3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-Parties in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
4. The Parties agree to encourage, where possible, the relevant bodies in their respective territories responsible for issuance and recognition of professional and vocational qualifications to strengthen cooperation and to explore possibilities for mutual recognition of respective professional and vocational qualifications.
Article 8.11. Payments and Transfers
1. Except under the circumstances envisaged in Article 8.14 (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 International Monetary Fund under the Alticles of Agreement of the Fund including the use of exchange actions which are in conformity with the Article of Agreement, provided that a Party shall not impose restrictions on any capital transaction inconsistently with its speci fie commitments regarding such transactions. except under Article 8.14 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the International Monetary Fund.
Article 8.12. Monopolies and Exclusive Service Suppliers
The rights and obligations of the Parties in respect of monopolies and exclusive service suppliers shall be governed by paragraphs 1, 2, and 5, of Article VIII of the GATS, which are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 8.13. Business Practices
The rights and obi igations of the Parties in respect of business practices shall be governed by Article IX of the GATS, which is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 8.14. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. Where any of the Parties to this Agreement is in serious balance of payments difficulties, or under threat thereof, it may adopt or maintain restrictive measures with regard to trade in services, including on payments and transfers.
3. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GA TS, which are hereby incorporated into and made part of this Agreement, mutatis mutandis. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 8.15. Denial of Benefits
1. A Party may deny the benefits of this Agreement to a service supplier that is a juridical person, if persons of a non-Party own or control that juridical person and the denying Party:
(a) does not maintain diplomatic relations with the non-Party and that non-Party is not a Member of the WTO; or
(b) adopt or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person.
2. In the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(a) by a vessel registered under the laws of a non-Party; and
(b) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party.
Article 8.16. Review
With the objective of further liberalising trade in services between them, the Parties agree to jointly review, their Schedules of Specific Commitments, and their Lists of MFN Exemptions, taking into account any services liberalisation developments as a result of on-going work under the auspices of the WTO. The first such review shall take place no later than three years from the entry into force of this Agreement.
Article 8.17. Annexes
1. The following Annexes form part of this Chapter:
(a) Annex 8A and 8B (Schedules of Specific Commitments)
(b) Annex 8C and 8D (MFN Exemptions)
(c) Annex 8E (Financial Services)
(d) Annex 8F (Telecommunication Services)
(e) Annex 80 (Transport Services)
ANNEX 8E. FINANCIAL SERVICES
Article 1. Scope and Definitions
1. This Annex applies to measures by Parties affecting trade in financial services.
2. For the purposes of this Annex:
Financial institution means any financial intermediary or other enterprise that is authorised to do business and is regulated or supervised as a financial institution, under the law of the Party in whose territory it is located;
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). Financial services include the following activities:
(a) insurance and insurance-related services:
(i) direct insurance (including co-insurance):
(A) life; and
(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 transaction;
(iii) financial leasing;
(iv) all payment and money transmission services, including credit, charge and debit cards, traveller's cheques and banker's 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 checks, bills, 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, 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) above, 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 natural or juridical person of a Party that seeks to supply or supplies financial services. The term "financial service supplier" does not include a public entity;
New financial service means a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory ofa Party but which is supplied in the territory of the other 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 or other organisation or association that exercises its own or delegated regulatory or supervisory authority over financial service suppliers;
Services supplied in the exercise of governmental authority includes the following:
(a) activities conducted by a central bank or a monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities carried out by a public authority to regulate operations related to capital market institutions, as well as the operations of trading in securities and commodities;
(c) activities forming part of a statutory system of social security or public retirement plans; and
(d) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government;
For the purposes of the definition of "services", contained in this Annex, if a Party allows any of the activities, referred to in subparagraphs (c) or (d) above, to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, "services" shall include such activities.
Article 2. Clearance and Payment Systems
1. Under terms and conditions that accord national treatment, each Party may grant to financial service suppliers of the other Party licensed/registered/authorised in its territory access to use of paylllent and clearing system operated by public entities and to liquidity management focilities, available in the normal course of ordinary business in accordance with the national legislation and the applicable system rules. This paragraph is not intended to confer access to a Party's lender of last resort facilities.
2. Where membership or participation in, or access to any self-regulatory body. securiti.e or futures excbange or market, clearing agency or any other organisation or association, is required by a Pa1ty in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial s.ervice suppliers of the Party; or when the Party provides directly or indirectly such entities. privileges or advantages in supplying financial services, the Party shall strive to ensure that such entities accord national treatment to financial service suppliers of the other Party resident m its territory.
Article 3. Prudential Carve-Out
1. Notwithstanding any other provisions of this Annex, a Party may adopt or maintain measures for supervision (including prudential) and oversight reasons including for:
(a) the protection of investors, depositors. policy-holders. policy claimants, any other consumers/users/customers or persons to whom a fiduciary duty is owed by a financial service supplier, or any similar financial market participants: and
(b) ensuring the integrity and stability of a Party's financial system.
2. Measures referred to in paragraph 1 shall not be more burdensome than necessary to achieve their aim or constitute a disguised restriction on trade in services, and shall not discriminate against financial services or financial service suppliers of the other Party in comparison to its own like financial services or like financial service suppliers.
3. Nothing in this Agreement shall be construed to require a Party to disclose information relating to personal data the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
4. Without prejudice to other means of supervision. including prudential regulation and oversight of the cross-border supply of financial services a Party may require the registration, Iicensing authorisation or other similar condition of cross-border suppIiers of financial services of the other Party and of financial instruments.
Article 4. Recognition
1. A Party may recognise prudential measures of a non-Party in determining how the Party's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between that Party and the non-Party, or may be accorded autonomously.
2. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1 with a non-Party whether at the time of entry into force of this Agreement or thereafter shall afford adequate opportunity for the other Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the Parties to the agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances exist.
Article 5. New Financial Services
Recognising the rapid development of the financial services market, for greater certainty the Parties reaffirm their right to regulate and to introduce new regulations on the supply of new financial services within their territories.
Article 6. Exchange of Information
Each Party, in accordance with its applicable laws and regulations, may share information with the other Party on request, on the basis that such information will be used solely for supervisory purposes and provided that the confidentiality of information is maintained.
Article 7. Knowledge Sharing
The Parties shall use their best endeavours to exchange knowledge, know-how and capabilities in areas of interest to each Party, including the latest financial development technologies, Islamic finance, research and the exchange of employees for the purpose of capacity building in accordance with their domestic laws and regulations.
Article 8. Data Processing
1. Each Party, in accordance with its applicable laws and regulations, may permit a financial service supplier of the other Party to transfer information in electronic or other form, into and out of its territory. for data processing where such processing is required in the ordinary course of business of such financial service supplier.
2. Nothing in this Annex restricts the right of a Party to protect personal data, personal privacy and the confidentiality of individual records and accounts, and other information protected under the law.
Article 9. Specific Exceptions
1. Nothing in this Annex shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the Party's domestic regulation, by financial service suppliers in competition with public entities or private institutions.
2. Nothing in this Agreement applies to activities or measures conducted or adopted or maintained by a central bank or monetary, exchange rate or credit authority or by any other public entity in pursuit of monetary and related credit or exchange rate policies.
3. Nothing in this Annex shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account or with the guarantee of using the financial resources of the Party, or it public entities, except when those activities may be carried out, as provided by the Party s domestic regulation by financial service suppliers in competition with public entities or private institutions.
4. Nothing in this Annex shall be construed to prevent a Party from adopting measures that limit transfers by a financial institution or cross-border financial service supplier to or for the benefit of an affiliate of or person related to such institution or supplier. through the equitable, non-discriminatory, and good faith application of measures relating to maintenance of the safety, soundness, integrity, or financial responsibility of financial institutions or cross-border financial service suppliers. This paragraph does not prejudice any other provision of this Agreement that permits a Party to restrict transfers.
Article 10. Expeditious Application Procedures
1. Where a licence/registration/authorisation is required for the supply of banking and insurance services, the competent authorities of a Party shall reach a decision on an application in a timely manner, if that application meets all the conditions and requirements under that Party's domestic laws and regulations:
2. If the competent authorities of a Party require additional information from the applicant or the competent authority of the other Party in order to process its application, they shall notify the applicant and/or the competent authority of the other Party without undue delay, in line with its laws and regulation.
Article 11. Dispute Settlement
Panels established pursuant to Chapter 15 (Dispute Settlement) for disputes related to financial services suppliers and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
Chapter 9. DIGITAL TRADE
Article 9.1. Definitions
For purposes of this Chapter:
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;
digital or electronic signature means data in digital or electronic form that is in, affixed to, or logically or cryptographically associated with, a digital or electronic document, and that may be used to identify or verify the signatory in relation to the digital or electronic document and indicate the signatory's approval of the information contained in the digital or electronic document;
digital product means a computer programme, text, video, image, sound recording or other product that is digitally encoded, produced for commercial sale or distrjbution, and that can be transmitted electronically; (1)
electronic transmission or transmitted electronically means a transmission made using any electromagnetic means, including by photonic means; open data means non-proprietary information, including data, made freely available to the public by the central level of government; measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
personal data means any information, including data, about an identified or identifiable natural person; trade administration documents means forms issued or controlled by a Party that must be completed by or for an importer or exporter in connection with the importation or exportation of goods; and
unsolicited commercial electronic message means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient, through an Internet access service supplier or, to the extent provided for under the laws and regulations of each Party, other telecommunications service.
Article 9.2. Objectives
1. The Parties recognise the economic growth and opportunity that digital trade provides, the importance of avoiding barriers to its use and development, the importance of frameworks that promote consumer confidence in digital trade, and the applicability of the WTO Agreement to measures affecting digital trade.
2. The Parties seek to foster an environment conducive to the further advancement of digital trade, including electronic commerce and the digital transformation of the global economy, by strengthening their bilateral relations on these matters.
Article 9.3. General Provisions
1. This Chapter shall apply to measures adopted or maintained by a Party that affect trade by electronic means.
2. This Chapter shall not apply to:
(a) government procurement;
(b) information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.
3. For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the relevant provisions of Chapter 8 (Trade in Services) and its Annexes and Chapter 10 (Investment), including any exceptions or limitations set out in this Agreement that are applicable to such provisions.
Article 9.4. Customs Duties
1. No Party shall impose customs duties on digital or electronic transmissions, including content transmitted electronically, between a person of one Party and a person of another Party.
2. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees or other charges on content transmitted digitally or electronically, provided that such taxes, fees or charges are imposed in a manner consistent with this Agreement.
Article 9.5. Non-Discriminatory Treatment of Digital Products
1. A Party shall not accord less favourable treatment to some digital products (2) than it accords to other like digital products:
(a) on the basis that
(i) the digital products receiving less favourable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party; or
(b) so as otherwise to afford protection to the other I ike digital products that are created, produced, published, stored, transmitted, contracted for, commissioned or first made available on commercial terms, in its territory.
2. A Party shall not accord less favourable treatment to digital products:
(a) created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party than it accords to like digital products created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, or distributor of such digital products is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor of such digital products is a person of a non-Party.
3. Paragraphs 1 and 2 of this Article are subject to relevant exceptions, limitations or reservations set out in this Agreement or its Annexes, if any.
4. This Article does not apply to broadcasting.
Article 9.6. Domestic Electronic Transactions Framework
1. Each Party endeavours to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce ( 1996) or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005.
2. Each Party endeavours to:
(a) avoid any unnecessary regulatory burden on electronic transactions; and
(b) facilitate input by interested persons in the development of its legal framework for electronic transactions, including in relation to trade documentation.
Article 9.7. Authentication
1. Except in circumstances otherwise provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in digital or electronic form.
2. Neither Party shall adopt or maintain measures regarding authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their 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 meets certain performance standards or is certified by an authority accredited in accordance with its law.