2. This Chapter shall not apply to measures affecting:
(a) subsidies or grants including government-supported loans, guarantees and insurance provided by a Party or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies are offered exclusively to domestic services, service consumers or service suppliers;
(b) a service supplied in the exercise of governmental authority;
(c) government procurement;
(d) air traffic rights, however granted; or to measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(e) natural persons seeking access to the employment market of a Party; or
(f) citizenship, residence or employment on a permanent basis.
3. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party 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 accruing to the other Party under the terms of this Chapter. The sole fact of requiring a visa shall not be regarded as nullifying or impairing benefits under a specific commitment.
4. Unless they are specifically defined in this Chapter or in Annex 8A (Schedule of Specific Commitments - Thailand) or Annex 8B (Schedule of Specific Commitments - Sri Lanka), terms used in this Chapter and in the Annexes shall be construed in accordance with their meaning in GATS, mutatis mutandis.
5. Notwithstanding any other provision of this Chapter, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system; or to ensure the stability of the exchange rate, including to prevent speculative capital flows subject to the following:
(i) where such measures do not conform with the provisions of this Chapter, they shall not be used as a means of avoiding the Partyâs commitments or obligations under this Chapter.
(ii) for measures to ensure the stability of the exchange rate including to prevent speculative capital flows, such measures shall be no more than necessary, and phased out when conditions no longer justify their institution or maintenance.
Article 8.3. Market Access
1. With respect to market access through the modes of supply defined in sub-paragraph (v) of Article 1 (Definitions), each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in Annex 8A (Schedule of Specific Commitments - Thailand) or Annex 8B (Schedule of Specific Commitments - Sri Lanka) (1).
2. Insectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annex 8A (Schedule of Specific Commitments - Thailand) or Annex 8B (Schedule of Specific Commitments - Sri Lanka), are:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (2);
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 8.4. National Treatment
1. Inthe sectors inscribed in Annex 8A (Schedule of Specific Commitments - Thailand) or Annex 8B (Schedule of Specific Commitments - Sri Lanka), and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers. (3)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party compared to like services or service suppliers of the other Party.
Article 8.5. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Article 8.3 (Market Access) or Article 8.4 (National Treatment), including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Partyâs Schedule.
Article 8.6. Schedule of Specific Commitments
1. Each Party shall set out in a Schedule the Specific Commitments it undertakes under Article 8.3 (Market Access), Article 8.4 (National Treatment) and Article 8.5 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments;
(d) where appropriate, the time-frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Article 8.3 (Market Access) and Article 8.4 (National Treatment) shall be inscribed in the column relating to Article 8.3 (Market Access). In this case, the inscription will be considered to provide a condition or qualification to Article 8.4 (National Treatment) as well.
3. The Schedules of Specific Commitments shall be annexed to this Chapter and shall form an integral part thereof.
Article 8.7. Modification of Schedules
1, A Party may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article. It shall notify the other Party of its intent to so modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of the other Party whose benefits under this Agreement may be affected by a proposed modification or withdrawal notified under paragraph 1, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Party concerned shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of Specific Commitments prior to such negotiations.
3. The Parties shall endeavour to conclude negotiations on such compensatory adjustment to mutual satisfaction within six months, failing which recourse may be had to the provisions of Chapter 13 (Dispute Settlement).
Article 8.8. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concemed, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. The provisions of paragraph 2 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.
4. Where authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of a Party shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
5. With the objective of ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute an unnecessary barrier to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measures, pursuant to paragraph 4 of Article VI of the GATS, with a view to their incorporation into this Chapter. The Parties note that such disciplines aim to ensure that such requirements 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.
6. For sectors where a Party has undertaken specific commitments and subject to any terms, limitations, conditions or qualifications set out therein, pending the incorporation of disciplines pursuant to paragraph 5, a Party shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments in a manner which:
(a) does not comply with the criteria outlined in sub-paragraphs (a), (b) or (c) of paragraph 5; and
(b) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
7. In determining whether a Party is in conformity with the obligation under paragraph 6, account shall be taken of international standards of relevant international organisations (4) applied by that Party.
Article 8.9. Recognition
1. For the purposes of the fulfilment of its standards or criteria for the authorisation, licensing or certification of services suppliers, a Party may recognise the education or experience obtained, requirements met, or licenses or certifications granted in the other Party.
2. The Parties shall encourage their relevant competent bodies to enter into negotiations on recognition of professional qualifications, licenses, or registration procedures with a view to the achievement of early outcomes.
3. Any arrangement reached pursuant to paragraph 2 shall be consistent with this Agreement.
Article 8.10. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Partyâs obligations under Schedule of Specific Commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's Schedule of specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. If a Party has reason to believe that a monopoly supplier of a service of another Party is acting in a manner inconsistent with paragraphs 1 or 2, it may request the Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 8.11. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 10, may restrain competition and thereby restrict trade in services.
2. A Party shall, at the request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its domestic laws and regulations and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 8.12. Emergency Safeguard Measures
1. The Parties note the multilateral negotiations pursuant to Article X of the GATS on the question of emergency safeguard measures based on the principle of non-discrimination. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Agreement so as to incorporate the results of such multilateral negotiations.
2. In the event that the implementation of this Agreement causes substantial adverse impact to a service sector of a Party before the conclusion of the multilateral negotiations referred to in paragraph 1, the affected Party may request for consultations with the other Party for the purposes of discussing any measure with respect to the affected service sector. Any measure taken pursuant to this paragraph shall be mutually agreed by the Parties. The Parties shall take into account the circumstances of the particular case and give sympathetic consideration to the Party seeking to take a measure.
Article 8.13. 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 Articles of Agreement of the International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific 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 8.14. Restrictions to Safeguard Balance of Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services, including on payments or transfers for transactions relating to such obligations. It is recognised that particular pressures on the balance-of-payments of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.
2. The restrictions referred to in paragraph 1:
(a) shall not discriminate among WTO Members;
(b) shall be consistent with the Articles of Agreement of the International Monetary Fund;
(c) shall avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(d) shall not exceed those necessary to deal with the circumstances described in paragraph 1;
(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
3. In determining the incidence of such restrictions, a Party may give priority to the supply of services which are more essential to its economic or development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
4. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the other Party.
5. The Party adopting any restrictions in accordance with paragraph 1 shall commence consultations with the other Party promptly in order to review the restrictions adopted.
Article 8.15. Transparency
1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Chapter. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.
2. Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.
3. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1. Communication between the Parties in this regard shall be done through their designated contact points.
Article 8.16. Disclosure of Confidential Information
Nothing in this Chapter shall require any 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 legitimate commercial interests of particular enterprises, public or private.
Article 8.17. Denial of Benefits
Subject to prior notification and prompt consultation, a Party may deny the benefits of this Chapter:
(a) to the supply of any service, if it establishes that the service is supplied from or in the territory of a non-Party;
(b) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(i) by a vessel registered under the laws of a non-Party, and
(ii) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party;
(c) to a service supplier, that is juridical person, if it establishes that it is not a service supplier of the other Party where the Party establishes that the service supplier is owned or controlled by persons of a non-Party and that it has no substantive business operations in the territory of a Party.
Article 8.18. Contact Points
Each Party shall designate one or more contact points to facilitate communication between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
Article 8.19. Committee on Trade In Services
1. The Parties hereby establish a Committee on Trade in Services that shall meet as mutually determined by the Parties or the Joint Committee to consider any matter arising under this Chapter.
2. The Committee's functions shall include:
(a) reviewing the implementation and operation of this Chapter,
(b) exchanging information and recommendation of measures to promote increased trade in services between the Parties; and
(c) considering and discussing any issues related to this Chapter.
Article 8.20. Miscellaneous Provisions
The GATS Annexes, namely, Annex on Movement of the Natural Persons Supplying Services under the Agreement, Annex on Air Transport Services, Annex on Financial Services, and Annex on Telecommunications, shall apply to this Chapter, mutatis mutandis.
Chapter 9. INVESTMENT
Article 9.1. Definitions
For the purposes of this Chapter:
(a) covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, expanded or operated thereafter, which has been admitted and, where applicable, specifically approved in writing for protection by the competent authorities of the host Party, in accordance with its laws, regulations, and policies;
(b) freely usable currencies means a freely usable currency as determined by the International Monetary Fund (IMF) under its Articles of Agreement and any amendments thereto, or any currency that is used to make international payments and is widely traded in international principal exchange markets;
(c) investments means every kind of asset that an investor owns or controls, which has the characteristics of an investment, (1) such as the commitment of capital or other resources, the expectation of gains or profits, or the assumption of risk. The forms that an investment may take include in particular:
(i) a juridical person;
(ii) movable and immovable property, and any other property rights, such as leases, mortgages, liens, and pledges; (2)
(iii) shares, stocks, and any other form of equity participation, excluding beneficial ownership, of a juridical person and rights derived therefrom;
(iv) bonds and debentures of a juridical person and rights derived therefrom;
(v) returns reinvested;
(vi) claims to money and to any other rights to contractual performance having a financial value related to investment; (3)
(vii) intellectual property rights which are recognised pursuant to the laws and regulations of the host Party;
(viii) rights under contracts, including construction, management, production, or revenue-sharing contracts; and
(ix) rights conferred pursuant to the laws and regulations of the host Party or contracts, such as concessions, licences, authorisations, and permits.
The term "investment" does not include an order or judgment, sought or entered in any judicial, administrative, or arbitral proceeding, including an arbitral award.
For the purposes of the definition of investment in this subparagraph, returns that are invested shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their character as investments;
(d) investor of a Party means a natural person of a Party, (4) or a juridical person of a Party recognised as a legal entity by the law of the other Party, that seeks to make, (5) is making an investment or has made a covered investment in the territory of the other Party;
(e) juridical person means any entity constituted or organised under the applicable law of the host Party; (6) (7) (8)
(f) juridical person of a Party means a juridical person constituted or otherwise organised under the laws and regulations of that Party and is engaged in substantive business operations in that Party;
(g) measure means any measure taken by a Party, whether in the form of a law, regulation, rule, procedure, decision or administrative action, and includes measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(h) natural person of a Party means any natural person possessing the nationality or citizenship of that Party in accordance with its laws and regulations; and
(i) return means an amount yielded by or derived from an investment, including profits, dividends, interest, capital gains, royalty payments, payments in connection with intellectual property rights, and all other lawful income.
Article 9.2. Scope and Coverage
1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and