(a) permits suppliers of public telecommunications services of the other Party to:
(i) use the major supplier’s cross-connect links in the submarine cable landing station to connect their equipment to backhaul links and submarine cable capacity of any supplier of telecommunications; and
(ii) co-locate their transmission and routing equipment used for accessing submarine cable capacity and backhaul links at the submarine cable landing station at terms, conditions, and cost-oriented rates, that are reasonable and non-discriminatory; and
(b) provides suppliers of telecommunications of the other Party submarine cable capacity, backhaul links and cross-connect links in the submarine cable landing station at terms, conditions and rates that are reasonable and non- discriminatory.
Article 8.14. Independent Regulators
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest (4) or maintain an operating or management role in any supplier of public telecommunications services.
2. Each Party shall ensure that the regulatory decisions and procedures of its telecommunications regulatory body or other competent authority related to provisions contained in this Chapter are impartial with respect to all market participants.
3. A Party shall not accord more favourable treatment to a supplier of telecommunications services in its territory than that accorded to a like service supplier of the other Party on the basis that the supplier receiving more favourable treatment is owned by the national government of that Party.
Article 8.15. International Mobile Roaming
1. The Parties shall endeavour to co-operate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade between the Parties and enhance consumer welfare.
2. A Party may choose to take steps to enhance transparency and competition with respect to international mobile roaming rates and technological alternatives to roaming services, such as:
(a) ensuring that information regarding retail rates is easily accessible to consumers; and
(b) minimising impediments to the use of technological alternatives to roaming, whereby consumers when visiting the territory of a Party from the territory of the other Party can access telecommunications services using the devices of their choice, including mobile devices.
3. The Parties recognise that a Party, when it has the authority to do so, may choose to adopt or maintain measures affecting rates for wholesale international roaming services with a view to ensuring that those rates are reasonable. If a Party considers it appropriate, it may co-operate and implement mechanisms with the other Party to facilitate the implementation of those measures, including by entering into arrangements with the other Party.
4. If a Party (“the first Party”) chooses to regulate rates or conditions for wholesale international mobile roaming services, it shall ensure that a supplier of public telecommunications services of the other Party (“the second Party”) has access to the regulated rates or conditions for wholesale international mobile roaming services for its customers roaming in the territory of the first Party in circumstances in which: (5)
(a) the second Party has entered into an arrangement with the first Party to reciprocally regulate rates or conditions for wholesale international mobile roaming services for suppliers of both Parties; (6) or
(b) in the absence of an arrangement of the type referred to in sub-paragraph (a) above, the supplier of public telecommunications services of the second Party, of its own accord:
(i) makes available to suppliers of public telecommunications services of the first Party wholesale international mobile roaming services at rates or conditions that are reasonably comparable to the regulated rates or conditions; (7) and
(ii) meets any additional requirements (8) that the first Party imposes with respect to the availability of the regulated rates or conditions.
The first Party may require suppliers of the second Party to fully utilise commercial negotiations to reach agreement on the terms for accessing such rates or conditions.
5. A Party that ensures access to regulated rates or conditions for wholesale international mobile roaming services in accordance with paragraph 4 of this Article shall be deemed to be in compliance with its obligations under Article 8.3 (Access to and Use of Public Telecommunications Services) and Article 8.6 (Interconnection with a Major Supplier) with respect to international mobile roaming services.
6. Each Party shall endeavour to ensure that:
(a) suppliers of public telecommunications services in its territory; or
(b) its telecommunications regulatory body, make publicly available retail rates for international mobile roaming services.
7. Nothing in this Article shall require a Party to regulate rates or conditions for international mobile roaming services.
Article 8.16. Resolution of Telecommunications Disputes
1. Each Party shall ensure that:
Recourse
(a) service suppliers authorised by the telecommunications regulatory body of a Party to provide public telecommunications networks or services in its territory may have recourse to the telecommunications regulatory body or other relevant body of the Party to resolve disputes regarding the Party’s measures relating to matters set out in Articles 8.3 to 8.15 of this Chapter;
(b) if the telecommunications regulatory body or other relevant body of the Party declines to initiate any action on a request to resolve a dispute, it shall, upon request, provide a written explanation for its decision within a reasonable period of time;
(c) suppliers of public telecommunications networks or services requesting interconnection with a major supplier in its territory will have recourse, either:
(i) at any time; or
(ii) after a reasonable or specified period of time which has been made publicly known,
to an independent domestic body, which may be a telecommunications regulatory body as referred to in Article 8.14 (Independent Regulators), to resolve disputes regarding appropriate terms, conditions and rates for interconnection within a reasonable period of time, to the extent that these have not been established previously.
