(a) require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 29.3. Temporary Safeguard Measures
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers for current account transactions in the event of serious balance of payments and external financial difficulties or threats thereof.
2. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers relating to the movements of capital:
(a) in the event of serious balance of payments and external financial difficulties or threats thereof; or
(b) if, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management.
3. Any measure adopted or maintained under paragraph 1 or 2 shall:
(a) not be inconsistent with Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 10.3 (National Treatment), Article 10.4 (Most-Favoured-Nation Treatment), Article 11.3 (National Treatment) and Article 11.4 (MostFavoured-Nation Treatment); (4)
(b) be consistent with the Articles of Agreement of the International Monetary Fund;
(c) avoid unnecessary damage to the commercial, economic and financial interests of any other Party;
(d) not exceed those necessary to deal with the circumstances described in paragraph 1 or 2;
(e) be temporary and be phased out progressively as the situations specified in paragraph 1 or 2 improve, and shall not exceed 18 months in duration; however, in exceptional circumstances, a Party may extend such measure for additional periods of one year, by notifying the other Parties in writing within 30 days of the extension, unless after consultations more than one-half of the Parties advise, in writing, within 30 days of receiving the notification that they do not agree that the extended measure is designed and applied to satisfy subparagraphs (c), (d) and (h), in which case the Party imposing the measure shall remove the measure, or otherwise modify the measure to bring it into conformity with subparagraphs (c), (d) and (h), taking into account the views of the other Parties, within 90 days of receiving notification that more than one half of the Parties do not agree;
(f) not be inconsistent with Article 9.8 (Expropriation and Compensation); (5)
(g) in the case of restrictions on capital outflows, not interfere with investors' ability to earn a market rate of return in the territory of the restricting Party on any restricted assets; (6) and
(h) not be used to avoid necessary macroeconomic adjustment.
4. Measures referred to in paragraphs 1 and 2 shall not apply to payments or transfers relating to foreign direct investment. (7)
5. A Party shall endeavour to provide that any measures adopted or maintained under paragraph 1 or 2 be price-based, and if such measures are not price-based, the Party shall explain the rationale for using quantitative restrictions when it notifies the other Parties of the measure.
6. In the case of trade in goods, Article XII of GATT 1994 and the Understanding on the Balance of Payments Provisions of the GATT 1994 are incorporated into and made part of this Agreement, mutatis mutandis. Any measures adopted or maintained under this paragraph shall not impair the relative benefits accorded to the other Parties under this Agreement as compared to the treatment of a non-Party.
7. A Party adopting or maintaining measures under paragraph 1, 2 or 6 shall:
(a) notify, in writing, the other Parties of the measures, including any changes therein, along with the rationale for their imposition, within 30 days of their adoption;
(b) present, as soon as possible, cither a time schedule or the conditions necessary for their removal;
(c) promptly publish the measures; and
(d) promptly commence consultations with the other Parties in order to review the measures adopted or maintained by it.
(i) In the case of capital movements, promptly respond to any other Party that requests consultations in relation to the measures adopted by it, provided that such consultations are not otherwise taking place outside of this Agreement.
(ii) In the case of current account restrictions, if consultations in relation to the measures adopted by it are not taking place under the framework of the WTO Agreement, a Party, if requested, shall promptly commence consultations with any interested Party.
Article 29.4. Taxation Measures
1. For the purposes of this Article:
designated authorities means:
(a) for Australia, the Secretary to the Treasury or an authorised representative of the Secretary;
(b) for Brunei Darussalam, the Minister of Finance or the Minister's authorised representative;
(c) for Canada, the Assistant Deputy Minister for Tax Policy, Department of Finance;
(d) for Chile, the Undersecretary of the Ministry of Finance (Subsecretario de Hacienda),
(e) for Japan, the Minister for Foreign Affairs and the Minister of Finance; (8)
(f) for Malaysia, the Minister of Finance or the Minister's authorised. representative;
(g) for Mexico, the Minister of Finance and Public Credit (Secretario de Hacienda y Crédito Piblico);
(h) for New Zealand, the Commissioner of Inland Revenue or an authorised representative of the Commissioner,
(i) for Peru, the General Director of International Economy, Competition and Productivity Affairs (Director General de Asuntos de Economia Internacional, Competencia y Productividad del Ministerio de Economia y Finanzas);
(j) for Singapore, the Chief Tax Policy Officer, Ministry of Finance;
(k) for the United States, the Assistant Secretary of the Treasury (Tax Policy); and
(l) for Viet Nam, the Minister of Finance, or any successor of these designated authorities as notified in writing to the other Parties;
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
taxes and taxation measures include excise duties, but do not include:
(a) a "customs duty" as defined in Article 1.3 (General Definitions); or
(b) the measures listed in subparagraphs (b) and (c) of that definition.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any inconsistency between this Agreement and any such tax convention, that convention shall prevail to the extent of the inconsistency.
4. In the case of a tax convention between two or more Parties, if an issue arises as to whether any inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the designated authorities of the Parties in question. The designated authorities of those Parties shall have six months from the date of referral of the issue to make a determination as to the existence and extent of any inconsistency. If those designated authorities agree, the period may be extended up to 12 months from the date of referral of the issue. No procedures concerning the measure giving rise to the issue may be initiated under Chapter 28 (Dispute Settlement) or Article 9.19 (Submission of a Claim to Arbitration) until the expiry of the six-month period, or any other period as may have been agreed by the designated authorities. A panel or tribunal established to consider a dispute related to a taxation measure shall accept as binding a determination of the designated authorities of the Parties made under this paragraph.
5. Notwithstanding paragraph 3:
(a) Article 2.3 (National Treatment) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article II of GATT 1994; and
(b) Article 2.15 (Export Duties, Taxes or other Charges) shall apply to taxation measures.
6. Subject to paragraph 3:
(a) Article 10.3 (National Treatment) and Article 11.6.1 (Cross-Border Trade) shall apply to taxation measures on income, on capital gains, on the taxable capital of corporations, or on the value of an investment or property (9) (but not on the transfer of that investment or property), that relate to the purchase or consumption of particular services, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage that relates to the purchase or consumption of particular services on requirements to provide the service in its territory;
(b) Article 9.4 (National Treatment), Article 9.5 (Most-FavouredNation Treatment), Article 10.3 (National Treatment), Article 10.4 (Most-Favoured-Nation Treatment), Article 11.3 (National Treatment), Article 11.4 (Most-Favoured-Nation Treatment), Article 11.6.1 (Cross-Border Trade) and Article 14.4 (NonDiscriminatory Treatment of Digital Products) shall apply to all taxation measures, other than those on income, on capital gains, on the taxable capital of corporations, on the value of an investment or property (9) (but not on the transfer of that investment or property),or taxes on estates, inheritances, gifts and generation-skipping transfers; and
(c) Article 14.4 (Non-Discriminatory Treatment of Digital Products) shall apply to taxation measures on income, on capital gains, on the taxable income of corporations, or on the value of an investment or property (9) (but not on the transfer of that investment or property), that relate to the purchase or consumption of particular digital products, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular digital products on requirements to provide the digital product in its territory,
but nothing in the Articles referred to in subparagraphs (a), (b) and (c) shall apply to:
(d) any most-favoured-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(e) a non-conforming provision of any existing taxation measure;
(f) the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(g) an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
(h) the adoption or enforcement of any new taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes, including any taxation measure that differentiates between persons based on their place of residence for tax purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties; (10)
(i) a provision that conditions the receipt or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, pension plan, superannuation fund or other arrangement to provide pension, superannuation or similar benefits, on a requirement that the Party maintain continuous jurisdiction, regulation or supervision over that trust, plan, fund or other arrangement; or
(j) any excise duty on insurance premiums to the extent that such tax would, if levied by the other Parties, be covered by subparagraph (e), (f) or (g).
7. Subject to paragraph 3, and without prejudice to the rights and obligations of the Parties under paragraph 5, Article 9.10.2 (Performance Requirements), Article 9.10.3 and Article 9.10.5 shall apply to taxation measures.
8. Article 9.8 (Expropriation and Compensation) shall apply to taxation measures. However, no investor may invoke Article 9.8 (Expropriation and Compensation) as the basis for a claim if it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 9.8 (Expropriation and Compensation) with respect to a taxation measure must first refer to the designated authorities of the Party of the investor and the respondent Party, at the time that it gives its notice of intent under Article 9.19 (Submission of a Claim to Arbitration), the issue of whether that taxation measure is not an expropriation. If the designated authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of the referral, the investor may submit its claim to arbitration under Article 9.19 (Submission of a Claim to Arbitration).
9. Nothing in this Agreement shall prevent Singapore from adopting taxation measures no more trade restrictive than necessary to address Singapore's public policy objectives arising out of its specific constraints of space.
Article 29.5. Tobacco Control Measures (11)
A Party may elect to deny the benefits of Section B of Chapter 9 (Investment) with respect to claims challenging a tobacco control measure (12) of the Party. Such a claim shall not be submitted to arbitration under Section B of Chapter 9 (Investment) if a Party has made such an election. If a Party has not elected to deny benefits with respect to such claims by the time of the submission of such a claim to arbitration under Section B of Chapter 9 (Investment), a Party may elect to deny benefits during the proceedings. For greater certainty, if a Party elects to deny benefits with respect to such claims, any such claim shall be dismissed.
Article 29.6. Treaty of Waitangi
1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.
2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 28 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party's rights under this Agreement.
Section B. General Provisions
Article 29.7. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information, the disclosure of which would be contrary to its law or 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 29.8. Traditional Knowledge and Traditional Cultural Expressions
Subject to each Party’s international obligations, each Party may establish appropriate measures to respect, preserve and promote traditional knowledge and traditional cultural expressions.
Chapter 30. FINAL PROVISIONS
Article 30.1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 30.2. Amendments
The Parties may agree, in writing, to amend this Agreement. When so agreed by all Parties and approved in accordance with the applicable legal procedures of each Party, an amendment shall enter into force 60 days after the date on which all Parties have notified the Depositary in writing of the approval of the amendment in accordance with their respective applicable legal procedures, or on such other date as the Parties may agree.
Article 30.3. Amendment of the WTO Agreement
In the event of an amendment of the WTO Agreement that amends a provision that the Parties have incorporated into this Agreement, the Parties shall, unless otherwise provided for in this Agreement, consult on whether to amend this Agreement.
Article 30.7. Depositary
1. The original English, Spanish and French texts of this Agreement shall be deposited with New Zealand, which is hereby designated as the Depositary of this Agreement.
2. The Depositary shall promptly provide certified copies of the original texts of this Agreement and of any amendments to this Agreement to cach signatory State, acceding State and acceding separate customs territory.
3. The Depositary shall promptly inform cach signatory and acceding State or acceding separate customs territory, and provide them with the date and a copy, of:
(a) a notification under Article 30.2 (Amendments), Article 30.4.6 (Accession) or Article 30.5 (Entry into Force);
(b) a request to accede to this Agreement under Article 30.4.2 (Accession);
(c) the deposit of an instrument of accession under Article 30.4.5 (Accession); and
(d) a notice of withdrawal provided under Article 30.6 (Withdrawal).
