Article 3.7. Additional Commitments
Additional commitments shall be governed by Article XVII of the GATS, which is hereby incorporated into and made part of this Agreement.
Article 3.8. Domestic Regulation
1. The rights and obligations of the Parties in respect of domestic regulation shall be governed by paragraphs 1 to 3 of Article VI of the GATS, which are hereby incorporated into and made part of this Agreement.
2. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures do not constitute unnecessary barriers to trade in services, the Joint Committee shall develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements and procedures are, inter alia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
3. (a) In sectors in which a Party has undertaken specific commitments, pending the entry into force of disciplines developed in these sectors pursuant to paragraph 2, the Parties shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments in a manner which does not comply with the criteria outlined in subparagraphs 2(a), (b) or (c).
(b) In determining whether a Party is in conformity with the obligation under subparagraph (a), account shall be taken of international standards of relevant international organisations (5) applied by that Party.
4. Each Party shall provide for adequate procedures to verify the competence of professionals of any other Party.
Article 3.9. Recognition
1. For the purpose of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to any request by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted in the territory of a non-party, that Party shall afford another Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted in the territory of that other Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VII of the GATS.
4. Annex IX sets out further rights and obligations regarding recognition of qualifications of service suppliers of the Parties.
Article 3.10. Movement of Natural Persons
1. The rights and obligations of the Parties in respect of the movement of natural persons of a Party supplying services shall be governed by the GATS Annex on Movement of Natural Persons Supplying Services, which is hereby incorporated into and made part of this Agreement.
2. Annex X sets out further rights and obligations regarding movement of natural persons of a Party supplying services.
Article 3.11. Transparency
The rights and obligations of the Parties in respect of transparency shall be governed by paragraphs 1 and 2 of Article III and by Article III bis of the GATS, which are hereby incorporated into and made part of this Agreement.
Article 3.12. 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.
Article 3.13. Business Practices
The rights and obligations 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.
Article 3.14. Payments and Transfers
1. Except under the circumstances envisaged in Article 9.2, a Party shall not apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the International Monetary Fund (hereinafter referred to as "IMF"), including the use of exchange actions which are in conformity with the Articles of the Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 9.2 or at the request of the IMF.
Article 3.15. Exceptions
The rights and obligations of the Parties in respect of general exceptions and security exceptions shall be governed by Article XIV and paragraph 1 of Article XIV bis of the GATS, which are hereby incorporated into and made part of this Agreement.
Article 3.16. Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 3.5, 3.6 and 3.7. With respect to sectors where such specific commitments are undertaken, each Schedule shall specify the elements set forth in subparagraphs (a) to (e) of paragraph 1 of Article XX of the GATS.
2. Measures inconsistent with both Articles 3.5 and 3.6 shall be dealt with as provided for in paragraph 2 of Article XX of the GATS.
3. The Parties' Schedules of specific commitments are set out in Annex VIL.
Article 3.17. Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Party's Schedule of specific commitments. The consultations shall be held within three months after the requesting Party made its request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in the Schedule of specific commitments prior to such consultations is maintained. Modifications of Schedules are subject to the procedures set out in Articles 7.1 and 9.6
Article 3.18. Review (6)
1. With the objective of further liberalising trade in services between them, in particular eliminating substantially all remaining discrimination within a period of ten years, the Parties shall review at least every two years, or more frequently if so agreed, their Schedules of specific commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and on-going work under the auspices of the WTO. The first such review shall take place no later than two years after the entry into force of this Agreement.
2. If, after the entry into force of this Agreement, a Party enters into any agreement on trade in services with a non-party, it shall negotiate, upon request by another Party, the incorporation into this Agreement of a treatment no less favourable than that provided under the agreement with the non-party. The Parties shall take into consideration the circumstances under which a Party enters into any agreement on trade in services with a non-party.
Article 3.19. Annexes
The following Annexes form part of this Chapter:
- Annex VII (Schedules of Specific Commitments);
- Annex VIII (Lists of MFN Exemptions);
- Annex IX (Recognition of Qualifications of Service Suppliers);
- Annex X (Movement of Natural Persons Supplying Services);
- Annex XI (Financial Services); and
- Annex XII (Telecommunications Services).
Chapter 4. COMPETITION
Article 4.1. Objective and General Principles
1. The Parties agree that anticompetitive business conduct may restrict trade between the Parties. Accordingly, each Party shall adopt or maintain measures to proscribe such conduct and take appropriate action with respect thereto.
2. The Parties undertake to adopt or maintain competition laws that give particular attention to anticompetitive agreements, abuse of a dominant position and mergers and acquisitions.
Article 4.2. Co-operation
The Parties may cooperate with the aim of putting an end to anti-competitive practices or their adverse effects on trade between the Parties. This cooperation may include notification, exchange of information and consultation. Any exchange of information shall be subject to the rules and standards of confidentiality applicable in the territory of each Party.
Article 4.3. Confidentiality
Nothing in this Chapter shall require a Party to provide information when this may affect an ongoing investigation or may be contrary to its laws, including those regarding disclosure of information, confidentiality or business secrecy.
Article 4.4. Consultations
A Party may request consultations regarding any matter related to this Chapter. The request for consultations shall indicate the reasons therefore. Consultations shall be held promptly. Any Party may request that consultations continue within the Joint Committee in order to obtain its recommendations in relation to the issue at hand. The Party addressed shall provide all assistance required to examine the issue and seek a solution thereto.
Article 4.5. Review
The Parties agree to review this Chapter at the level of the Joint Committee with a view to elaborating further steps in the light of future developments, in particular after the adoption of competition legislation by the Parties.
Chapter 5. INTELLECTUAL PROPERTY RIGHTS
Article 5.1. Protection of Intellectual Property Rights
1. For the purpose of this Chapter, "intellectual property" comprises copyright, including copyright in computer programmes and compilations of data, as well as neighbouring rights, trademarks for goods and services, geographical indications, industrial designs, patents, plant varieties, topographies of integrated circuits, as well as undisclosed information within the meaning of Article 39 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "the TRIPS Agreement").
2. The Parties shall ensure adequate, effective and non-discriminatory protection of intellectual property rights, including effective means of enforcing such rights against infringement thereof, in accordance with the provisions of this Chapter.
3. Each Party shall accord to the nationals of the other Parties treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property rights. Exemptions from such obligation must be in accordance with exceptions provided for under Articles 3 and 5 of the TRIPS Agreement.
4. The Parties shall grant to each other's nationals treatment no less favourable than that accorded to nationals of any other country. Exemptions from this obligation must be in accordance with the provisions of the TRIPS Agreement, in particular Articles 4 and 5 thereof.
5. The Parties agree, upon request of any Party to review this Chapter in the Joint Committee in order to avoid or remedy trade distortions and to improve the level of protection. If problems in the area of intellectual property protection affecting trading conditions were to occur, urgent consultations shall take place in the Joint Committee at the request of a Party, with a view to reaching mutually satisfactory solutions.
6. The Parties shall not later than two years after the entry into force of this Agreement conclude negotiations on an Annex containing further provisions on the protection and enforcement of intellectual property rights.
Chapter 6. GOVERNMENT PROCUREMENT
Article 6.1. Scope and Coverage
1. In accordance with the provisions of this Chapter, the Parties shall ensure the effective, reciprocal and gradual opening of their government procurement markets.
2. This Chapter applies to any law, regulation, procedure or practice regarding covered procurement by a procuring entity, whether or not it is conducted exclusively or partially by electronic means.
3. For the purpose of this Chapter, "covered procurement" means procurement for governmental purposes:
(a) of goods (7), services, or any combination thereof:
(i) as specified in Annexes XIII and XIV for each Party, and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase; lease; and rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with Article 6.7, equals or exceeds the relevant threshold specified in Annexes XIII and XIV at the time of publication of a notice in accordance with Article 6.14;
(d) that is not excluded from coverage in paragraph 4 or in Annexes XIII and XIV for a Party. (8)
4. Except where provided otherwise in Annexes XIII or XIV, this Chapter shall not apply to:
(a) contracts awarded pursuant to:
(i) an international agreement and intended for the joint implementation or exploitation of a project by the contracting parties;
(ii) an international agreement relating to the stationing of troops;
(iii) the particular procedure of an international organisation;
(iv) all government procurement in goods, services and construction that will be executed in or for the benefits of the two Holy Cities of Makkah and Medina.
(b) non-contractual agreements or any form of government assistance and procurement made in the framework of assistance or co-operation programmes;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) contracts for:
(i) the acquisition or rental of land, existing buildings, or other immovable property or concerning rights thereon;
(ii) the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time;
(iii) arbitration and conciliation services;
(iv) public employment contracts; and
(v) research and development services other than those where the benefits accrue exclusively to the entity for its use in the conduct of its own affairs, on condition that the service is wholly remunerated by the entity.
5. Each Party shall specify the following information:
(a) in Annex XIII:
(i) in Appendix 1, the central government entities whose procurement is covered by this Chapter;
(ii) in Appendix 2, the sub-central government entities whose procurement is covered by this Chapter;
(iii) in Appendix 3, all other entities whose procurement is covered by this Chapter;
(iv) in Appendix 4, the goods covered by this Chapter;
(v) in Appendix 5, the services covered by this Chapter; and
(vi) in Appendix 6, the construction services covered by this Chapter;
(b) in Annex XIV, any general notes applicable to a Party.
Article 6.2. Exceptions
Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent any Party from imposing or enforcing measures:
(a) necessary to protect public morals, order, or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods produced or services supplied by persons with disabilities, philanthropic institutions, or prison labour.
Article 6.3. Definitions
For the purpose of this Chapter, the following definitions shall apply:
(a) "entity" means an entity covered in Annex XIII;
(b) "in writing or written" means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
(c) "permanent list" means a list of suppliers that a procuring entity has determined that they satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(d) "offsets" means any condition or undertaking that encourage local development or improve a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade, and similar actions;
(e) "person" means a natural person or a juridical person;
(f) "services" includes construction services, unless otherwise specified;
(g) "standard" is a document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or services or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, service, process or production method;
(h) "supplier" means any natural or juridical person or public body or group of such persons of a Party or bodies of a Party which can provide goods, services or the execution of works. The term shall cover equally a supplier of goods, a service provider or a contractor;
(i) "technical regulation" is a document which lays down characteristics of a product or a service or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, service, process or production method;
(j) "technical specifications" means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service; and
(k) "tenderer" means a supplier who has submitted a tender.
Article 6.4. National Treatment and Non-discrimination
1. With respect to all laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall provide immediately and unconditionally to the goods, services and suppliers of another Party a treatment no less favourable than that accorded by it to domestic goods, services and suppliers.
2. With respect to all laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall ensure that:
(a) its entities do not treat a locally-established supplier less favourably than another locally-established supplier on the basis of the degree of foreign affiliation to, or ownership by, a person of another Party; and
(b) its entities do not discriminate against a locally-established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of another Party.
Article 6.5. Rules of Origin
No Party may apply rules of origin to goods imported or services supplied from another Party for purposes of government procurement covered by this Chapter that are different from, or inconsistent with, the rules of origin which that Party applies in the normal course of trade.
Article 6.6. Offsets
1. Except as provided for in paragraph 2, each Party shall ensure that its entities do not, in the qualification and selection of suppliers, goods or services, in the evaluation of bids or in the award of contracts, consider, seek or impose offsets.
2. A Party may adopt or retain an offset as set out in Appendix 6 of Annex XIV, provided that any requirement for, or consideration of, the imposition of the offset is clearly stated in the notice of intended procurement. Such measures shall be based on the development needs of that Party and shall accord suppliers of another Party treatment no less favourable than the treatment it accords to suppliers of any non-party.
Article 6.7. Valuation Rules
1. Entities shall not split up a procurement, nor use any other method of contract valuation with the intention of avoiding the application of this Chapter when determining whether a contract is covered by the disciplines thereof, subject to the conditions set out in Annexes XIII and XIV.
2. In calculating the value of a contract, an entity shall take into account all forms of remuneration, such as premiums, fees, commissions and interests.
Article 6.8. Transparency
1. Each Party shall promptly publish any law, regulation, judicial decision and administrative ruling of general application and procedure, including standard contract clauses and challenge procedures, regarding procurement covered by this Chapter in the appropriate publications referred to in Appendix 2 of Annex XIV, including officially designated electronic media.
2. Each Party shall promptly publish in the same manner all modifications to such measures.
3. Notwithstanding any other provision of this Agreement, a Party, including its procuring entities, shall not provide information to a particular supplier that might prejudice fair competition between suppliers.
Article 6.9. Tendering Procedures
1. Entities shall award their public contracts by using methods such as open or selective tendering procedures according to their national procedures, in compliance with this Chapter.
2. Entities shall treat tenders in confidence. In particular, they shall not provide information intended to assist particular participants to bring their tenders up to the level of other participants.
3. For the purposes of this Chapter:
(a) open tendering procedures are those procedures whereby any interested supplier may submit a tender;
(b) selective tendering procedures are those procedures whereby, consistent with Article 6.10 and other relevant provisions of this Chapter, only suppliers satisfying qualification requirements established by the entities are invited to submit a tender;
(c) limited tendering procedures are those procedures whereby entities may choose not to publish a notice of intended procurement, and may consult the suppliers of their choice and negotiate the terms of contract with one or more of these suppliers, under the conditions laid down in Article 6.12.