1. Each Party shall ensure that any regulatory body (9) or any other body exercising a regulatory function that the Party establishes or maintains acts impartially in like circumstances with respect to all enterprises that it regulates, including the covered entities.
2. Each Party shall ensure the enforcement of laws and regulations in a consistent and non-discriminatory manner (10), including on the covered entities.
3. Each Party shall ensure that any regulatory body or any other body exercising a regulatory function that the Party establishes or maintains is legally separate from and not accountable to any of the enterprises regulated by that body. (11)
Article 4. National Treatment
1. Each Party shall accord to investors of the other Party and to covered enterprises treatment no less favourable than the treatment it accords, in like situations (12), to its own investors and to their enterprises, with respect to establishment and operation in its territory.
2. For greater certainty, paragraphs 1 shall not be construed as preventing a Party from prescribing ordinary formalities, such as a requirement to provide authenticated documents or official translations, or information requirements for statistical purposes, in connection with the covered enterprise, provided that those requirements do not constitute a means to circumvent that Party's obligations pursuant to this Article.
Article 5. Most Favoured Nation Treatment
1. Each Party shall accord to investors of the other Party and to covered enterprises, treatment no less favourable than the treatment it accords, in like situations, to investors and their enterprises of any non-Party with respect to establishment and operation in its territory.
2. Substantive provisions in other international agreements concluded by a Party with a third country do not in themselves constitute treatment under this Article.
3. For greater certainty, the treatment referred to in paragraph 1 does not include investor- to-state and other dispute settlement procedures provided for in other international agreements.
Article 6. Senior Management and Boards of Directors
Neither Party may require that an enterprise of that Party that is a covered enterprise appoint to senior management or the board of directors positions natural persons of any particular nationality.
Article 6bis. Entry and Temporary Stay of Natural Persons for Business Purposes
1. This Article applies to measures of the Parties concerning the entry and temporary stay in their territories of business visitors for establishment purposes and intra-corporate- transferees in accordance with paragraph 4.
2. This Article shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits (13) accruing to any Party under the terms of a specific commitment in this Article and its Annexes.
4. For the purpose of this Article:
a) "Business visitors for establishment purposes" mean natural persons working in a senior position who are responsible for setting up an enterprise. They do not offer or provide services or engage in any other economic activity than required for establishment purposes. They do not receive remuneration from a source located within the host Party.
b) "Intra-corporate transferees" mean natural persons who have been employed by a juridical person, or its branch or have been partners in it for at least one year and who are temporarily transferred to an enterprise that may be a subsidiary, branch or head company of the juridical person in the territory of the other Party (14). The natural person concerned must belong to one of the following categories:
Managers: Persons working in a senior position within a juridical person, who primarily direct the management of the enterprise, receiving general supervision or direction principally from the board of directors or from stockholders of the business or their equivalent, including at least: directing the enterprise or a department or sub- division thereof; and supervising and controlling the work of other supervisory, professional or managerial employees; and having the personal authority to recruit and dismiss or to recommend recruitment, dismissal or other personnel-related actions.
Specialists: Persons working within a juridical person who possess specialised knowledge essential to the enterprise's production, research equipment, techniques, processes, procedures or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the enterprise, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession.
5. The permissible length of stay shall be for a period of up to ninety days in any twelve month period for business visitors for establishment purposes, and up to three years for managers and specialists.
6. Subject to the relevant reservations specified in, for the EU Annex IV [reservations for business visitors for establishment purposes and intra-corporate transferees], and for China Schedule on Business Visitors for Establishment Purposes and Intra-Corporate Transferees:
a) A Party shall allow the entry and temporary stay of intra-corporate transferees and business visitors for establishment purposes.
b) A Party shall not maintain or adopt, either on the basis of a territorial subdivision or on the basis of its entire territory, limitations in the form of numerical quotas or economic needs tests on the total number of natural persons that, in a specific sector, are allowed entry as business visitors for establishment purposes or that an investor may employ as intra-corporate transferees in a specific sector in the form of numerical quotas or economic needs tests either on the basis of a territorial subdivision or on the basis of its entire territory.
c) Each Party shall accord to Intra-corporate Transferees and Business Visitors for Establishment Purposes of the other Party national treatment with regard to their temporary stay in its Territory. For the purpose of this article, national treatment provided in Article 17 of GATS shall apply, mutatis mutandis. (15)
7. For greater certainty, temporary entry granted in accordance with this Article [Entry and temporary stay of natural persons for business purposes] does not replace the qualification requirements needed to carry out a profession or activity according to the applicable laws and regulations in force in the territory of the granting Party, provided such requirements are not inconsistent with its obligations under this Agreement.
