3. Where goods are covered by an Annex or an Implementing Arrangement to this Chapter and a Party takes a measure to manage an immediate risk that it considers those goods may pose to health, safety or the environment, it shall immediately notify the other Party, through the Contact Points established under Article 7.10 (Implementation), of the measure and the reasons for the imposition of the measure.
Article 7.9. Transparency
1. In order to enhance the opportunity for the Parties and interested persons to provide meaningful comments, a Party publishing a notice under Article 2.9 or 5.6 of the WTO TBT Agreement shall:
(a) include in the notice a statement describing the objective of the proposal and the rationale for the approach that Party is proposing; and
(b) transmit the proposal electronically to the other Party through its enquiry point established under Article 10 of the WTO TBT Agreement at the same time as it notifies WTO Members of the proposal pursuant to the WTO TBT Agreement.
2. Each Party shall allow at least 60 days from the transmission of the notification under paragraph 1(b) for the other Party and interested persons to make comments on the proposal in writing.
3. Where a Party makes a notification under Article 2.10 or 5.7 of the WTO TBT Agreement, it shall at the same time transmit the notification to the other Party electronically, through its enquiry point established under Article 10 of the WTO TBT Agreement.
Article 7.10. Implementation
1. Each Party shall designate a Contact Point which shall have responsibility to coordinate the implementation of this Chapter.
2. The Parties shall provide each other with the name of the designated organisation that shall be their Contact Point and the contact details of relevant official in that organisation, including telephone, fax, e-mail and other relevant details.
3. The Parties shall notify each other promptly of any change of their Contact Points or any amendments to the details of the relevant officials.
4. The Parties shall establish a Committee on Technical Barriers to Trade (“TBT Committee”) consisting of the Contact Points and any other representatives of the Parties to promote and monitor the implementation and administration of this Chapter. The TBT Committee shall meet within one year of entry into force of this Agreement and at least once a year thereafter or more frequently if the Contact Points agree. Meetings may be conducted in person, by teleconference, by video-conference or any other means mutually determined by the Parties.
5. The TBT Committee shall:
(a) identify priority sectors for enhanced cooperation, including giving favourable consideration to any sector specific proposal made by either Party;
(b) establish work programmes with clear targets, design structures and timelines in priority areas;
(c) monitor the progress of work programmes;
(d) consult with a view to resolving any matter arising under this Chapter, in accordance with Article 7.11 (Technical Consultations);
(e) review this Chapter in light of any developments under the WTO
TBT Agreement, and developing recommendations for amendments to this Chapter in light of those developments; and
(f) report to the Joint Commission on the implementation of this Chapter, as it considers appropriate.
6. The Parties shall ensure that the persons and organisations in the respective territories that have responsibility for accreditation or relevant regulations, shall participate in work programmes and technical consultations where the TBT Committee has:
(a) identified a priority sector for enhanced cooperation under paragraph 5(a);
(b) established a work programme under paragraph 5(b); or
(c) been requested to undertake technical consultations under Article 7.11 (Technical Consultations).
7. For the purposes of implementing this Chapter, the Contact Point of each Party shall:
(a) coordinate participation in work programmes with persons and organisations in their respective territories that have responsibility for accreditation or relevant regulations;
(b) ensure appropriate steps are taken to address any issue that a Party may raise related to the development, adoption, application or enforcement of technical regulations and conformity assessment procedures;
(c) enhance cooperation in the development and improvement of technical regulations and conformity assessment procedures in conjunction with the Contact Point of the other Party;
(d) facilitate, where appropriate, sectoral cooperation between governmental and non-governmental regulatory authorities, accreditation agencies and conformity assessment bodies in the Parties’ territories;
(e) exchange information on developments in non-governmental, regional and multilateral fora engaged in activities related to standardisation, technical regulations and conformity assessment procedures; and
(f) take any other steps the Parties consider will assist them in implementing the WTO TBT Agreement and in facilitating trade in goods between them.
8. Both Parties recognise the need to develop cooperation in the field of technical barriers to trade for the purposes of implementing this Chapter. Such cooperation may include, but is not limited to:
(a) joint studies, seminars and symposia;
(b) where appropriate, effectively using the existing framework for mutual recognition developed by relevant regional and international bodies;
(c) exchange of information;
(d) exchange of Government officials for training purposes;
(e) enhanced cooperation in the development and improvement of technical regulations and conformity assessment procedures; and
(f) any other form of cooperation as agreed by both Parties.
Article 7.11. Technical Consultations
1. Either Party may request technical consultations in accordance with Article 7.10(5)(d) (Implementation) and, unless the Parties mutually determine otherwise, the Parties shall hold technical consultations within 60 days from the request for technical consultations by e-mail, by teleconference, by video- conference, or through any other means, as mutually determined by the Parties.
