1. The telecommunications regulatory body shall be an independent body, legally distinct from and functionally independent of any person providing public telecommunications networks, equipment and/or services.
2. The telecommunications regulatory body shall be empowered to regulate the telecommunications services sector and shall have adequate financial and human resources to carry out its tasks. The tasks to be undertaken by a telecommunications regulatory body shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
3. The telecommunications regulatory body shall exercise its powers transparently and in a timely manner. The decisions of, and the procedures used by, the telecommunications regulatory body shall be impartial with respect to all market participants.
Article 8.15. International Mobile Roaming
1. The Parties shall endeavour to cooperate 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 device of their choice.
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 (Access to and Use of Public Telecommunications Services) to 8.15 (International Mobile Roaming);
(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 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 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. When the telecommunications regulatory body of a Party intends to take measures related to the provisions of this Chapter, it shall give interested parties the opportunity to comment on the draft measure within a reasonable period of time in accordance with the domestic law of the Party. The telecommunications regulatory body shall make publicly available its consultation procedures for such draft measures.
2. A Party shall ensure that its measures relating to public telecommunications networks or services are made publicly available, including:
(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 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:
“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;
“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;
“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;
“electronic transmission or transmitted electronically” means transmissions made using any electromagnetic means, including by photonic means;
“personal data” means any data, including information, about an identified or identifiable natural person;
“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 Chapter 7 (Cross-Border Trade in Services), Chapter 10 (Financial Services), and Chapter 12 (Investment), including any exceptions and non-conforming measures set out in Article 7.6 (Non-Conforming Measures) of Chapter 7 (Cross-Border Trade in Services), Article 10.6 (Non-Conforming Measures) of Chapter 10 (Financial Services), or Article 12.9 (Non-Conforming Measures) of Chapter 12 (Investment) that are applicable to such obligations.
4. This Chapter shall not apply to government procurement.
Article 9.3. Customs Duties
1. No Party may impose customs duties on electronic transmissions, including content transmitted electronically between a person of a Party and a person of the other Party.
2. For greater certainty, nothing in paragraph 1 shall preclude a Party from imposing internal taxes, fees, or other charges on content transmitted electronically, provided that such taxes, fees or charges are imposed in a manner consistent with this Agreement.
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. (8)
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 UNCITRAL Model Law on Electronic Commerce (1996) or the UN Convention on the Use of Electronic Communications in International Contracts (New York, 2005).
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.
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, a Party may require that, for a particular category of transactions, the method of authentication meet certain performance standards 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 (9)
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 or maintain a domestic legal framework that provides for the protection of the personal data of users of electronic commerce.
3. The Parties shall publish information on the personal data protections it provides to users of electronic commerce, including:
(a) how individuals can pursue remedies; and
(b) how business can comply with any legal requirements.
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. Cooperation
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) recognise the professional certifications of each other’s ICT professional bodies and explore other collaborative efforts in this area; 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. FINANCIAL SERVICES
Article 10.1. Definitions
For the purposes of this Chapter:
“cross-border financial service supplier of a Party” means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such services;
“cross-border trade in financial services” or “cross-border supply of financial services” means the supply of a financial service:
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of one Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the supply of a financial service in the territory of a Party by an investor of the other Party, or investments of such investors, in financial institutions in the Party’s territory;
“enterprise” means any 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;
“enterprise of a Party” means an enterprise constituted or organised under the law of a Party, and a branch (10) located in the territory of a Party, and carrying out substantive business activities there;
“financial institution” means any financial intermediary or other enterprise that is authorised to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
“financial institution of the other Party” means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party;
“financial service” means any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
(a) Insurance and insurance-related services:
(i) direct insurance (including co-insurance):
(A) life;
(B) non-life;
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency; and
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.
(b) Banking and other financial services (excluding insurance):
(i) acceptance of deposits and other repayable funds from the public;
(ii) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transactions;
(iii) financial leasing;
(iv) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(v) guarantees and commitments;
(vi) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills and certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities; and
(F) other negotiable instruments and financial assets, including bullion.
(vii) 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;
(viii) money broking;
(ix) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(x) settlement and clearing services for financial assets, including securities, derivative products and other negotiable instruments;
(xi) provision and transfer of financial information, and financial data processing and related software; and
(xii) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (i) through (xi), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
“financial service supplier” means any person of a Party that seeks to supply or supplies financial services; but the term “financial service supplier” does not include a public entity;
“investment” means “investment” as defined in Article 12.1 (Definitions) of Chapter 12 (Investment), except that, with respect to “loans” and “debt instruments” referred to in that Article:
(a) 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 whose territory the financial institution is located; and
(b) 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 sub-paragraph (a), is not an investment;
For greater certainty, 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, is an investment if such loan or debt instrument meets the criteria for investments set out in Article 12.1 (Definitions) of Chapter 12 (Investment).
“investor of a Party” means a national or enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party, provided, however, that a natural person who possesses dual nationality shall be deemed to possess exclusively the nationality of the State of his or her dominant and effective nationality;
“new financial service” means a service of a financial nature, including services related to existing and new financial products or the manner in which a financial 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;
“person of a Party” means either a natural person (11) or an enterprise of a Party and, for greater certainty, does not include a branch of an enterprise of a non-party;
“public entity” means:
(a) 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
(b) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
“self-regulatory organisation” means any non-governmental body, including any securities or futures exchange or market, clearing agency, other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers or financial institutions by statute or delegation from the government or relevant authorities.
Article 10.2. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) financial institutions of the other Party;
(b) investors of the other Party, and investments of such investors, in financial institutions in the Party’s territory; and
(c) cross-border trade in financial services.
2. Chapter 7 (Cross-Border Trade in Services) and Chapter 12 (Investment) apply to measures described in paragraph 1 only to the extent that these Chapters or the Articles therein are incorporated into this Chapter. Accordingly:
(a) Article 7.9 (Transfers and Payments) of Chapter 7 (Cross-Border Trade in Services) is incorporated, mutatis mutandis, into and made a part of this Chapter to the extent that cross-border trade in financial services is subject to the obligations pursuant to Article 10.5 (Cross-Border Trade in Financial Services);
(b) Article 7.10 (Denial of Benefits) of Chapter 7 (Cross-Border Trade in Services), Article 12.11 (Expropriation), including Annex 12-A (Expropriation), Article 12.12 (Transfers) and Article 12.22 (Denial of Benefits) of Chapter 12 (Investment) are hereby incorporated, mutatis mutandis, into and made a part of this Chapter; and
(c) Section 12-B (Investor-State Dispute Settlement) of Chapter 12 (Investment) is hereby incorporated, mutatis mutandis, into and made a part of this Chapter solely for claims that a Party has breached Article 12.11 (Expropriation), including Annex 12-A (Expropriation), Article 12.12 (Transfers) and Article 12.22 (Denial of Benefits) of Chapter 12 (Investment) as incorporated into this Chapter.
3. This Chapter does not apply to measures adopted or maintained by a Party relating to: