arrangements. The Parties shall discuss and agree on the sectors for cooperation and develop cooperation programmes in these sectors in order to improve their domestic services capacity and their efficiency and competitiveness.
2. Recognising that trade in audiovisual services, including film and television co-productions, can significantly contribute to the development of the audiovisual industry and to the intensification of cultural and economic exchange between them, the Parties shall endeavour to enhance cooperation in the sector, including by pursuing an audiovisual co-production agreement.
3. Recognising that construction services are important for development due to their role in building industrial and social infrastructure, the Parties endeavour to enhance cooperation in this sector to reduce the barriers affecting trade in construction services.
Article 8.20 Subcommittee on Trade in Services
1. The Parties hereby establish a Subcommittee on Trade in Services ("Trade in Services Subcommittee"), composed of representatives of each Party.
2. The Trade in Services Subcommittee shall meet within one year from the date of entry into force of the Agreement, and thereafter as mutually determined by the Parties.
3. The Trade in Services Subcommittee's functions shall be to:
(a) review and monitor the implementation of this Chapter;
(b) consider any other matters related to this Chapter identified by either Party; and
(c) facilitate the exchange of information between the Parties in relation to this Chapter.
4. The Trade in Services Subcommittee may:
(a) make recommendations, or refer matters, to the Joint Committee;
(b) establish ad hoc working groups, as appropriate;
(c) refer matters to any ad hoc or standing working group or any other subsidiary body related to this Chapter; and
(d) consider any other matter related to this Chapter, or any matter as directed by the Joint Committee.
5. The Trade in Services Subcommittee shall report to the Joint Committee as required.
Chapter 9. GOVERNMENT PROCUREMENT
Article 9.1 General Provisions
1 The Parties recognise the importance of government procurement in the trade relations between the Parties and to maximise, inter alia, the competitive opportunities for the suppliers of the Parties.
2. The Parties recognise the importance of government procurement as a tool in furthering the expansion of domestic production and trade so as to promote growth and employment, with due consideration of the balance between optimum utilisation of resources and requirements.
3. The Parties recognise the importance of promoting the transparency of laws, regulations and procedures, and developing cooperation among the Parties, regarding government procurement.
4. The Parties recognise the importance of carrying out procurements in a transparent and impartial manner.
Article 9.2 Cooperation
1. The Parties intend to cooperate on matters relating to government procurement with a view to achieving a better understanding of each Party's respective government procurement systems at the central-level. Such cooperation may include:
(a) exchanging information, to the extent possible, on Parties' laws, regulations and procedures, and any modifications thereof;
(b) exchanging experience and information about best practices and regulatory frameworks;
(c) providing training, technical assistance or capacity building to Parties, and sharing information on these initiatives;
(d) sharing information and best practices in relation to SMEs; and