2. Where a Party has requested technical consultations on the application of any technical regulation or the recognition of any standard or conformity assessment procedure, the other Party shall investigate the issues that gave rise to the request for consultations, shall address any irregularities in the implementation of its technical regulations or conformity assessment procedures, and shall report back to the other Party on the outcome of its investigations stating its reasons.
3. Technical consultations held pursuant to this Article are without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement).
Article 7.12. Agreements or Arrangements
1. The Parties shall seek to identify trade-facilitating initiatives regarding standards, technical regulations and conformity assessment procedures that are appropriate for particular issues or sectors.
2. Such trade-facilitating initiatives may include agreements or arrangements on regulatory issues, such as alignment of standards, convergence or equivalence of technical regulations, conformity assessment procedures and compliance issues.
3. The Parties may conclude Annexes to this Chapter setting out agreed principles and procedures relating to technical regulations and conformity assessments applicable to goods traded between them.
4. The Parties may conclude Implementing Arrangements setting out:
(a) details for the implementation of the Annexes to this Chapter; and
(b) arrangements resulting from work programmes established under Article 7.10 (Implementation).
5. The Parties acknowledge that Annexes and Implementing Arrangements
concluded in accordance with this Chapter may take the form of a variety of mechanisms. This may include the use of asymmetrical approaches, where appropriate.
6. The Parties shall reflect any existing bilateral, regional and multilateral arrangements concerning technical regulations and conformity assessment procedures that both Parties participate in when developing Annexes and Implementing Arrangements.
7. Where only one Party is party to agreements or arrangements identified as trade-facilitating initiatives under paragraphs 1 and 2, that Party shall consider extending such agreements or arrangements to the other Party, at the request of the other Party. Such consideration may be subject to appropriate confidence- building processes to ensure equivalency of relevant standards, technical regulations and/or conformity assessment procedures
8. Where a Party declines a request of the other Party to consider extending the application of an existing agreement or arrangement, it shall, upon request of that Party, explain the reasons for its decision.
9. The Parties agree to maintain a programme of ongoing review and enhancement of Annexes and Implementing Arrangements.
Chapter EIGHT. TRADE IN SERVICES
Article 8.1. Definitions
For purposes of this Chapter:
(a) Aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called line maintenance;
(b) Commercial presence means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a legal person, or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purposes of supplying a service;
(c) Computer reservation system services means services provided by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) Ground-handling services include cargo-handling services provided for freight in special containers, non-containerised freight or for passenger baggage, including services of freight terminal facilities and baggage handling services at airports; aircraft cleaning and disinfecting services; hangar services; and aircraft towing services;
(e) Measures adopted or maintained by a Party means any measure of a Party, whether in the form of law, regulation, rule, procedure, decision, and administrative action or practice, adopted or maintained by:
(i) central, state or local Government and authorities; or
(ii) non-governmental bodies in the exercise of powers delegated by central, state or local Governments or authorities;
Such measures include measures affecting:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
(f) Monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(g) Natural person means:
(i) in respect of Malaysia, is a citizen of Malaysia or has the right of permanent residence in Malaysia; and
(ii) in respect of New Zealand, is a citizen of New Zealand or has the right of permanent residence in New Zealand;
(h) Sector of a service means:
(i) with reference to a specific commitment, one or more, or all, sub-sectors of that service, as specified in a Party’s Schedule in Annex 4 (Schedules of Specific Services Commitments); or
(ii) otherwise, the whole of that service sector, including all of its sub-sectors;
(i) Selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing, such as market research, advertising and distribution. These activities do not include the pricing of air transport services or the applicable conditions;
(j) Service of the other Party means a service which is supplied:
(i) from or in the territory of the other Party; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(k) Service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(l) Service supplier of a Party means any person of a Party that supplies a service;
(m) State enterprise means an enterprise that is owned or controlled by a Party;
(n) Supply of a service includes the production, distribution, marketing, sale and delivery of a service;
(o) Trade in services means the supply of a service:
(i) from the territory of one Party into the territory of the other Party (“cross-border mode”);
(ii) in the territory of one Party to the service consumer of the other Party (“consumption abroad mode”);
(iii) by a service supplier of one Party, through commercial presence in the territory of the other Party (“commercial presence mode”); and
(iv) by a service supplier of one Party, through presence of natural persons of that Party in the territory of the other Party (“presence of natural persons mode”); and
(p) Traffic rights mean the right for scheduled and non-scheduled services to operate and/or carry passengers, cargo and mail for remuneration or hire from, to within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.
Article 8.2. Objectives
The objectives of this Chapter are to:
(a) facilitate expansion of trade in services on a mutually advantageous basis, under conditions of transparency and progressive liberalisation, while recognising the rights of Parties to regulate services, and the role of Governments in providing and funding public services, and giving due respect to national policy objectives; and
(b) enhance cooperation amongst the service suppliers from both Parties, aimed at promoting bilateral trade in services.