Reconsideration
(d) any enterprise whose legally protected interests are adversely affected by a determination or decision of the Party’s telecommunications regulatory body may appeal to or petition the telecommunications regulatory body, or other relevant body, including judicial body, in accordance with its laws and regulations, to reconsider that determination or decision. No Party may permit the making of an application for reconsideration to constitute grounds for non- compliance with the determination or decision of the telecommunications regulatory body, unless the telecommunications regulatory body or other relevant body issues an order that the determination or decision not be enforced while the proceeding is pending. A Party may limit the circumstances under which an application for reconsideration is available, in accordance with its laws and regulations.
Judicial Review
2. No Party may permit the making of an application for judicial review to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless the relevant judicial body issues an order that the determination or decision not be enforced while the proceeding is pending.
Article 8.17. Transparency
1. Each Party shall ensure that when its telecommunications regulatory body seeks input for a proposal for a regulation, that body shall:
(a) make the proposal public or otherwise available to any interested persons;
(b) include an explanation of the purpose of and reasons for the proposal;
(c) provide interested persons with adequate public notice of the ability to
comment and reasonable opportunity for such comment;
(d) to the extent practicable, make publicly available all relevant comments filed with it; and
(e) respond to all significant and relevant issues raised in comments filed, in the course of issuance of the final regulation.
2. A Party shall ensure that its measures relating to public telecommunications networks or services are made publicly available, including those pertaining to:
(a) tariffs and other terms and conditions of service;
(b) specifications of technical interfaces;
(c) conditions for attaching terminal or other equipment to the public telecommunications network;
(d) notification, permit, registration or licensing requirements, if any;
(e) general procedures relating to resolution of telecommunications disputes provided for in Article 8.16 (Resolution of Telecommunications Disputes); and
(f) any measures of the telecommunications regulatory body through which the responsibility for preparing, amending and adopting standards-related measures affecting access and use are delegated to other bodies.
Article 8.18. Flexibility In the Choice of Technology
No Party may prevent suppliers of public telecommunications networks or services from choosing the technologies they wish to use to supply their services, subject to its national laws and regulations or requirements necessary to satisfy legitimate public policy interests, provided that any measure restricting such choice is not prepared, adopted, or applied in a manner that creates unnecessary obstacles to trade. For greater certainty, a Party adopting such measures shall do so consistent with Article 8.17 (Transparency).
Article 8.19. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Chapter 9. ELECTRONIC COMMERCE
Article 9.1. Definitions
For purposes of this Chapter:
(a) “computing facilities” means computer servers and storage devices for processing or storing information for commercial use, and does not include facilities used for the supply of public telecommunications services (“PTS”);
(b) “covered person” means:
(a) an investment as defined in Article 10.1 (Definitions);
(b) an investor of a Party as defined in Article 10.1 (Definitions), but does not include an investor in a financial institution; (1) or
(c) a service supplier of a Party as defined in Article 7.1 (Definitions),
but does not include a “financial institution” or a “financial service supplier” as defined in Paragraph 8 (Definitions) of the Annex on Financial Services to Chapter 7 (Trade in Services).
(c) “broadcasting” means the transmission of signs or signals via any technology for the reception and/or display of aural and/or visual programme signals by all or part of the public;
(d) “digital products” means computer programs, text, video, images, sound recordings, and other products that are digitally encoded and produced for commercial sale or distribution, and transmitted electronically. For greater certainty, digital products do not include digitised representations of financial instruments, including money;
(e) “electronic authentication” means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;
(f) “electronic transmission or transmitted electronically” means transmissions made using any electromagnetic means, including by photonic means;
(g) “personal data” means any data, including information, about an identified or identifiable natural person;
(h) “trade administration documents” means forms a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.
Article 9.2. Scope and General Provisions
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade by electronic means.
2. The Parties recognise the economic growth and opportunities provided by electronic commerce, and the importance of promoting consumer confidence in electronic commerce and of avoiding barriers to its use and development.
3. For greater certainty, measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of:
(a) Chapter 7 (Trade in Services), including:
(i) any applicable terms, limitations and conditions on market access; and
(ii) any applicable conditions and qualifications on national treatment,
adopted or maintained in accordance with Article 7.6 (Schedule of Specific Commitments) and specified in the Schedules of Specific Commitments in Annex 7-A (Sri Lanka) and Annex 7-B (Singapore); and
(b) Chapter 10 (Investment), including the measures adopted or maintained in accordance with paragraph 8 Article 12.2 (Scope and Coverage) and set out in the Schedules in Annex 10-B (Sri Lanka) and Annex 10-C (Singapore) .
