(i) from the Area of a Party into the Area of the other Party;
(ii) in the Area of a Party by a person of that Party to a person of the other Party; and
(iii) by a natural person of a Party in the Area of the other Party,
but does not include the supply of a financial service by an investment of an investor of a Party, in the Area of the other Party;
(c) the term “financial institution” means any enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in which it is located;
(d) the term “financial institution of the other Party” means a financial institution located in a Party that is owned or controlled by persons of the other Party;
(e) the term “financial service” means any service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
(i) Insurance and Insurance-Related Services
(A) direct insurance (including coinsurance):
(AA) life; and
(BB) non-life;
(B) reinsurance and retrocession;
(C) insurance intermediation, such as brokerage and agency; and
(D) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services; and
(ii) Banking and Other Financial Services (Excluding Insurance)
(A) acceptance of deposits and other repayable funds from the public;
(B) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transactions;
(C) financial leasing;
(D) all payment and money transmission services, including credit, charge and debit cards, travelers checks and bankers drafts;
(E) guarantees and commitments;
(F) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(AA) money market instruments (including checks, bills, certificates of deposits);
(BB) foreign exchange;
(CC) derivative products including, but not limited to, futures and options;
(DD) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(EE) transferable securities; and
(FF) other negotiable instruments and financial assets, including bullion;
(G) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(H) money broking;
(I) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(J) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(K) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(L) advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (A) through (K), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(f) the term “investment” means an investment as defined in subparagraph 1(h) of Article 105, except that, with respect to loans and debt instruments referred to in that subparagraph:
(i) a loan to or debt instrument issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in which the financial institution is located; and
(ii) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument of a financial institution referred to in subparagraph (I), is not an investment; for greater certainty,
(iii) a loan to, or a debt instrument issued by, a Party or a state enterprise thereof is not an investment; and
(iv) a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution referred to in subparagraph (i), is an investment under Chapter 8 if such loan or debt instrument meets the criteria for investments set out in subparagraph 1(h) of Article 105;
(g) the term “investor of a Party” means an investor of a Party as defined in subparagraph 1(j) of Article 105;
(h) the term “new financial service” means a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the Area of a Party but which is supplied in the Area of the other Party;
(i) the term “person of a Party” means a natural person or an enterprise of a Party and, for greater certainty, does not include a branch of an enterprise of a non-Party;
(j) the term “public entity” means the Government, the central bank or monetary authority of a Party, or any entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms or a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions; and
(k) the term “self-regulatory organization” means any non-governmental body, including any securities or futures exchange or market, clearing agency, or any other organization or association, that exercises its own or delegated regulatory or supervisory authority over financial institutions.
Chapter 11. Entry and Temporary Stay of Nationals for Business Purposes
Article 129. General Principles
1. This Chapter reflects the preferential trading relationship between the Parties, the mutual desire of the Parties to facilitate entry and temporary stay of nationals for business purposes on a reciprocal basis and to establish transparent criteria and procedures for entry and temporary stay, and the need to ensure border security and to protect the domestic labor force and permanent employment in either Party.
2. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with paragraph 1, and, in particular, shall apply expeditiously those Measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
Article 130. Scope
1. This Chapter shall apply to measures affecting the entry and temporary stay of nationals of a Party who enter the other Party for business purposes.
2. This Chapter shall not apply to measures affecting nationals of a Party seeking access to the employment market of the other Party, nor shall it apply to measures regarding nationality or citizenship, or residence or employment on a permanent basis.
3. This Chapter shall not prevent a Party from applying measures to regulate the entry of nationals of the other Party into, or their temporary stay in, the former Party, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of the categories set out in Annex 13.
Note: The sole fact of requiring a visa for natural persons of a certain nationality and not for those of others shall not be regarded as nullifying or impairing benefits under the terms of a specific category.
Article 131. Grant of Entry and Temporary Stay
Each Party shall grant entry and temporary stay to nationals of the other Party in accordance with this Chapter including the provisions of Annex 13.
Article 132. Provision of Information
Each Party Shall:
(a) provide to the other Party such materials as will enable that other Party to become acquainted with its measures relating to this Chapter;
(b) make publicly available in the Parties, explanatory material in a consolidated document regarding the requirements for entry and temporary stay under this Chapter, no later than one year after the date of entry into force of this Agreement; and
(c) to the extent possible, upon request by the other Party, make available to the other Party, in accordance with its laws and regulations, data respecting the granting of entry and temporary stay under this Chapter to nationals of the other Party.
Article 133. Dispute Settlement
1. The dispute settlement procedures provided for in Chapter 16 shall not apply to this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the nationals of a Party concerned have exhausted the administrative remedies, where available, regarding the particular matter.
2. The remedies referred to in subparagraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority of the other Party within one year after the date of the institution of the administrative remedy, and the failure to issue such determination is not attributable to delay caused by the nationals.
Article 134. Measures Pursuant to Immigration Laws and Regulations
Except for this Chapter and Chapters 1, 2, 16, 17, 18 and 19, nothing in this Agreement shall impose any obligation on either Party regarding measures pursuant to immigration laws and regulations.
Article 135. Definitions
For the purposes of this Chapter:
(a) the term "entry and temporary stay" means entry into and stay in a Party by a national of the other Party without the intent to establish permanent residence; and
(b) the term "immigration laws and regulations" means any laws and regulations affecting the entry and temporary stay of nationals.
Chapter 12. Government Procurement
Article 136. Scope
1. This Chapter shall apply to any measures adopted or maintained by a Party relating to government procurement, by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy:
(a) by entities specified in Part 1 of Annex 14;
(b) of goods specified in Part 2 of Annex 14, services specified in Part 3 of Annex 14, or construction services specified in Part 4 of Annex 14; and
(c) where the value of the contracts to be awarded is estimated to be not less than the thresholds specified in Part 5 of Annex 14 at the time of publication of a notice of procurement.
2. Paragraph 1 is subject to the General Notes set out in Part 6 of Annex 14.
3. Neither Party shall prepare, design or otherwise structure any government procurement contract in order to avoid the obligations under this Chapter.
Article 137. National Treatment and Non-Discrimination
1. With respect to any laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall provide immediately and unconditionally to the goods, services and suppliers of the other Party, treatment no less favorable than that it accords to its own goods, services and suppliers.
2. With respect to any laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall ensure:
(a) that its entities do not treat a locally- established supplier less favorably than another locally-established supplier on the basis of the degree of affiliation to, or ownership by, a natural person or an enterprise of the other Party; and
(b) that its entities do not discriminate against a locally-established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
3. This Article shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations, including restrictions and formalities, nor to measures affecting trade in services other than laws, regulations, procedures and practices regarding government procurement covered by this Chapter.
Article 138. Valuation of Contracts
In determining the value of contracts for the purposes of implementing this Chapter:
(a) valuation shall take into account all forms of remuneration, including any premiums, fees, commissions and interest receivable;
(b) the selection of the valuation method by an entity shall not be used, nor shall any procurement requirement be divided, with the intention of avoiding the application of this Chapter; and
(c) in cases where an intended procurement specifies the need for option clauses, the basis for valuation shall be the total value of the maximum permissible procurement, inclusive of optional purchases.
Article 139. Prohibition of Offsets
Each Party shall ensure that its entities do not, in the qualification and selection of suppliers, goods or services, or in the evaluation of tenders and award of contracts, impose, seek or consider offsets. For the purposes of this Article, offsets means conditions considered, sought or imposed by an entity prior to or in the course of its procurement process that encourage local development or improve its Party's balance of payments accounts, by means of requirements of local content, licensing of technology, investment, counter-trade or similar requirements.
Article 140. Technical Specifications
1. Technical specifications laying down the characteristics of the goods or services to be procured, such as quality, performance, safety and dimensions, symbols, terminology, packaging, marking and labeling, or the processes and methods for their production and requirements relating to conformity assessment procedures prescribed by procuring entities, shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to trade.
2. Any technical specifications prescribed by procuring entities shall, where appropriate:
(a) be specified in terms of performance rather than design or descriptive characteristics; and
(b) be based on international standards, where such exist; otherwise, on national technical regulations, recognized national standards, or building codes.
3. Each Party shall ensure that its entities do not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, design or type, specific origin or producer or supplier, unless there is no sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, words such as "or equivalent" are included in the tender documentation.
4. Each Party shall ensure that its entities do not seek or accept, in a manner which would have the effect of precluding fair competition, advice which may be used in the preparation or adoption of any technical specifications for a specific procurement from a person that may have a commercial interest in the procurement.
Article 141. Tendering Procedures
1. Each Party shall ensure that the tendering procedures of its entities are applied in a non-discriminatory manner and in compliance with this Chapter.
2. Each Party shall ensure that its entities do not provide to any supplier information with regard to a specific procurement in a manner which would have the effect of precluding competition.
Article 142. Qualification of Suppliers
1. In the process of qualifying suppliers, each Party shall ensure that its entities do not discriminate against suppliers of the other Party. Qualification procedures shall be consistent with the following:
(a) any conditions for participation in tendering procedures shall be published in adequate time to enable interested suppliers to initiate and, to the extent that it is compatible with efficient operation of the procurement process, complete the qualification procedures;
(b) any conditions for participation in tendering procedures shall be limited to those which are essential to ensure the potential supplier's capability to fulfill the contract in question;
(c) the process of, and the time required for, qualifying suppliers shall not be used in order to keep suppliers of the other Party off a suppliers' list or from being considered for a particular intended procurement. Entities shall recognize as qualified suppliers such suppliers of the other Party who meet the conditions for participation in a particular intended procurement. Suppliers requesting to participate in a particular intended procurement who may not yet be qualified shall also be considered, provided there is sufficient time to complete the qualification procedure;
(d) entities may maintain permanent lists of qualified suppliers. The entities shall ensure:
(i) that suppliers may apply for qualification at any time; and
(ii) that all qualified suppliers so requesting are included in the lists within a reasonably short time;
(e) if, after publication of the notice of procurement under paragraph 1 of Article 143, a supplier not yet qualified requests to participate in an intended procurement, the entity shall promptly start procedures for qualification; and
(f) any supplier having requested to become a qualified supplier shall be advised by the entities concerned of the decision in this regard.
2. Nothing in paragraph 1 shall preclude the exclusion of any supplier on grounds such as bankruptcy, liquidation or insolvency, or false declarations relating to a procurement, provided that such an action is consistent with the national treatment and non-discrimination provisions of this Chapter.
Article 143. Notice of Procurement
1. For each case of intended procurement, each Party shall ensure that its entities make publicly available in advance in the appropriate publication listed in Part 7 of Annex 14, a notice of procurement inviting interested suppliers to participate in that procurement, except as provided for in Article 147.
2. The information in each notice of procurement shall include a description of the intended procurement, any conditions that suppliers must fulfill to participate in the procurement, the name of the entity, the address where all documents relating to the procurement may be obtained and the time-limits for submission of tenders.
3. Each Party shall endeavor to ensure that its entities make publicly available notices of procurement in a timely manner through means which offer the widest possible and non-discriminatory access to interested suppliers. These means may be accessible free of charge, through a single electronic point of access.
4. If, after making publicly available a notice of procurement in any case of intended procurement, but before the time set for opening or receipt of tenders as specified in the notice or the tender documentation, it becomes necessary to amend or re-issue the notice, the amendment or the re-issued notice shall be made publicly available in the same manner as the original notice. Any significant information given to one supplier with respect toa particular intended procurement shall be given simultaneously to all other suppliers concerned in adequate time to permit the suppliers to consider such information and to respond to it.
Article 144. Time-Limits for Tendering
Each Party shall ensure that:
(a) any prescribed time-limit is adequate to allow suppliers of the other Party as well as domestic suppliers to prepare and submit tenders before the closing of the tendering procedures; and
(b) in determining any such time-limit, its entities, consistent with their own reasonable needs, take into account such factors as the complexity of the intended procurement, the extent of subcontracting anticipated, the normal time for transmitting tenders by mail from foreign as well as domestic points and the delays of making publicly available notices of procurement.
Article 145. Tender Documentation
1. Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders.
2. Each Party shall ensure that its entities make tender documentation accessible, or, upon request, forward the tender documentation, to any supplier participating in the tendering procedure, and reply promptly to any reasonable request for explanations relating thereto.
3. Each Party shall endeavor to ensure that its entities reply promptly to any reasonable request for relevant information submitted by a supplier participating in the tendering procedure, on condition that such information does not give that supplier an advantage over its competitors in the procedure for the award of the contract. The information provided to a supplier may be provided to any other suppliers that are invited to tender.
Article 146. Awarding of Contracts
1. To be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notice of procurement or tender documentation and be from a supplier which complies with the conditions for participation. If an entity has received a tender abnormally lower or otherwise exceptionally more advantageous than other tenders submitted, it may enquire with the tenderer to ensure that the tenderer can comply with the conditions of participation and be capable of fulfilling the terms of the contract.
2. Unless in the public interest an entity decides not to issue the contract, the entity shall make the award to the tenderer who has been determined to be fully capable of undertaking the contract and whose tender is either the lowest tender or determined to be the most advantageous in terms of the specific evaluation criteria set forth in the notice of procurement or tender documentation.
Article 147. Other Tendering Procedures
1. Articles 141 through 146 need not apply in the following conditions, provided that the tendering under this Article is not used by entities of a Party with a view to avoiding maximum possible competition or in a manner which would constitute a means of discrimination against the suppliers of the other Party or protection to domestic producers or suppliers:
(a) in the absence of tenders in response to the tender pursuant to Articles 141 through 146, or when the tenders submitted have been collusive in accordance with the laws and regulations of the former Party, or not in conformity with the essential requirements in the tender, or from suppliers who do not comply with the conditions for participation provided for in accordance with this Chapter, on condition that the requirements of the initial tender are not substantially modified in the contract as awarded;
(b) when, for works of art or for reasons connected with the protection of exclusive rights, such as patents or copyrights, or in the absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists;
(c) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the entity, the goods or services could not be obtained in time by means of the tendering procedures pursuant to Articles 141 through 146;
(d) for additional deliveries by the original supplier that are intended either as parts replacement for existing supplies, or installations, or as the extension of existing supplies, services, or installations, where a change of supplier would compel the entity to procure goods or services not meeting requirements of interchangeability with existing equipment, software, services or installations;
(e) when an entity procures prototypes or a first good or service which are developed at its request in the course of, and for, a particular contract for research, experiment, study or original development;
Note: Original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards. It does not extend to quantity production or supply to establish commercial viability or to recover research and development costs.
(f) when additional construction services which were not included in the initial contract but which were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein, provided that the total value of contracts awarded for additional construction services may not exceed 50 percent of the amount of the initial contract;
(g) for new construction services consisting of the repetition of similar construction services which conform to a basic project for which an initial contract was awarded in accordance with Articles 141 through 146 and for which the entity has indicated in the notice of procurement concerning the initial construction service, that the tendering procedures under this Article might be used in awarding contracts for such new construction services;
(h) for goods purchased on a commodity market;
(i) for purchases made under exceptionally advantageous conditions which only arise in the very short term. This provision is intended to cover unusual disposals by enterprises which are not normally suppliers, or disposal of assets of businesses in liquidation or receivership. It is not intended to cover routine purchases from regular suppliers; and
(j) in the case of contracts awarded to the winner of design contest provided that the contest has been organized in a manner which is consistent with the principles of this Chapter and that the contest is judged by an independent jury with a view to design contracts being awarded to the winners.
2. Each Party shall ensure that, whenever it is necessary for its entities to resort to the tendering procedures under paragraph 1, the entities maintain a record or prepare a written report providing specific justification for such procedures.
Article 148. Post-Award Information
1. Each Party shall ensure that its entities make publicly available, in an appropriate publication listed in Part 7 of Annex 14, after the award of each contract, information such as:
(a) the nature and quantity of goods or services in the contract award;
(b) the name and address of the entity awarding the contract;
(c) the date of award;
(d) the name and address of the winning tenderer;
(e) the value of the winning award; and
(f) the type of procedure used.