Article 6.5. MOST FAVOURED NATION TREATMENT
lf, 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 may 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 6.6. ADDITIONAL COMMITMENTS
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 6.3 or 6.4, including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule of specific commitments.
Article 6.7. SCHEDULE OF SPECIFIC COMMITMENTS
1. Each Party shall set out, in a Schedule, the specific commitments it undertakes under Articles 6.3, 6.4 and 6.6. 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 6.3 and 6.4 shall be inscribed in both the columns relating to Article 6.3 and Article 6.4.
3. Schedules of specific commitments shall be annexed to this Chapter as Annex 13 and Annex 14 and shall form an integral part of this Agreement.
Article 6.8. MODIFICATION OF SCHEDULES
1. A Party may modify or withdraw any commitment in its Schedule, 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 so modify or withdraw a commitment no later than 3 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. In such negotiations and agreement, the Party shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations. The Parties shall endeavour to conclude negotiations on such compensatory adjustment to mutual satisfaction within six months, failing which the matter may be resolved in accordance with the provisions of Chapter 7 (Dispute Settlement) of this Agreement.
Article 6.9. REVIEW
1. The Parties shall endeavour to review this Chapter and specifically their schedules of specific commitments at least once every 3 years at the request of either Party, with a view to facilitating the reduction or elimination of substantially all remaining discrimination between the Parties with regard to trade in Services covered in this Chapter over a period of time. In this process, there shall be due respect for the national policy objectives and the level of development of the Parties, both overall and in individual sectors.
2. The supply of services which are not technically or technologically feasible when this Agreement comes into force shall, when they become feasible, also be considered for possible incorporation at future reviews or at the request of either Party immediately.
Article 6.10. 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. (a) 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.
(b) The provisions of sub-paragraph (a) 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 syste.
3. 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 domestic laws and regulations, inform the applicant of the decision concerning the application;
(b) in the case of an incomplete application, at the request of the applicant, promptly 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.
4. 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 measures, pursuant to Article VI.4 of the WTO General Agreement on Trade in Services (GATS), with a view to their incorporation into this Chapter. The Parties note that such disciplines aim to ensure that such requirements are inter alia:
(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.
5. (a) Pending the incorporation of disciplines pursuant to paragraph 4, 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:
(i) does not comply with the criteria outlined in paragraphs 4(a), 4(b) or 4(c);
(ii) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under paragraph 5(a), account shall be taken of international standards of relevant international organisations (6) applied by that Party.
6. 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 provisions of paragraph 5.
Article 6.11. 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 may be based upon an agreement or arrangement with the other Party, or otherwise be accorded autonomously.
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 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 ensure that their relevant professional bodies in the service sectors of architecture, engineering, medical(doctors), dental, accounting and auditing, nursing, veterinary and company secretaries negotiate and conclude, within twelve months of the date of entry into force of this Agreement, any such agreements or arrangements providing mutual recognition of the education or experience obtained, qualification requirements and procedures and licensing requirements and procedures. The Parties shall report periodically to the Committee on Trade in Services on progress and on impediments experienced.
4. In respect of regulated service sectors, other than those mentioned in paragraph 3 above, upon a request being made in writing by a Party to the other Party in such sector, the Parties shall encourage that their respective professional bodies 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 Committee on Trade in Services on progress and on impediments experienced.
5. Pending the conclusion of agreements or arrangements under paragraphs 3 and 4, each Party shall encourage the professional relevant bodies in its territory to develop procedures for the temporary licensing of professional service providers of the other Party.
6. Any delay or failure by professional bodies to reach and conclude agreement on the details of such agreements or arrangements under paragraph 3 and 4 shall not be regarded as a breach of a Party's obligations under this Article and shall not be subject to the Dispute Settlement chapter of this Agreement. Progress in this regard will be continually reviewed by the Parties in the course of the review of this Agreement. The Parties further 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 Dispute Settlement chapter shall not apply to disputes arising out of, or under, the provisions of such agreements or arrangements.