4. The obligations contained in Article 9.4 (Non-Discriminatory Treatment of Digital Products), Article 9.9 (Cross-Border Transfer of Information by Electronic Means) and Article 9.10 (Location of Computing Facilities) shall not apply to the following:
(a) in respect of Chapter 7 (Trade in Services):
(i) the terms, limitations and conditions on market access; and
(ii) the conditions and qualifications on national treatment,
adopted or maintained in accordance with Article 7.6 (Schedule of Specific Commitments) and specified in the Schedules of Specific Commitments in Annex 7-A (Sri Lanka) and Annex 7-B (Singapore); and
(b) in respect of Chapter 10 (Investment), the measures adopted or maintained in accordance with paragraph 8 of Article 12.2 (Scope and Coverage) and set out in the Schedules in Annex 10-B (Sri Lanka) and Annex 10-C (Singapore).
5. This Chapter shall not apply to:
(a) government procurement; or
(b) information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.
Article 9.3. Customs Duties
1. Each Party shall maintain its practice of not imposing customs duties on electronic transmissions between the Parties, consistent with paragraph 3 of the WTO Ministerial Decision of 13 December 2017 in relation to the Work Programme on Electronic Commerce (WT/MIN(17)/W/6) as well as future WTO Ministerial Decisions which continue the non-imposition of custom duties on electronic transmissions.
2. Each Party reserves the right to adjust its practice referred to in paragraph 1 of this Article in accordance with any future WTO Ministerial Decisions in relation to the Work Programme on Electronic Commerce.
Article 9.4. Non-Discriminatory Treatment of Digital Products
1. No Party may accord less favourable treatment to digital products created, produced, published, contracted for, commissioned or first made available on commercial terms in the territory of the other Party, or to digital products of which the author, performer, producer, developer or owner is a person of the other Party than it accords to other like digital products. (2)
2. The Parties understand that this Article does not apply to subsidies or grants provided by a Party including government-supported loans, guarantees and insurance.
3. This Article does not apply to any measure affecting broadcasting.
Article 9.5. Domestic Electronic Transactions Framework
1. The Parties shall, to the extent possible, maintain domestic legal frameworks governing electronic transactions consistent with the principles of the UN Convention on the Use of Electronic Communications in International Contracts (New York, 2005) to which both Parties are party to.
2. The Parties shall endeavour to avoid any unnecessary regulatory burden on electronic transactions.
Article 9.6. Electronic Authentication and Electronic Signatures
1. Except where otherwise provided for in its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form as provided within the framework of the UN Convention on the Use of Electronic Communications in International Contracts (New York, 2005).
2. No Party may adopt or maintain measures for electronic authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties from having the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with any legal requirements with respect to authentication.
3. Notwithstanding paragraph 2 of this Article, a Party may require that, for a particular category of transactions, the method of authentication meet certain performance standards prescribed, or be certified by an authority accredited, in accordance with the Party’s laws and regulations.
4. The Parties shall encourage the use of interoperable electronic authentication.
Article 9.7. Personal Data Protection
1. The Parties recognise the economic and social benefits of protecting the personal data of users of electronic commerce and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt such domestic legal framework, that each Party may consider adequate, for the protection of the personal data of users of electronic commerce.
Article 9.8. Paperless Trading
The Parties shall endeavour to:
(a) make trade administration documents available to the public in electronic form; and
(b) accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 9.9. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognise that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. Each Party shall allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 of this Article to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 9.10. Location of Computing Facilities
1. The Parties recognise that each Party may have its own regulatory requirements regarding the use of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. No Party shall require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 of this Article to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 9.11. Online Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and deceptive commercial activities when they engage in electronic commerce.
2. For the purposes of this Article, fraudulent and deceptive commercial refers to those fraudulent and deceptive commercial practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example, a practice of:
(a) making a misrepresentation of material fact, including factual misrepresentation, that causes significant detriment to the economic interests of a misled consumer;
(b) failing to deliver products or provide services to a consumer after the consumer is charged; or
(c) charging or debiting a consumer’s financial, telephone or other accounts without authorisation.
3. Each Party shall adopt or maintain consumer protection laws to proscribe fraudulent and deceptive commercial activities that cause harm or potential harm to consumers engaged in online commercial activities.
4. The Parties recognise the importance of co-operation between their respective national consumer protection agencies or other relevant bodies on activities related to cross- border electronic commerce in order to enhance consumer welfare. To this end, the Parties affirm that the co-operation sought includes cooperation with respect to online commercial activities.
Article 9.12. Co-operation
Recognising the global and inter-connected nature of electronic commerce, the Parties shall endeavour to:
(a) work together to assist small and medium enterprises to overcome obstacles encountered in the use of electronic commerce;
(b) explore collaborative efforts in the recognition of professional certifications in the ICT sector; and
(c) exchange information and share experiences on regulations, policies, enforcement and compliance regarding electronic commerce, including:
(i) personal information protection;
(ii) security in electronic communications;
(iii) authentication; and
(iv) e-Government.
Chapter 10 . Investment
Article 10.1 . Definition
For the purposes of this Chapter:
(a) “claimant” means an investor of a Party that is a party to an investment dispute with the other Party;