(b) substantially prevents competition among those suppliers in its territory.
Article 7.10. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 7.9 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. A Party shall, at the request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1 of this Article. The Party addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its domestic laws and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 7.11. Payments and Transfers
1. Except under the circumstances envisaged in Article 7.12 (Restrictions to Safeguard the Balance-of-Payments), 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 IMF under the Articles of Agreement of the International Monetary 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 7.12 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
Article 7.12. 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 obligations under Article 7.3 (Market Access) and Article 7.4 (National Treatment), including on payments or transfers for transactions relating to such obligations. 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 of this Article:
(a) shall not discriminate among WTO Members;
(b) shall be consistent with the Articles of Agreement of the International Monetary Fund;
(c) shall avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(e) shall not exceed those necessary to deal with the circumstances described in paragraph 1 of this Article;
(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 of this Article improves.
3. In determining the incidence of such restrictions, a Party may give priority to the supply of services which are more essential to its economic or 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 of this Article, or any changes therein, shall be promptly notified to the other Party.
5. The Party adopting any restrictions under paragraph 1 of this Article shall commence consultations with the other Party in order to review the restrictions adopted by it.
Article 7.13. 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 of this Article 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 of this Article. Each Party shall also use the existing enquiry points or, when they do not exist, establish one or more enquiry points to provide specific information to the other Party, upon request, on all such matters.
Article 7.14. Disclosure of Confidential Information
Nothing in this Chapter 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 7.15. Relationship with Chapter 10 (Investment)
1. Chapter 10 (Investment) does not apply to measures adopted or maintained by a Party to the extent that they are covered by this Chapter.
2. Notwithstanding paragraph 1 of this Article, the following Articles and Section of Chapter 10 (Investment) shall apply, mutatis mutandis, to any measure affecting the supply of services by a service supplier of a Party through commercial presence in the territory of the other Party:
(a) Article 10.3 (Minimum Standard of Treatment);
(b) Article 10.6 (Compensation for Losses);
(c) Article 10.10 (Expropriation);
(d) Article 10.11 (Transfers);
(e) Article 10.12 (Subrogation); and
(f) Section 10-B (Investment Disputes between a Party and an Investor),
but only to the extent that any such measures relate to a covered investment and an obligation under Chapter 10 (Investment), regardless of whether such a service sector is scheduled in the Party’s Schedule of Specific Commitments in Annexes 7-A (Sri Lanka) and 7-B (Singapore).
Article 7.16. Denial of Benefits
1. Subject to prior notification and consultation, 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 non-Party;
(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;
(c) to a service supplier of the other Party where the Party establishes that the service supplier is owned or controlled by persons of a non-Party and that it has no substantive business operations in the territory of a Party.
Chapter 8. TELECOMMUNICATIONS
Article 8.1. Definitions
For purposes of this Chapter:
(a) “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;
(b) “cost-oriented” means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
(c) “end-user” means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
(d) “enterprise” means an entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organisation, and a branch of an enterprise;
(e) “essential facilities” means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to supply a service;
(f) “interconnection” means linking with suppliers providing public telecommunications services or networks in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
(g) “international mobile roaming service” means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables end-users to use their home mobile handset or other device for voice, data or messaging services while outside the territory in which the end-user’s home public telecommunications network is located;
(h) “leased circuits” means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a particular user;
(i) “licence” means any authorisation that a Party may require of a person, in accordance with its laws and regulations, in order for such person to offer a telecommunications service, including concessions, permits, or registrations;
(j) “major supplier” means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
(k) “network element” means a facility or equipment used in supplying a public telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;
(l) “non-discriminatory” means treatment no less favourable than that accorded to any other user of like public telecommunications services in like circumstances, including with respect to timeliness;
(m) “number portability” means the ability of end-users of public telecommunications services to retain the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
(n) “physical co-location” means physical access to and control over space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a major supplier to provide public telecommunications services;
(o) “public telecommunications network” means telecommunications infrastructure used to provide public telecommunications services between defined network termination points;
(p) “public telecommunications service” means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving the real-time transmission of customer-supplied information between two or more defined points without any end-to-end change in the form or content of the customer’s information;
(q) “reference interconnection offer” means an interconnection offer extended by a major supplier and filed with, approved by, or determined by a telecommunications regulatory body that sufficiently details the terms, rates, and conditions for interconnection, such that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;
“service supplier” means a person of a Party that seeks to supply or supplies a service;
“telecommunications” means the transmission and reception of signals by any electromagnetic means, including by photonic means;
“telecommunications regulatory body” means a body or bodies responsible for the regulation of telecommunications;
“user” means a service consumer or a service supplier; and
“virtual co-location” means an arrangement whereby a requesting supplier seeking co-location may specify equipment to be used in the premises of a major supplier but does not obtain physical access to such premises and allows the major supplier to install, maintain, and repair such equipment.