Article 8.3. Scope and Coverage
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services.
2. Chapter 10 (Investment) shall not apply to measures adopted or maintained by a Party affecting trade in services.
3. Notwithstanding paragraph 2, the following Articles and Sections of Chapter 10 (Investment) shall apply, mutatis mutandis, to measures affecting the supply of services by a service supplier of a Party through commercial presence in the territory of the other Party pursuant to this Chapter, but only to the extent that they relate to a covered investment and an obligation under Chapter 10 (Investment), regardless of whether or not such a service sector is scheduled in a Party’s Schedule in Annex 4 (Schedules of Specific Services Commitments):
(a) Article 10.7 (Transfers);
(b) Article 10.8 (Expropriation);
(c) Article 10.9 (Compensation for Losses);
(d) Article10.10 (Minimum Standard of Treatment);
(e) Article 10.13 (Subrogation); and
(f) Section B (Investor-State Dispute Settlement).
4. This Chapter shall not apply to:
(a) services supplied in the exercise of governmental authority;
(b) any measures by a Party with respect to government procurement;
(c) subsidies or grants provided by a Party or State Enterprise thereof, including Government-supported loans, guarantees, and insurance, or to any conditions attached to the receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers or service suppliers, except as provided for in Article 8.17 (Subsidies);
(d) cabotage in maritime transport services;
(e) measures affecting natural persons seeking access to the employment market of a Party; or
(f) measures regarding citizenship, nationality, residence or employment on a permanent basis.
5. 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 for natural persons of either Party and not for those of others shall not be regarded as nullifying or impairing benefits under this Chapter.
6. This Chapter shall not apply to measures affecting air traffic rights, however granted, or services directly related to the exercise of traffic rights, except measures affecting:
(a) aircraft repair and maintenance services;
(b) the selling and marketing of air transport services;
(c) computer reservation system services; and
(d) ground-handling services.
7. The Parties note the multilateral negotiations pursuant to the review of the GATS Annex on Air Transport Services. 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.
Article 8.4. Market Access
1. With respect to market access through the modes of supply defined in Article 8.1(o) (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 its Schedule in Annex 4 (Schedules of Specific Services Commitments).
2. In sectors 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 its Schedule in Annex 4 (Schedules of Specific Services Commitments), are defined as:
(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, except measures of a Party which limit inputs for the supply of services;
(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 8.5. National Treatment
1. In the sectors inscribed in its Schedule in Annex 4 (Schedules of Specific Services Commitments) 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.
2. A Party may meet the requirement in 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 the Party compared to the like service or service suppliers of the other Party.
4. Commitments assumed under this Article shall not be construed to require either Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
Article 8.6. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to Article 8.4 (Market Access) or 8.5 (National Treatment), including those regarding qualifications, standards or licensing matters. Such commitments shall be set out in a Party’s Schedules in Annex 4 (Schedules of Specific Services Commitments) and Annex 6 (Schedules of Movement of Natural Persons Commitments).
Article 8.7. Schedule of Specific Commitments
1. Each Party’s initial schedule of its specific commitments undertaken under Articles 8.4 (Market Access), 8.5 (National Treatment) and 8.6 (Additional Commitments) are set out in Annex 4 (Schedules of Specific Services Commitments). The specific commitments in respect of the supply of a service by a service supplier of one Party through presence of natural persons of that Party in the territory of the other Party are set out in Annex 6 (Schedules of Movement of Natural Persons Commitments).
2. With respect to sectors where the specific commitments are undertaken, each schedule of specific commitments in Annex 4 (Schedules of Specific Services Commitments) shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments; and
(d) where appropriate, the time-frame for implementation of such commitments.
3. Measures inconsistent with Articles 8.4 (Market Access) and 8.5 (National Treatment) have been inscribed in the column relating to Article 8.4 (Market Access). This inscription shall be considered to provide a condition or qualification to Article 8.5 (National Treatment) as well.
Article 8.8. Most Favoured Nation Treatment
1. In respect of the services sectors listed in Annex 5 (Most Favoured Nation Treatment Sectoral Coverage Under Article 8.8), and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a third party.
2. Notwithstanding paragraph 1, the Parties reserve the right to adopt or maintain any measure that accords differential treatment to third parties under any free trade agreement or multilateral international agreement in force or signed prior to the date of entry into force of this Agreement.
3. For greater certainty, paragraph 2 includes, in respect of agreements on the liberalisation of trade in goods or services or investment, any measures taken as part of a wider process of economic integration or trade liberalisation between the parties to such agreements.
4. The Parties reserve the right to adopt or maintain any measure that accords differential treatment to third parties under any international agreement in force or signed after the date of entry into force of this Agreement involving: