1. Each Party has the right to define the kind of universal service obligations it wishes to maintain and to decide on their scope and implementation. Each Party shall administer the universal service obligations in a transparent, objective, non-discriminatory and proportionate manner.
2. If the designation of a universal service provider is open to multiple service suppliers of telecommunications networks or services, such procedures shall be open to all service suppliers. The designation shall be made through an efficient, transparent and non-discriminatory mechanism.
Article 18.35. Confidentiality of Information
Each Party shall ensure the confidentiality of telecommunications and related traffic data transmitted by means of public telecommunications transport networks and public telecommunications transport services, subject to the requirement that measures applied to that end do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Article 18.36. Disputes between Suppliers
Each Party shall ensure that, in the event of a dispute arising between suppliers, the regulatory authority (1) concerned issues, on request of either party to the dispute, a binding decision to resolve the dispute in the shortest possible timeframe.
Article 18.37. International Mobile Roaming Services
1. Each Party shall endeavour to cooperate on promoting transparent and reasonable rates for international roaming services with a view to promoting the growth of trade between the Parties and enhancing consumer welfare.
2. Each Party shall ensure that suppliers of telecommunications services providing international mobile roaming services for voice, text messaging and data provide those services:
(a) with a similar quality to that provided to their own retail customers in their country of establishment; and
(b) with clear and readily available information in respect of access to the services and the prices thereof.
3. The Parties shall cooperate on monitoring the achievement of paragraphs 1 and 2 as well as on other issues related to international mobile roaming services that may be identified.
4. This Article does not oblige a Party to regulate rates or conditions for international mobile roaming services.
Subsection 5. FINANCIAL SERVICES
Article 18.38. Scope
This Sub-Section applies to measures by a Party affecting the supply of financial services.
Article 18.39. Definitions
1. For the purposes of this Sub-Section, the following definitions apply:
(a) "financial service" means any service of a financial nature offered by a financial service supplier of a Party; financial services comprise the following activities:
(i) insurance and insurance-related services:
(A) direct insurance (including co-insurance):
(1) life; and
(2) non-life;
(B) reinsurance and retrocession;
(C) insurance inter-mediation, 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 transaction;
(C) financial leasing;
(D) all payment and money transmission services, including credit, charge and debit cards, travellers cheques 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:
(1) money market instruments (including cheques, bills, certificates of deposits);
(2) foreign exchange;
(3) derivative products including, but not limited to, futures and options;
(4) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(5) transferable securities; and
(6) 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 the 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 points (A) to (K), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party, except public entities, wishing to supply or supplying financial services;
(c) "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 territory of a Party but which is supplied in the territory of the other Party;
(d) "self-regulatory organisation" means a non-governmental body, including any organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by delegation from a Party;
(e) "public entity" means:
(i) a government, a central bank or a monetary authority of a Party, or an 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
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
2. For the purposes of this Sub-Section and only in relation to services covered by this Sub-Section "services supplied in the exercise of governmental authority" means:
(a) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; and
(c) other activities conducted by a public entity for the account of, with the guarantee of, or using the financial resources of, the government.
If a Party allows any of the activities referred to in points (b) or (c) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, "financial services" shall include such activities, which will then fall within the scope of this Chapter.
3. The general definition of "services supplied in the exercise of governmental authority" included in Article 18.1(6) of this Chapter shall not apply to services covered by this Sub-Section.
Article 18.40. Prudential Carve-out
1. Nothing in this Part of the Agreement shall be construed as preventing a Party from taking measures for prudential reasons, including:
(a) the protection of investors, depositors, financial market participants, policyholders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(b) ensuring the integrity and stability of a Party's financial system.
2. If such measures do not conform with the provisions of this Sub-Section, they shall not be used as a means of avoiding the Party's commitments or obligations under this Sub-Section.
3. Nothing in this Part of the Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 18.41. Effective and Transparent Regulation In the Financial Services Sector
1. Each Party shall make its best endeavours to provide in advance to all interested persons any measure of general application that the Party proposes to adopt. Such a measure shall be provided:
(a) by means of an official publication; or
(b) in other written or electronic form.
2. Each Party's appropriate financial authority shall make available to interested persons its requirements for completing applications relating to the supply of financial services.
3. On the request of an applicant, the appropriate financial authority shall inform the applicant of the status of its application. If such authority requires additional information from the applicant, it shall notify the applicant without undue delay.
4. Each Party shall make its best endeavours to ensure that internationally agreed standards for regulation and supervision in the financial services sector and for the fight against tax evasion and avoidance are implemented and applied in its territory. Such internationally agreed standards include those adopted by the G20, the Financial Stability Board, the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors, the International Organisation of Securities Commissions, the Financial Action Task Force on Money Laundering, the Global Forum on Transparency and Exchange of Information for Tax Purposes of the OECD and the International Financial Reporting Standards. To this end, the Parties shall cooperate and exchange information and experience on these matters.
Article 18.42. New Financial Services
1. Each Party shall permit a financial services supplier of the other Party, established in its territory, to provide in its territory any new financial services within the scope of the sub-sectors of financial services committed in Annexes 18-A, 18-B, 18-C and 18-E and subject to the terms, limitations, conditions and qualifications established therein.
2. A new financial service shall be provided in accordance with the laws and regulations of the Party in whose territory it is intended to be supplied and is subject to the approval, regulation and supervision of the competent authorities of that Party.
Article 18.43. Recognition of Prudential Measures
1. A Party may recognise prudential measures of the other Party in determining how the Party's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement or may be accorded autonomously.
2. A Party that is party to an agreement or arrangement with a third country such as those referred to in paragraph 1, whether future or existing, shall afford adequate opportunity for the other Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the Parties to the agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances exist.
Article 18.44. Self-regulatory Organisations
1. If a Party requires membership or participation in, or access to, any self-regulatory organisation, in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial service suppliers of the Party, or if a Party provides directly or indirectly to a self-regulatory organisation privileges or advantages in supplying financial services, that Party shall ensure that such self-regulatory organisations observe the application of Article 18.4 to financial service suppliers established in the territory of that Party.
2. For greater certainty, nothing in this Article prevents a self-regulatory organisation referred to in paragraph 1 from adopting its own non-discriminatory requirements or procedures. Insofar as such measures are taken by non-governmental bodies and are not taken in relation to the exercise of powers delegated by central, regional, or local governments or authorities, they are not considered to be measures of a Party and do not fall within the scope of this Chapter.
Article 18.45. Payment and Clearing Systems
On the basis of regulatory requirements and in accordance with Article 18.4, each Party shall grant to financial services suppliers of the other Party established in its territory access to payment and clearing facilities operated by public entities and to official funding and refinancing available in the normal course of ordinary business. This Article is not intended to confer access to a Party's lender‑of‑last‑resort facilities (the national central bank or any other monetary authority).
Subsection 6. E-COMMERCE
Article 18.46. Objective and Scope
1. The Parties, recognising that electronic commerce increases trade opportunities in many economic activities, agree to promote the development of electronic commerce between them, including by co-operating on the issues raised by electronic commerce under the provisions of this Sub-Section.
2. This Sub-Section applies to measures that affect trade by electronic means.
3. The Parties recognise the principle of technological neutrality in electronic commerce.
4. The provisions of this Sub-Section shall not apply to gambling services, broadcasting services, audio-visual services, services of notaries or equivalent professions and legal representation services.
Article 18.47. Definitions
For the purposes of this Sub-Section:
(a) "consumer " means any natural person, or juridical person if provided for in national laws and regulations of each Party, using or requesting a public telecommunications transport service, defined in point (e) of Article 18.27, for purposes outside their trade, business or profession;
(b) "direct marketing communication" means any form of advertising by which a person communicates marketing messages directly to end-users via a public telecommunications network and, for the purposes of this Agreement, covers at least electronic mail, text and multimedia messages (SMS and MMS);
(c) "electronic authentication service" means a service that enables the confirmation of:
(i) the electronic identification of a person; or
(ii) the origin and integrity of data in electronic form;
(d) "electronic signature" means data in electronic form which is attached to or logically associated with other electronic data and fulfils the following requirements:
(i) it is used by a natural person to agree on the electronic data to which it relates;
(ii) it is linked to the electronic data to which it relates in such a way that any subsequent alteration in the data is detectable; and
(iii) it is used by a juridical person to ensure the origin and integrity of the electronic data to which it relates; and
(e) "end-user" means any person using or requesting a publicly available telecommunications service, either as a consumer or for trade, business or professional purposes.
Article 18.48. Customs Duties on Electronic Transmissions
1. A Party shall not impose custom duties on electronic transmissions between a person of one Party and a person of the other Party.
2. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees, or other charges on electronic transmissions, provided that such taxes, fees, or charges are imposed in a manner consistent with this Part of the Agreement.
Article 18.49. Principle of No Prior Authorisation
1. The Parties shall endeavour not to require prior authorisation of the supply of a service by electronic means solely on the ground that the service is provided by electronic means or to adopt or maintain any other requirement having equivalent effect.
2. Paragraph 1 does not apply to telecommunications services as defined in point (i) of Article 18.27 and financial services as defined in point (a) of Article 18.39(1).
3. For greater certainty, nothing shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 to achieve a legitimate public policy objective in accordance with:
(a) Article 18.1(4);
(b) Article 18.40;
(c) Article 28.1; and
(d) Article 28.2.
Article 18.50. Conclusion of Contracts by Electronic Means
Each Party shall ensure that their legal system allows contracts to be concluded by electronic means and that its laws and regulations regarding contractual processes neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effect and validity on the ground that they have been made by electronic means, unless provided for in their laws and regulations (1).
Article 18.51. Electronic Signature and Authentication Services
1. A Party shall not deny the legal effect and admissibility as evidence in legal proceedings of an electronic signature and electronic authentication service solely on the basis that it is in electronic form.
2. A Party shall not adopt or maintain measures regulating electronic signature and electronic authentication services that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic methods for their transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to prove to judicial and administrative authorities that their electronic transaction complies with any legal requirements with respect to electronic signature and electronic authentication services.
Article 18.52. Unsolicited Direct Marketing Communications
1. Each Party shall endeavour to effectively protect end-users against unsolicited direct marketing communications.
2. Each Party shall endeavour to ensure that persons do not send direct marketing communications to consumers who have not given their consent (1) to receive such communications.
3. Notwithstanding paragraph 2, each Party shall allow persons which have collected, in accordance with its laws and regulations, a consumer's contact details in the context of the sale of a product or a service, to send direct marketing communications to that consumer for their own similar products or services.
4. Each Party shall endeavour to ensure that direct marketing communications are clearly identifiable as such, clearly disclose on whose behalf they are made and contain the necessary information to enable end-users to request cessation free of charge and at any moment.
Article 18.53. Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers, including from fraudulent and misleading commercial practices, when they engage in electronic commerce transactions.
2. For the purposes of paragraph 1, the Parties shall adopt or maintain measures that contribute to consumer trust, including measures that proscribe fraudulent and deceptive commercial practices. Such measures shall provide for, among others:
(a) the right of consumers to clear and thorough information regarding the service and its provider;
(b) the obligation of traders to act in good faith and abide by honest market practices, including in response to questions by consumers;
(c) the prohibition of charging consumers for services not requested or for a period in time not authorised by the consumer; and
(d) access to redress for consumers to claim their rights, including as regards their right to remedies for services paid and not provided as agreed.
3. The Parties recognise the importance of cooperation between their respective agencies in charge of consumer protection or other relevant bodies on activities related to electronic commerce, in order to protect consumers and enhance consumer trust.
Article 18.54. Regulatory Cooperation on E-commerce
1. The Parties shall maintain cooperation and dialogue on the regulatory issues raised by electronic commerce on the basis of mutually agreed terms and conditions, which shall address the following issues, among others:
(a) the recognition and facilitation of interoperable cross-border electronic signature and authentication services;
(b) the liability of intermediary service providers with respect to the transmission or storage of information;
(c) the treatment of direct marketing communications;
(d) the protection of consumers in the ambit of electronic commerce;
(e) the promotion of paperless trading; and
(f) any other issue relevant to the development of electronic commerce.
2. The cooperation referred to in paragraph 1 shall focus on exchange of information on the Parties' respective laws and regulations on these issues as well as on the implementation of such laws and regulations.
Article 18.55. Understanding on Computer Services
1. The Parties agree that, for the purposes of liberalising trade in services in accordance with Articles 18.3 and 18.4, the following shall be considered as computer and related services, regardless of whether they are delivered via a network, including the Internet:
(a) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance, or management of or for computers or computer systems;
(b) computer programmes defined as the sets of instructions required to make computers work and communicate (in and of themselves), plus consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for computer programmes;
(c) data processing, data storage, data hosting or database services;
(d) maintenance and repair services for office machinery and equipment, including computers; and
(e) training services for staff of clients, related to computer programmes, computers or computer systems, and not elsewhere classified.
2. For greater certainty, services enabled by computer and related services shall not necessarily be regarded as computer and related services in themselves.