8. To the extent that the relevant measure affects the temporary stay of natural persons for business purposes, paragraph 6 does not apply to:
a) any existing non-conforming measure of a Party at the level of: a. for the European Union:
i. the European Union, if the measure is consistent with a reservation listed in Annex I;
ii. the central government of a Member State of the European Union, if the measure is consistent with a reservation listed in Annex I;
iii. a regional government of a Member State of the European Union, if the measure is consistent with a reservation listed in Annex I; or
iv. a local government, other than that referred to in subparagraph (c), if the measure is consistent with a reservation listed in Annex I; and
b. for China:
i. the central government, if the measure is consistent with a reservation listed in Annex I;
ii. a provincial government, if the measure is consistent with a reservation listed in Annex I; or
iii. a local government, if the measure is consistent with a reservation listed in Annex I;
b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a);
c) a modification of any non-conforming measure referred to in subparagraphs (a) and (b) to the extent that it does not decrease the conformity of the measure with paragraph 6, as it existed immediately before the modification; or
d) any measure of a Party consistent with a reservation specified in Annex II.
Article 6ter. Transparency
1. Each Party shall make publicly available information on relevant measures that pertain to the entry and temporary stay of natural persons of the other Party, referred to in paragraph 1 of Article [6 bis].
2. The information referred to in paragraph 1 shall, to the extent possible, include inter alia the following information relevant to the entry and temporary stay of natural persons:
(a) entry conditions;
(b) an indicative list of documentation that may be required in order to verify the fulfilment of the conditions;
(c) indicative processing time;
(d) applicable fees;
(e) appeal procedures; and
(f) relevant laws of general application pertaining to the entry and temporary stay of natural persons.
Article 7. Non-Conforming Measures and Exceptions
1. Article 3 (Performance Requirements), Article 4 (National Treatment), Article 5 (Most- Favoured-Nation Treatment) and Article 6 (Senior Management and Boards of Directors) do not apply to:
(i) for the European Union:
a. the European Union, if the measure is consistent with a reservation listed in Annex I;
b. the central government of a Member State of the European Union, if the measure is consistent with a reservation listed in Annex I;
c. a regional government of a Member State of the European Union, if the measure is consistent with a reservation listed in Annex I; or
d. a local government, other than that referred to in subparagraph (c), if the measure is consistent with a reservation listed in Annex I; and
(ii) for China:
a. the central government, if the measure is consistent with a reservation listed in Annex I;
b. a provincial government, if the measure is consistent with a reservation listed in Annex I; or
c. a local government, if the measure is consistent with a reservation listed in Annex I;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 3 (Performance Requirements), Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment) and Article 6 (Senior Management and Boards of Directors).
2. Article 3 (Performance Requirements), Article 4 (National Treatment), Article 5 (Most- Favoured-Nation Treatment) and Article 6 (Senior Management and Boards of Directors) do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in Annex IL
3. A Party shall not adopt a measure after the date of entry into force of this Agreement and covered by its Schedule to Annex II that requires an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an enterprise existing at the time the measure becomes effective.
4. Articles 3 [National Treatment] and 4 [Most-Favoured-Nation Treatment] do not apply to any measure that constitutes an exception to, or a derogation from, Articles 3 or 4 of the TRIPS Agreement, as specifically provided in Articles 3 to 5 of that Agreement.
Section II. REGULATORY FRAMEWORK
Subsection 1. DOMESTIC REGULATION
Article 1. Scope and Definitions
1. The following disciplines apply to measures adopted or maintained by a Party relating to licencing requirements and procedures, qualification requirements and procedures (1) that affect:
a. Establishment of an enterprise;
b. Operation of a covered enterprise in the territory of one of the Parties.
2. The disciplines in this sub-section shall apply to sectors where a commitment is undertaken pursuant to Article [Market Access] and to the extent of the commitment undertaken. The disciplines shall not apply to the aspects that are not conforming with article [National treatment] set out in a Party's Schedule to Annex (I) [reservations for existing measures] [EU: and Annex XX [reservations specific to business visitors and intra-corporate transferees]] or to measures with respect to sectors, sub-sectors or activities as set out in a Party's Schedule to Annex (ID) [reservations for future measures].
3. These disciplines do not apply to applications for and extensions of visas, residence permits and work permits.
4. For the purposes of this Sub-section:
- "Licencing requirements" means substantive requirements, other than qualification requirements, with which a natural person or an enterprise is required to comply in order to obtain, amend or renew the authorisation to carry out the activities as defined in paragraph 1.
- "Licencing procedures" means administrative or procedural rules that a natural person or an enterprise, seeking authorisation to carry out the activities as defined in paragraph 1 including the amendment or renewal of a licence, must adhere to in order to demonstrate compliance with licencing requirements.
-"Qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service, and which are required to be demonstrated for the purpose of obtaining, amending or renewing an authorisation to supply a service.
-"Qualification procedures" means administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements.
-"Competent authority" means any central, regional or local government and authority or non-governmental body in the exercise of powers delegated by central or regional or local governments or authorities which takes a decision concerning the authorisation to make an investment.
Article 2. Conditions for Licencing and Qualification
1. Each Party, with a view to precluding the competent authorities from exercising their power of assessment in an arbitrary manner, shall ensure that measures relating to licencing requirements and procedures, qualification requirements and procedures are based on the following criteria:
(a) clear;
(b) objective and transparent;
(c) pre-established, made public in advance and accessible.
2. An authorisation or a licence shall, subject to availability, be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining an authorisation or licence have been met.
3. Where the number of licences available for a given activity is limited in the case of the scarcity of available natural resources or technical capacity, each Party shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.
4. Subject to Paragraph 3 of Article 2, in establishing the rules for the selection procedure, each Party may take into account legitimate public policy objectives, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.
Article 3. Licencing and Qualification Procedures
1. Licencing and qualification procedures shall be clear, as simple as feasible, made public in advance and shall not unduly complicate or delay the making of an investment.
2. Any authorisation fees (2) charged by the competent authority from an applicant in connection with the establishment and acquisition of an enterprise, including those charged for the amendment or renewal of such authorisation, should be reasonable and commensurate with the administrative cost of the authorisation procedures in question.
3. Each party shall ensure that the procedures used by, and the decisions of, the competent authority in the licencing or authorisation process are impartial with respect to all applicants. The competent authority should reach its decision in an independent manner and not accountable to any investor for which the licence or authorisation is required.
4. Where specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. Each Party shall ensure that its competent authorities ascertain the completeness of applications without undue delay, and that they initiate the processing of the application without undue delay. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions.
5. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Party shall endeavour to establish the normal timeframe for processing of an application.
6. The competent authority shall, within a reasonable period of time after receipt of an application which it considers incomplete, inform the applicant, to the extent feasible identify the additional information required to complete the application, and provide the opportunity to correct deficiencies within a reasonable period of time.
7. Authenticated copies should be accepted, to the extent that domestic law permits, in place of original documents.
8. If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. The applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.
9. Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay.
Subsection 2. TRANSPARENCY
Article 1. Disclosure of Information
Nothing in this Agreement shall require a 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 the legitimate commercial interests of particular enterprises, public or private.
Article 2. General Transparency Obligations
1. Each Party shall ensure that its laws, regulations, administrative guidelines, procedures, judicial decisions and administrative rulings of general application with respect to any matter covered by this Treaty are promptly published or otherwise made publicly available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. For the purposes of this Article, judicial decisions and administrative rulings of general application do not include decisions or rulings that apply only to a particular person without establishing a norm of conduct that is relevant beyond the facts of the specific case.
Article 3. Publication
(1) To the extent practicable in a manner consistent with its respective rules and procedures for adopting laws and regulations, each Party shall:
(a) publish laws and regulations referred to in Article 2 (1) that it proposes to adopt on an official website or in an official journal that is publicly accessible;
(b) provide an explanation of the objective of, and rationale for such laws and regulations;
(c) provide interested persons and the other Party a reasonable opportunity to comment on such proposed laws and regulations; and
(d) endeavour to take into account the comments received from interested persons with respect to such proposed laws and regulations.
(2) With respect to laws and regulations referred to in Article 2 (1) that are adopted, each Party shall:
(a) publish them on an official website or in an official journal that is publicly accessible; and
(b) ensure that there is reasonable time between publication and entry into force of the laws and regulations, except in duly justified cases based on the nature of the envisaged measure, urgency or other similar grounds.
Article 4. Contact Point and Provision of Information
1. In order to facilitate the effective implementation of this Agreement, upon its entry into force each Party shall designate a contact point. The Parties shall notify their respective contact points within 3 months after the entry into force of this Agreement.
2. Each Party shall establish or maintain appropriate mechanisms for responding to enquiries from any investor of the other Party regarding any measure referred to in Article 2.1. Enquiries may be addressed through the contact points referred to in the preceding sub-paragraph. Any response under this sub-paragraph will be provided only for information purposes, unless otherwise foreseen in the Party's laws.
3. On request of the other Party, a Party shall, within a reasonable period of time, provide information and respond to questions pertaining to any measure referred to in Article 2 (1) that the requesting Party considers might affect the operation of this Agreement or otherwise substantially affect its interests under this Agreement.
4. Any request or information under this paragraph shall be provided to the other Party through the relevant contact points.
5. Any information provided under this article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article 5. Administrative Proceedings
With a view to administering in a consistent, impartial, and reasonable manner all measures referred to in Article 2 (1), each Party shall ensure that in its administrative proceedings applying such measures to particular covered enterprises or investors of the other Party in specific cases:
1. to the extent permitted by the nature of the applicable proceeding, covered enterprises or investors of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which it is initiated, and a general description of any issues in controversy;
2. such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, including by, to the extent permitted by the nature of the applicable proceeding, being informed of the preliminary conclusions drawn against them in case of an alleged infringement, being permitted to set out all factual and legal arguments relevant to their defence, and by having the right to a legal representative of their choice during such proceedings; and
3. its procedures are in accordance with domestic law, including with respect to the protection of confidential business information or other information treated as confidential under the Party's laws that is obtained during administrative proceedings.
4. in the application of its rules on competition, including the control of mergers and acquisitions, each Party shall ensure that the prohibitions, penalties and or any other remedies provided for in these rules shall be imposed only following the adoption of a formal decision by the competent competition authority, a non-confidential version of which shall be published. Prior to the adoption of such a decision, the competition authority shall notify, in writing if so provided by domestic law, the addressee of its competition concerns or objections, including the facts and legal basis on which the proposed decision will be based. The address of the decision shall, prior to its adoption, be informed, to the extent provided for in the domestic law, of the evidence on which the decision will be based. Prior to the adoption of the final written decision, the addressee of the decision shall have the right to submit written comments to the competition authority in relation to the competition authority's competition concerns or objections. During such proceedings, the addressee of the decision shall have the right to a legal representative of its choice. The addressees shall have the right to appeal the final decisions of the competition authorities to a competent court of law.
A Party shall not require disclosure of confidential business information in authorisation and administrative proceedings, unless such information is necessary to show conformity with the administrative or regulatory requirements governing those proceedings. A Party shall protect the confidentiality of such information.
Article 6. Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement including review of alleged substantive or procedural errors having occurred through the imposition of a sanction or remedy for violation of the Party's competition laws. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(i) a reasonable opportunity to support or defend their respective positions, in line with the principles set out in article 5(2); and
(ii) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by the offices or authorities with respect to the administrative action at issue.
4. This article shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
Article 7. Standards-Setting
1. Each Party shall allow enterprises that are covered enterprises of the other Party, to participate in the development of standards by its central government bodies, including related standardisation working groups and technical committees at all levels, on terms no less favourable than those it accords to its own enterprises, including its covered entities. The list of such standardisation working groups and technical committees, as well as their members, shall be made publicly available. This shall include publication of the setting up of standardisation working groups and technical committees.
Each Party shall make available to covered enterprises of the other Party, the requirements for application procedures to the standardisation bodies in a timely and transparent manner, including the conditions for access and requirements for each membership type. On the request, in writing, of covered enterprises of the other Party, relevant standardisation bodies shall inform such an applicant of the status of its application, without undue delay. If the competent authority requires additional information from such an applicant, it shall notify this applicant without undue delay.
2. Each Party shall recommend that local and non-governmental standardizing bodies in its territory allow enterprises that are covered enterprises of the other Party to participate in the development by those bodies of standards and related conformity assessment procedures, on terms no less favourable than those they accord to its own enterprises, including its covered entities.
Paragraphs 1 and 2 of this Article do not apply to:
i) sanitary and phytosanitary measures as defined in Annex A of the World Trade Organisation (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures; or
(ii) purchasing specifications prepared by a governmental body for its production or consumption requirements.
3. Paragraphs 1 and 2 of this Article do not apply to:
i) sanitary and phytosanitary measures as defined in Annex A of the World Trade Organisation (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures; or