Article 8.2. Scope and Coverage
1. This Chapter shall apply to measures affecting trade in telecommunications services.
2. This Chapter shall not apply to any measure affecting broadcasting.
3. Nothing in this Chapter shall be construed to require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate, or provide telecommunications networks or services not offered to the public generally.
Article 8.3. Access to and Use of Public Telecommunications Services （1）
1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications service offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions.
2. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with, a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect owned or leased circuits with public telecommunications networks or services, or with circuits leased or owned by another enterprise;
(d) perform switching, signalling, processing or conversion functions; and
(e) use operating protocols of their choice.
3. Each Party shall ensure that service suppliers of the other Party may use public telecommunications services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3 of this Article, a Party may take such measures as are necessary to ensure the security and confidentiality of messages and protect the privacy of personal data of end-users of public telecommunications networks or services, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that they satisfy the criteria set out in paragraph 5 of this Article, conditions
for access to and use of public telecommunications networks or services may include:
(a) requirements to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(b) requirements, where necessary, for the inter-operability of such networks or services;
(c) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks; and
(d) licensing, permit, registration or notification procedures which, if adopted or maintained, are transparent and provide for the processing of applications filed thereunder in accordance with the Party’s domestic laws and regulations.
Article 8.4. Competitive Safeguards on Major Suppliers
Each Party shall introduce or maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks or services who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. Such anti- competitive practices shall include in particular:
(a) engaging in anti-competitive cross-subsidisation, price squeeze or predatory pricing;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other suppliers of public telecommunications networks or services, on a timely basis, technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
Article 8.5. Interconnection
1. Each Party shall ensure that any service supplier authorised to provide public telecommunications networks or services has the right and obligation to negotiate interconnection with other suppliers of public telecommunications networks or services. Interconnection should be agreed on the basis of commercial negotiations (2) between the parties concerned. (3)
2. The telecommunications regulatory body of each Party shall ensure that any supplier authorised to provide public telecommunications networks or services that acquires information from another supplier of public telecommunications networks or services during the process of negotiating interconnection arrangements, uses that information solely for the purpose for which it was supplied and respects, at all times, the confidentiality of information transmitted or stored.
Article 8.6. Interconnection with a Major Supplier
1. Each Party shall ensure that any major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications networks or services of the other Party at any technically feasible point in the major supplier’s network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including technical standards and specifications) and rates, and of a quality no less favourable than that provided for its own like services, for like services of non-affiliated service suppliers, or for like services of its subsidiaries or other affiliates;
(b) in a timely fashion, on terms and conditions (including technical standards and specifications) and at cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that the procedures applicable for interconnection with a major supplier in its territory are made publicly available.
3. Each Party shall provide a means for suppliers of public telecommunications networks or services of the other Party to obtain the rates, terms and conditions necessary for interconnection offered by a major supplier. Such means include, at a minimum, ensuring the public availability of:
(a) interconnection agreements in effect between a major supplier in its territory and other suppliers of public telecommunications networks or services in its territory;
(b) rates, terms and conditions for interconnection with a major supplier set by the telecommunications regulatory body; or
(c) a reference interconnection offer.
4. Further to paragraphs 2 and 3 of this Article, each Party shall ensure that a major supplier in its territory provides suppliers of public telecommunications networks or services of the other Party the opportunity to interconnect their facilities and equipment with those of the major supplier through the following options:
(a) a reference interconnection offer or another standard interconnection offer containing the rates, terms and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services; or
(b) the terms and conditions of an interconnection agreement in effect.
5. In addition to the options provided in paragraph 4 of this Article, each Party shall ensure that suppliers of public telecommunications networks or services of the other Party have the opportunity to interconnect their facilities and equipment with those of the major supplier through negotiation of a new interconnection agreement.
Article 8.7. Co-Location by Major Suppliers
1. Each Party shall endeavour to ensure that a major supplier in its territory provides, to suppliers of public telecommunications networks or services of the other Party in the Party’s territory, physical co-location of equipment necessary for interconnection, or access to unbundled network elements on a timely basis and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and based on a generally available offer.
2. Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that a major supplier in its territory provides an alternative solution such as facilitating virtual co-location on a timely basis and on terms and conditions, and at cost-oriented rates, that are reasonable, non- discriminatory and based on a generally available offer.
