(e) facilitate technical discussions.
4. Meetings may occur in person, by teleconference, by video conference, or through any other means as determined by the Parties.
Chapter 5. TECHNICAL BARRIERS TO TRADE
Article 5.1. OBJECTIVES
The objectives of this Chapter are to facilitate trade in goods among the Parties by:
(a) ensuring that standards, technical regulations, and conformity assessment procedures do not create unnecessary obstacles to trade;
(b) furthering the cooperation of WTO Agreement on Technical Barriers to Trade (TBT Agreement)
(c) promoting mutual understanding of each Party's standards, technical regulations, and conformity assessment procedures;
(d) facilitating information exchange and cooperation among the Parties in the field of standards, technical regulations and conformity assessment procedures including in the work of relevant international bodies; and.
(e) addressing the issues that may arise under this Chapter.
Article 5.2. DEFINITIONS
For the purposes of this Chapter, the terms and their definitions set out in Annex 1 of the TBT Agreement shall apply.
Article 5.3. SCOPE
This Chapter shall apply to the standards, technical regulations and conformity assessment procedures that may affect trade in goods between the Parties. The Chapter shall not apply to:
(a) SPS measures which are covered in Chapter 4 of this Agreement; and
(b) purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies.
Article 5.4. AFFIRMATION OF THE TBT AGREEMENT
1. Each Party affirms its rights and obligations under the TBT Agreement.
2. Each Party shall take such reasonable measures as may be available to it to ensure compliance, in the implementation of this Chapter, by local government and non-governmental bodies within its territory which are responsible for the preparation, adoption and application of standards, technical regulations and conformity assessment procedures.
Article 5.5. STANDARDS
1. In determining whether an international standard, guide or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exists, each Party takes into account the principles set out in Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the TBT Agreement.
2. Whenever modifications of contents and/or structure of the relevant international standards are necessary in developing national standards, upon request of other Party, Parties shall encourage their standardizing body or bodies to provide what the differences in the contents and structure are, and reason(s) for those differences in English. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.
3. Each Party shall ensure that its standardizing body or bodies ensure that the modifications of contents and structure of international standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.
4. Each Party shall encourage the standardizing body or bodies in its territory to co-operate with the standardizing body or bodies of other Party including, but shall not be limited to:
(a) exchange of information on standards; (b) exchange of information relating to standard setting procedures; and
(c) co-operation in the work of international standardizing bodies in areas of mutual interest.
Parties shall, where appropriate, strengthen coordination and communication with each other in the context of discussion on international standards and related issues in other international fora, such as WTO Committee on TBT.
Article 5.6. TECHNICAL REGULATIONS
1. Each Party shall prepare, adopt and apply its technical regulations in accordance with Article 2 and ensure adherence to Article 3 of the TBT Agreement.
2. Each Party shall use relevant international standards to the extent provided in paragraph 4 of Article 2 of the TBT Agreement, as a basis for its technical regulations. Where a Party does not use such international standards, or their relevant parts, as a basis for its technical regulations and these may have a significant effect on trade of other Parties, it shall, upon request of another Party, explain the reasons therefore.
3. Each Party shall give positive consideration to accepting as equivalent, technical regulations of another Party, even if these regulations differ from its own, provided it is satisfied that these regulations adequately fulfill the objectives of its own regulations.
4. Except where urgent problems of safety, health, environmental protection or national security arise or threaten to arise, Parties shall allow a reasonable interval between the publication of technical regulations and their entry into force in order to provide sufficient time for producers in exporting Parties to adapt their products or methods of production to the requirements of importing Parties.
5. At the request of a Party that has an interest in developing a technical regulation similar to a technical regulation of another Party, such other Party shall endeavour to provide, to the extent practicable, relevant information, including studies or documents, except for confidential information, on which it has relied in its development.
Article 5.7. CONFORMITY ASSESSMENT PROCEDURES
1. In cases where a positive assurance is required that products conform with technical regulations or standards, and relevant international standards, guides or recommendations issued by international standardizing bodies exist or their completion is imminent, Parties shall ensure that central government bodies use them, or the relevant parts of them, as a basis for their conformity assessment procedures, except where, as duly explained upon request, such international standards, guides or recommendations or relevant parts are inappropriate for the Parties concerned, for, inter alia, such reasons as: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment; fundamental climatic or other geographical factors; fundamental technological or infrastructural problems.
2. Procedures for assessment of conformity by central government bodies of each Party shall be in accordance with Article 5 of TBT Agreement.
3. Each Party shall ensure, whenever possible, that results of the conformity assessment procedures in another Party are accepted, even when those procedures differ from its own, provided it is satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to its own procedures.
4. Each Party recognises that, a broad range of mechanisms exists to facilitate the acceptance of the results of conformity assessment procedures conducted in another Party. Such mechanisms may include but are not limited to:
a) mutual recognition agreements for the results of conformity assessment procedures conducted by bodies in the Parties;
b) co-operative (voluntary) arrangements between accreditation bodies or those between conformity assessment bodies in the Parties;
c) use of accreditation to qualify conformity assessment bodies, including through relevant multilateral agreements or arrangements to recognize the accreditation granted by other Parties;
d) designation of conformity assessment bodies in another Party;
e) unilateral recognition by a Party, of results of conformity assessment procedures conducted in another Party;
f) manufacturer's or supplier's declaration of conformity.
5. Upon reasonable request, the Parties shall exchange information and/or share experiences on the mechanisms referred to in paragraph 4 above, with a view to facilitating the acceptance of the results of conformity assessment procedures.
6. The Parties agree to encourage their conformity assessment bodies to work closer with a view to facilitating the acceptance of conformity assessment results between Parties.
Article 5.8. COOPERATION
1. The Parties shall strengthen their cooperation in the field of standards, technical regulations and conformity assessment procedures consistent with the objectives of this Chapter.
2. Each Party shall, upon request of another Party, give positive consideration to proposals for co-operation on matters of mutual interest on standards, technical regulations and conformity assessment procedures.
3. Such co-operation, which shall be on mutually determined terms and conditions, may include but is not limited to:
(a) advice or technical assistance/capacity building relating to the development and application of standards, technical regulations and conformity assessment procedures;
(b) co-operation between conformity assessment bodies, both governmental and nongovernmental, in the Parties on matters of mutual interest;
(c) co-operation in areas of mutual interest in the work of relevant regional and international bodies relating to the development and application of standards and conformity assessment procedures, such as enhancing participation in the frameworks for mutual recognition developed by relevant regional and international bodies;
(d) enhancing co-operation in the development and improvement of standards, technical regulations and conformity assessment procedures; and
(e) strengthening communication and coordination in the WTO TBT Committee and other relevant international or regional fora.
4. Each Party shall, upon request of another Party, give consideration to sector specific proposals for mutual benefit for cooperation under this Chapter.
Article 5.9. INFORMATION EXCHANGE AND TECHNICAL DISCUSSIONS
1. When a Party considers the need to resolve an issue related to trade and provisions under this Chapter, it may request in writing for technical discussions. The requested Party shall respond as early as possible to such a request.
2. The requested Party shall enter into technical discussions within 60 days, unless otherwise mutually determined by the Parties, with a view to reaching a mutually satisfactory solution. Technical discussions may be conducted via any means mutually agreed by the Parties concerned.
3. Requests for information or technical discussions and communications shall be conveyed through the respective contact points designated pursuant to Article 5.11 (Contact Points).
4. The Parties understand and agree that this Article 5.9 is without prejudice to the rights and obligations of the Parties under Chapter 7 (Dispute Settlement).
Article 5.10. TRANSPARENCY
1. Each Party affirms its commitment to ensuring that information regarding proposed new or amended standards, technical regulations and conformity assessment procedures is made available in accordance with the relevant requirements of the TBT Agreement as well as the Decisions and Recommendations Adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995 (G/TBT/1/Rev.11, and the subsequent revisions).
2. Each Party shall endeavour to notify proposals for new technical regulations and conformity assessment procedures of regional or local governments, as the case may be, on the level directly below that of the central level of government that are in accordance with the technical content of relevant international standards, guides and recommendations, if any, and that may have a significant effect on trade according to the procedures established under Article 2.9 or 5.6 of the TBT Agreement. For greater certainty, a Party may comply with this obligation by ensuring that the proposed and final measures in this paragraph are published on, or otherwise accessible through, the WTO's official website.
Article 5.11. CONTACT POINTS
1. Each Party shall designate a contact point or contact points responsible for coordinating the implementation of this Chapter.
2. Each Party shall provide each of the other Parties with the name of the designated contact point or contact points and the contact details of the relevant official (s) in that organisation, including telephone, facsimile, email and any other relevant details.
3. Each Party shall notify each of the other Parties promptly of any change in their contact points or any amendments to the details of the relevant official (s).
4. Each Party shall ensure that its contact point or contact points facilitate the exchange of information between the Parties on standards, technical regulations and conformity assessment procedures, in response to all reasonable requests for such information from a Party.
Article 5.12. SUB COMMITTEE ON STANDARDS, TECHNICAL REGULATIONS AND CONFORMITY ASSESSMENT PROCEDURES
1. The Parties hereby establish a Sub-Committee on Standards, Technical Regulations and Conformity Assessment Procedures, consisting of representatives of the Parties.
2. The Sub-Committee shall meet at such venues and times as mutually determined by the Parties. Meetings may be conducted in person, or by any other means as mutually determined by the Parties
3. The functions of the Sub-Committee may include:
(a) monitoring the implementation and operation of this Chapter;
(b) coordinating cooperation pursuant to Article 5.8 (Cooperation);
(c) facilitating technical discussions;
(d) reporting, where appropriate, its findings to the High-Powered Joint Trade Committee; and
(e) carrying out other functions as may be delegated by the High- Powered Joint Trade Committee.
Chapter 6. TRADE IN SERVICES
Article 6.1. DEFINITIONS
For the purposes of this Chapter:
(a) "a service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(b) "commercial presence" means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person, or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(c) "juridical person" means any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(d) "juridical person of the other Party" means a juridical person which is either:
(i) constituted or otherwise organised under the law of the other Party, and is engaged in substantive business operations in the territory of that Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of that other Party; or
(B) juridical persons of that other Party as identified under sub paragraph (e) (i);
(e) a "juridical person" is:
(i) owned by persons of a Party if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Party;
(ii) controlled by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(iii) affiliated with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
(f) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(g) "measures by Parties" means measures taken by:
(i) central, regional, or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
In fulfilling its obligations and commitments under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non- governmental bodies within its territory;
(h) "measures by Parties affecting trade in services" include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally;
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
(i) "monopoly supplier of a service" means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(i) "natural person of the other Party" means a natural person who resides in the territory of that other Party or elsewhere, and who under the law of that other Party is a national of that other Party.
(k) "person" means either a natural person or a juridical person;
(l) "sector of a service" means,
(i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Member's Schedule,
(ii) otherwise, the whole of that service sector, including all of its subsectors;
(m) "services" includes any service in any sector except services supplied in the exercise of governmental authority;
(n) "service consumer" means any person that receives or uses a service;
(o) "service of the other Party" means a service which is supplied:
(i) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(p) "service supplier" means any person that supplies a service (2);
(q) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service;
(r) "trade in services" is defined as the supply of a service: (i) from the territory of a Party into the territory of the other Party; (ii) in the territory of a Party to the service consumer of the other Party;
(ii) by a service supplier of a Party, through commercial presence in the territory of the other Party;
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party.
Article 6.2. SCOPE AND COVERAGE
1. This Chapter applies to measures by a Party affecting trade in services.
2. This Chapter does not apply to:
(a) Government procurement;
(b) subsidies or grants except to the extent provided in Article 6.14 on subsidies;
(c) a juridical person which is not a juridical person of the other Party; and a natural person who is not a natural person of the other Party;
(d) cabotage in maritime transport services;
(e) services provided in the exercise of governmental authority.
3. The Parties affirm mutatis mutandis their rights and obligations under the GATS Annex on Air Transport Services, Annex on Financial Services and Annex on Telecommunications
4. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures pertaining to citizenship, permanent residence or employment on a permanent basis.
5. With regard to delivery of services through Mode 4, the provisions of this Chapter read with the provisions of Annex 10 on Movement of Natural Persons shall apply.
6. The provisions of this Chapter shall be read with Annex 11 on Financial Services and Annex 12 on Telecommunications Services.
Article 6.3. MARKET ACCESS
1. With respect to market access through the modes of supply defined in paragraph (r) of Article 6.1, 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. (3)
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; (4)
(d) limitations on the total number of natural persons that may be employed ina 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
(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 6.4. NATIONAL TREATMENT
1. In the sectors inscribed in its Schedule, 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. (5)
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.