Conclusion
Attachments
ANNEX I
EXPLANATORY NOTES
1. The Schedule of a Party to this Annex sets out, pursuant to Article 9.12 (NonConforming Measures) and Article 10.7 (Non-Conforming Measures), a Party’s existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 9.4 (National Treatment) or Article 10.3 (National Treatment);
(b) Article 9.5 (Most-Favoured-Nation Treatment) or Article 10.4 (MostFavoured-Nation Treatment);
(c) Article 9.10 (Performance Requirements);
(d) Article 9.11 (Senior Management and Boards of Directors);
(e) Article 10.5 (Market Access); or
(f) Article 10.6 (Local Presence).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector, where referenced, refers to the specific subsector for which the entry is made;
(c) Industry Classification, where referenced, refers to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);
(d) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 9.12.1(a) (Non-Conforming Measures) and Article 10.7.1(a) (Non-Conforming Measures), do not apply to the listed measure(s) as indicated in the introductory note for each Party’s Schedule;
(e) Level of Government indicates the level of government maintaining the listed measures;
(f) Measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the Measures element:
(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(g) Description, as indicated in the introductory note for each Party’s Schedule, either sets out the non-conforming measure or provides a general non-binding description of the measure for which the entry is made.
3. Article 10.6 (Local Presence) and Article 10.3 (National Treatment) are separate disciplines and a measure that is only inconsistent with Article 10.6 (Local Presence) need not be reserved against Article 10.3 (National Treatment).
SCHEDULE OF AUSTRALIA
INTRODUCTORY NOTES
1. Description sets out the non-conforming measure for which the entry is made.
2. In accordance with Article 9.12.1 (Non-Conforming Measures) and Article 10.7.1 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures identified in the Description element of that entry.
Sector: All
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Local Presence (Article 10.6)
Level of Government: Regional
Measure: All existing non-conforming measures at the regional level of government.
Description: Investment and Cross-Border Trade in Services All existing non-conforming measures at the regional level of government.
Sector: All
Obligations Concerned: National Treatment (Article 9.4) Senior Management and Boards of Directors (Article 9.11)
Level of Government: Central
Measures: Australia’s Foreign Investment Policy, which consists of the Foreign Acquisitions and Takeovers Act 1975 (FATA) (Cth); Foreign Acquisitions and Takeovers Regulations 1989 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements.
Description: Investment
1. The following investments (1) require notification and approval from the Australian Government: (a) proposed investments by foreign persons in existing (2) Australian businesses, or prescribed corporations, (3) the value of whose assets exceeds $A252 million* in the following sectors: (i) the telecommunications sector; (ii) the transport sector, including airports, port facilities, rail infrastructure, international and domestic aviation and shipping services provided either within, or to and from, Australia; (iii) the supply of training or human resources, or the manufacture or supply of military goods, equipment or technology, to the Australian or other defence forces; (iv) the manufacture or supply of goods, equipment or technologies able to be used for a military purpose; (v) the development, manufacture or supply of, or provision of services relating to, encryption and security technologies and communication systems; and (vi) the extraction of (or rights to extract) uranium or plutonium, or the operation of nuclear facilities; (b) proposed investments by foreign persons in existing Australian businesses, or prescribed corporations, in all other sectors, excluding financial sector companies (4), the value of whose total assets exceeds $A1,094 million*; (c) proposed direct investments by foreign government investors, irrespective of size; (d) proposed investments by foreign persons (5) of five per cent or more in the media sector, regardless of the value of the investment; (e) proposed acquisitions by foreign persons of developed non-residential commercial real estate where the property is valued at more than $A1,094 million*. Notified investments may be refused, subject to interim orders, and/or approved subject to compliance with certain conditions. Investments referred to above for which no notification is received may be subject to orders under Sections 18 through 21 and 21A of the FATA.
Separate or additional requirements may apply to measures subject to other Annex I reservations and to sectors, sub-sectors or activities subject to Annex II.
2. The acquisition of a stake in an existing financial sector company by a foreign investor, or entry into an arrangement by a foreign investor, that would lead to an unacceptable shareholding situation or to practical control (6) of an existing financial sector company, may be refused, or be subject to certain conditions. (7)
Sector: Professional Services
Obligations Concerned: Local Presence (Article 10.6)
Level of Government: Central