Article 6.12. 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 above, it may request that Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. The provisions of 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 6.13. BUSINESS PRACTICES
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 6.12, 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 co-operate 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 law and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the Requesting Party.
Article 6.14. SAFEGUARD MEASURES
1. Neither Party shall take safeguard action against services and service suppliers of the other Party from the date of entry into force of this Agreement. Neither Party shall initiate or continue any safeguard investigations in respect of services and service suppliers of the other Party.
2. The Parties note the multilateral negotiations pursuant to Article X of GATS on the question of emergency safeguard measures based on the principle of non- discrimination. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Chapter so as to incorporate the results of such multilateral negotiations.
Article 6.15. SUBSIDIES
The Parties shall review the treatment of subsidies in the context of developments in multilateral fora of which both Parties are Members.
Article 6.16. PAYMENTS AND TRANSFERS
1. Except under the circumstances envisaged in Article 6.17 or restrictions specified in its Schedule of Specific Commitments, 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 6.17 or at the request of the Fund.
Article 6.17. 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 consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
(e) be applied in such a manner that the other Party is treated no less favourably than any country that is not a Party to this Agreement.
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 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 6.18. TRANSPARENCY
1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Chapter. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.
2. Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.
3. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1. Each Party shall also establish one or more enquiry points to provide specific information to other Party, upon request, on all such matters.
Article 6.19. DISCLOSURE OF CONFIDENTIAL INFORMATION
Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 6.20. GENERAL EXCEPTIONS
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party, or a disguised restriction on trade in services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by either Party of measures:
(a) necessary to protect public morals or to maintain public order; (7)
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iil) safety;
Article 6.21. SECURITY EXCEPTIONS
1. Nothing in this Chapter shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations;
(iv) relating to protection of critical public infrastructure, including communications, power and water infrastructure from deliberate attempts intended to disable or degrade such infrastructure; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. Each Party shall inform the other Party to the fullest extent possible of measures taken under paragraphs 1(b) and (c) and of their termination.
3. Nothing in this Chapter shall be construed to require a Party to accord the benefits of this Chapter to a service supplier of the other Party where a Party adopts or maintains measures in any legislation or regulations which it considers necessary for the protection of its essential security interests with respect to a non- Party or a service supplier of a non-Party that would be violated or circumvented if the benefits of this Chapter were accorded to such a service supplier.
Article 6.22. 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 country that is not a Party to this Agreement;
(b) 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. Subject to prior notification and consultation, 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 adopts or maintains measures with respect to 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.
Chapter 7. DISPUTE SETTLEMENT
Article 7.1. OBJECTIVES
The objective of this Chapter is to provide an effective, efficient and transparent process for consultations as well as the settlement of disputes arising under this Agreement.
Article 7.2. DEFINITIONS
For the purposes of this Chapter, the following definitions shall apply, unless the context otherwise requires:
(a) "Complaining Party" means the Party requesting consultations under Article 7.6 (Consultations);
(b) "Panel" means a panel established under Articles 7.9 (Establishment of Panel) or 7.11(Re-convening of Panel);
(c) "Parties to the dispute" means the Complaining Party and the Responding Party;
(d) "Perishable Goods" means goods that rapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions;
(e) "Responding Party" means the Party to which a request for consultations is made under Article 7.6 (Consultations);
Article 7.3. SCOPE AND COVERAGE
1. Except as otherwise provided in this Agreement, this Chapter shall apply to the avoidance or settlement of disputes arising under this Agreement on any matter affecting the operation, implementation or application of this Agreement whereby a Party considers that any benefit accruing to it under this Agreement is being nullified or impaired, or the attainment of any objective of this Agreement is being impeded, as a result of:
(a) ameasure of the other Party that is not in conformity with its obligations under this Agreement; or
(b) the failure of the other Party to carry out its obligations under this Agreement. (8)
2. This Chapter shall apply subject to such special and additional provisions on dispute settlement contained in other provisions of this Agreement.
3. Subject to Article 7.5 (Choice of Forum), this Chapter is without prejudice to the rights of a Party to have recourse to dispute settlement procedures available under other agreements to which both Parties are party.
Article 7.4. GENERAL PROVISIONS
1. This Agreement shall be interpreted in accordance with the customary rules of interpretation of public international law. With respect to any provision of the WTO Agreement that has been incorporated into or referred to in this Agreement, the panel shall also consider relevant interpretations in reports of WTO panels and the Appellate Body adopted by the WTO Dispute Settlement Body. The rulings of the panel cannot add to or diminish the rights and obligations provided for in this Agreement.
2. All notifications, requests and replies made pursuant to this Chapter shall be in writing.
3. The Parties to the dispute are encouraged at every stage of a dispute to make every effort through cooperation and consultations to reach a mutually agreed solution to the dispute.
4. Unless otherwise specified, any time periods provided for in this Chapter may be modified by mutual agreement of the Parties to the dispute.
Article 7.5. CHOICE OF FORUM
1. Where a dispute concerning any matter arises under this Agreement and under another international agreement to which the Parties to the dispute are party, the Complaining Party may select the forum in which to address that matter and that forum shall be used to the exclusion of other possible fora in respect of that matter.
2. For the purposes of this Article, the Complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of a panel pursuant to Article 7.8 (Request for Establishment of a Panel) or requested the establishment of, or referred a matter to, a dispute settlement panel or tribunal under any other international agreement.
3. This Article does not apply where the Parties to the dispute agree in writing that this Article shall not apply to a particular dispute.
Article 7.6. CONSULTATIONS
1. Any Party may request consultations with the other Party with respect to any dispute arising under this Agreement. A Responding Party shall accord due consideration to a request for consultations made by a Complaining Party and shall provide adequate opportunity for such consultations.
2. Any request for consultations shall contain the reasons for the request, including identification of the measures at issue and an indication of the factual and legal basis for the complaint.
3. The Responding Party shall, not later than 7 days from the date of the request for consultations, acknowledge receipt of the request, by way of notification to the Complaining Party, indicating the date on which the request was received, otherwise the date when the request is made shall be deemed to be the date of receipt of the request.
4. The Responding Party shall, unless otherwise mutually agreed, reply to the request within seven days after the date of its receipt and shall enter into consultations within a period of no more than:
(a) 15 days after the date of receipt of the request in cases of urgency, including cases involving perishable goods;
(b) 30 days after the date of receipt of the request for any other matters; or (c) such other period as the Parties to the dispute mutually agree.
5. The Parties to the dispute shall enter into consultations in good faith and make every effort to reach a mutually satisfactory solution through consultations. To this end, the Parties to the dispute shall:
(a) provide sufficient information to enable a full examination of the matter, including how the measures at issue might affect the implementation or application of this Agreement;
(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as the Party providing the information; and
(c) endeavour to make available for the consultations, personnel of its government agencies or other regulatory bodies who have responsibility for and/or expertise in the matter under consultation.
6. The consultations shall be confidential and without prejudice to the rights of the Parties to the dispute in any further or other proceedings.
Article 7.7. GOOD OFFICES, CONCILIATION, MEDIATION
1. The Parties to the dispute may at any time agree to voluntarily undertake procedures for good offices, conciliation or mediation. Such procedures may begin at any time and may be terminated at any time by any Party to the dispute.
2. If the Parties to the dispute agree, procedures for good offices, conciliation or mediation may continue while the matter is being examined by a panel established or re-convened under this Chapter.
3. Proceedings involving good offices, conciliation and mediation and positions taken by the Parties to the dispute during these proceedings shall be confidential and without prejudice to the rights of any Parties to the dispute in any further or other proceedings.
Article 7.8. REQUEST FOR ESTABLISHMENT OF A PANEL
1. The Complaining Party may request the establishment of a panel to consider the matter, by means of a notice addressed to the Responding Party, if:
(a) the Responding Party does not reply to the request for consultations in accordance with Article 7.6(4) (Consultations); or