3. Each Party may determine, in accordance with its laws and regulations, which premises owned or controlled by major suppliers in its territory are subject to paragraphs 1 and 2 of this Article. When making this determination, the Party shall take into account factors such as the state of competition in the market in which co- location is required, whether such premises can feasibly be economically or technically substituted in order to provide a competing service, or other specified public interest factors.
4. If a Party does not require that a major supplier offer co-location at certain premises, it nonetheless shall allow service suppliers to request that those premises be offered for co-location consistent with paragraph 1 of this Article, without prejudice to the Party’s decision on such a request.
Article 8.8. Access to Poles, Ducts, Conduits and Rights-of-Way Owned or Controlled by Major Suppliers
1. Each Party shall endeavour to ensure that a major supplier in its territory provides, to suppliers of public telecommunications networks or services of the other Party in the first Party’s territory, access to poles, ducts, conduits, and rights-of-way, or any other structures as determined by the Party, owned or controlled by the major supplier on a timely basis and on terms and conditions, and at rates, that are reasonable, non- discriminatory, and transparent and subject to technical feasibility.
2. Each Party may determine, in accordance with its laws and regulations, the poles, ducts, conduits, rights-of-way or any other structures to which it requires major suppliers in its territory to provide access under paragraph 1 of this Article. When making this determination, the Party shall take into account factors such as the competitive effect of lack of such access, whether such structures can feasibly be economically or technically substituted in order to provide a competing service, or other specified public interest factors.
Article 8.9. Licensing Process
1. When a Party requires a supplier of public telecommunications networks or services to have a licence, the Party shall ensure the public availability of the following information:
(a) all the licensing criteria and procedures it applies;
(b) the period it normally requires to reach a decision concerning an application for a licence; and
(c) the terms and conditions of all licences in effect.
2. Each Party shall ensure that, on request, an applicant receives the reasons for the:
(a) denial of a licence;
(b) imposition of supplier-specific conditions on a licence;
(c) revocation of a licence; or
(d) refusal to renew a licence.
Article 8.10. Allocation and Use of Scarce Resources
1. Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, timely, transparent and non-discriminatory manner.
2. The current state of allocated frequency bands shall be made publicly available, but detailed identification of frequencies allocated for specific government uses is not required.
3. A Party’s measures allocating and assigning spectrum and managing frequencies shall not be considered as inconsistent with Article 7.3 (Market Access) of Chapter 7 (Trade in Services) or Article 10.7 (Performance Requirements) of Chapter 10 (Investment). Accordingly, each Party retains the right to establish and apply its spectrum and frequency management policies that may have the effect of limiting the number of suppliers of a public telecommunications network or service, provided it does so in a manner consistent with other provisions of this Agreement. This includes the ability to allocate frequency bands, taking into account present and future needs, and spectrum availability.
4. When making a spectrum allocation for commercial telecommunications services, each Party shall endeavour to rely on an open and transparent process that considers the public interest, including the promotion of competition. Each Party shall endeavour to rely generally on market-based approaches in assigning spectrum for terrestrial commercial telecommunications services. To this end, each Party shall have the authority to use appropriate mechanisms, including auctions, to assign spectrum for commercial use.
Article 8.11. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to maintain.
2. Such obligations shall not be regarded as anti-competitive per se, provided they are administered in a transparent, objective and non-discriminatory way. The administration of such obligations shall also be neutral with respect to competition and not be more burdensome than necessary for the kind of universal service defined by each Party.
3. Where applicable, any fund that has been set up by a Party for the purposes of universal services shall be used in accordance with the relevant legislation of the Party.
Article 8.12. Number Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability, in accordance with its laws and regulations, on reasonable terms and conditions, and without impairment to quality and reliability of the service or convenience to the end-users.
Article 8.13. International Submarine Cable Systems
1. Where under national law and regulation, a Party has authorised a supplier of public telecommunications services in its territory to operate a submarine cable system (including the landing facilities and services) as a public telecommunications service, that Party shall ensure that such supplier provides that public telecommunications service to suppliers of public telecommunications services of the other Party on reasonable terms, conditions, and rates that are no less favourable than such supplier offers to any other supplier of public telecommunications services in like circumstances.
2. Where submarine cable landing facilities and services cannot be economically or technically substituted, and a major supplier of public international telecommunication services that controls such cable landing facilities and services has the ability to materially affect the price and supply for those facilities and services for the provision of public telecommunications services in a Party’s territory, that Party shall ensure that such major supplier: