(a) aviation;
(b) fisheries; and
(c) maritime matters.
Article 8.9. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the registration, authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 5, a Party may recognise the education or experience obtained, requirements met, or licences or certification granted in the other Party.
2. Recognitionreferredtoinparagraph1,whichmaybeachievedthrough harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or may be accorded unilaterally.
3. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a third party, nothing in Article 8.8 (Most Favoured Nation Treatment) shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the territory of the other Party.
4. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 3, whether existing or future, shall afford adequate opportunity for the other Party, upon request, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Party’s territory should be recognised.
5. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the registration, authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
6. Within two years of entry into force of this Agreement, both Parties shall encourage the development of mutual recognition arrangements among competent bodies on professional services, by facilitating discussion between these bodies and exchange of information through focal points.
7. Within one year of entry into force of this Agreement, the Parties shall establish a mechanism that allows for the recognition of the equivalency of qualifications granted within the other Party.
Article 8.10. Areas of Cooperation
The Parties shall facilitate strengthening of cooperation amongst services providers, inter alia:
(a) by promoting joint venture and marketing arrangements;
(b) through research and development; and
(c) through exchange of information.
Article 8.11. 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 the Party’s commitments under this Chapter.
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 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 a reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraph 1 or 2, it may request the other Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. 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 8.12. Emergency Safeguard Measures
1. The Parties shall initiate discussions within one year from the entry into force of this Agreement to develop mutually acceptable guidelines and procedures for the application of emergency safeguard measures. These guidelines and procedures shall be annexed to and shall form part of this Agreement.
2. Notwithstanding paragraph 1, if a Party deems to be affected by the negative impact caused by its specific commitments as set out in Annex 4 (Schedules of Specific Services Commitments), that Party may request to hold a consultation with the other Party and the other Party shall respond to such a request in good faith.
3. In the consultations, the Parties shall endeavour to reach a mutually acceptable solution within a reasonable time.
Article 8.13. Payments and Transfers
1. Except under the circumstances envisaged in Article 17.3 (Measures to Safeguard Balance of Payments), a Party shall not apply restrictions on international transfers and payments for current transactions relating to trade in services.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties as members of the International Monetary Fund (“the 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 commitments under this Chapter regarding such transactions, except under Article 17.3 (Measures to Safeguard Balance of Payments) or at the request of the Fund.
Article 8.14. Denial of Benefits
1. Subject to prior notification, a Party may deny the benefits of this Chapter to a service supplier of the other Party where the Party establishes that:
(a) the service is being supplied by an enterprise that is owned or controlled by persons of a third party and the enterprise has no substantive business operations in the territory of the other Party; or
(b) the service is being supplied by an enterprise that is owned or controlled by persons of the denying Party and the enterprise has no substantive business operations in the territory of the other Party.
2. A Party that denies benefits pursuant to paragraph 1 shall enter into consultations within 30 days following notification if requested by the other Party. Such consultations shall be without prejudice to the Parties’ rights under the Chapter 16 (Dispute Settlement).
Article 8.15. Review of Commitments
1. The Parties shall enter into successive rounds of negotiations, beginning no later than two years from the date of entry into force of this Agreement, and periodically thereafter as determined by the Joint Commission, with a view to further improving specific commitments under this Chapter so as to progressively liberalise trade in services between the Parties.
2. If a Party concludes an agreement on trade in services on a “negative list” basis (4) with a third party after this Agreement comes into force, that Party shall, at the request of the other Party, within three months from this request, commence re-negotiation of the specific commitments set out in Annex 4 (Schedules of Specific Services Commitments) with a view to the progressive liberalisation of trade in services between them. The re-negotiation shall proceed on a “negative list” basis. The Parties shall endeavour to conclude the re-negotiation on the specific commitments within 18 months from the date the negotiations commence.
3. Any review of commitments undertaken under this Article shall also include a review of Article 8.8 (Most Favoured Nation Treatment) with a view to progressive extension of the Most Favoured Nation Treatment to additional services sectors not listed in Annex 5 (Most Favoured Nation Treatment Sectoral Coverage Under Article 8.8).
Article 8.16. Modification of Schedules
1. A Party ("modifying Party") may modify or withdraw any commitment in its Schedules in Annex 4 (Schedules of Specific Services Commitments) and Annex 6 (Schedules of Movement of Natural Persons Commitments) at any time after three years have elapsed from the date on which that commitment entered into force.
2. The modifying Party shall notify the other Party ("the affected Party") of its intent to modify or withdraw a commitment pursuant to this Article no later than three months before the intended date of implementation of the modification or withdrawal.
3. The modifying Party may only modify or withdraw its commitments where the modifying Party makes compensatory adjustments to its Schedules to maintain a general level of mutually advantageous commitments that is no less favourable to trade in services than provided for in its Schedules prior to the modification.
4. Upon notification of a Party's intent to make such modification, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment.
5. If agreement pursuant to paragraphs 3 and 4 is not reached between the modifying Party and the affected Party within three months, the affected Party may refer the matter to arbitration in accordance with the procedures set out in Chapter 16 (Dispute Settlement).
6. The modifying Party may not modify or withdraw its commitment until it has made the necessary adjustments in conformity with the findings of the arbitration in relation to the question of whether paragraph 3 is satisfied in accordance with paragraph 5.
Article 8.17. Subsidies
1. Notwithstanding Article 8.3(4)(c) (Scope and Coverage), the Parties shall review the issue of disciplines on subsidies related to trade in services in the light of any disciplines agreed under Article XV of GATS.
2. The Parties recognise that, in certain circumstances, subsidies may have distortive effects on trade in services. Any Party which considers that it is adversely affected by a subsidy of the other Party may request consultations with that Party on such matters. Such request shall be accorded sympathetic consideration.
Article 8.18. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. With a view to ensuring that any measure maintained or adopted by a Party relating to the authorisation, licensing or qualification of service suppliers of the other Party does not constitute an unnecessary barrier to trade in services, each Party shall ensure that such a measure:
(a) is based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) is not more burdensome than necessary to ensure the quality of the service; and
(c) does not constitute a disguised restriction on the supply of the services.
3. If the results of the negotiations under Article VI.4 of GATS enter into effect, the Parties shall jointly review these results with a view to their incorporation into this Agreement.
4. In determining whether a Party is in conformity with its obligations under paragraph 2, account shall be taken of international standards of relevant international organisations applied by that Party.
5. Where authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of that Party shall:
(a) in the case of an incomplete application, at the request of the applicant, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) 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;
(c) at the request of the applicant, provide, without undue delay, information concerning the status of the application under consideration; and
(d) if an application is terminated or denied, to the maximum extent possible, inform the applicant in writing and without delay the reasons for such action. The applicant shall have the possibility of resubmitting, at its discretion, a new application.
6. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competency of professionals of the other Party.
Article 8.19. Committee on Trade In Services
1. For purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Committee on Trade in Services (“the Committee”) to consider any matter arising under this Chapter and Chapter 9 (Movement of Natural Persons).
2. The functions of the Committee include:
(a) conducting reviews of commitments in accordance with Article 8.15 (Review of Commitments);
(b) reviewing the implementation and operation of this Chapter and Chapter 9 (Movement of Natural Persons);
(c) reviewing and discussing issues concerning effective implementation of Mutual Recognition Arrangements under Article 8.9 (Recognition) and Emergency Safeguard Measures under Article 8.12 (Emergency Safeguard Measures);
(d) considering other trade in services issues of interest to a Party; and
(e) reporting outcomes of discussions to the Joint Commission.
3. The Committee shall:
(a) comprise of Government representatives and may invite representatives of relevant entities, other than the Governments, with the necessary expertise relevant to the issues to be discussed; and
(b) be co-chaired by officials of the Governments.
4. The Committee shall convene its first meeting within one year of entry into force of this Agreement. The subsequent meetings of the Committee shall be held at such frequency to be agreed by both Parties.
Chapter NINE. MOVEMENT OF NATURAL PERSONS
Article 9.1. Definitions
For the purposes of this Chapter:
(a) Business visitor means a natural person of a Party:
(i) who is seeking temporary entry to the territory of the other Party for the purpose of:
(1) attending meetings or conferences, or engaging in consultations with business colleagues;
(2) taking orders or negotiating contracts for an enterprise located in the territory of the Party, but not selling goods or providing services to the general public; or
(3) undertaking business consultations concerning the establishment, expansion or winding up of a business enterprise or investment in the other Party, or any related matter;
(ii) who is not seeking to enter the labour market of the other Party; and
(iii) whose principal place of business, actual place of remuneration, and predominant place of accrual of profits remain outside the territory of the other Party;
(b) Immigration formality means a visa, permit, pass or other document, or electronic authority, granting a natural person of one Party the right to enter, reside or work in the territory of the other Party;
(c) Installer or maintainer means a natural person who is an installer or maintainer of machinery and/or equipment, who is employed or appointed by a supplying company, where such installation and/or maintaining by the supplying company is a condition of purchase of the said machinery and/or equipment; and is not performing activities which are not related to the installing or maintaining activities which is the subject of the contract;
(d) Intra-corporate transferee means a senior manager or a specialist who is an employee of a service supplier or investor of a Party with a commercial presence in the territory of the other Party;
(e) Natural person means a natural person as defined in Article 8.1(g) (Definitions);
(f) Senior manager means a natural person within an organisation of a Party who is:
(i) a senior employee of that organisation with responsibility for the entire organisation’s operations, or a substantial part of it, in the territory of the other Party; and
(ii) having proprietary information of the organisation and receives only general supervision or direction from higher level executives, or the board of directors or stockholders of the organisation.
(g) Specialist means a natural person of a Party within an organisation of a Party who possesses:
(i) knowledge at an advanced level of technical expertise; and
(ii) proprietary knowledge of the organisation’s service, research equipment, techniques, or management; and
(h) Temporary entry means entry by a natural person covered by this Chapter, without the intent to establish permanent residence.
Article 9.2. Objectives
The objectives of this Chapter are to:
(a) facilitate the movement of natural persons of either Party engaged in the conduct of trade and investment between the Parties through streamlined and transparent immigration procedures for temporary entry; and
(b) provide for rights and obligations additional to those set out in Chapter 8 (Trade in Services) and Chapter 10 (Investment) in relation to the movement of natural persons between the Parties for business purposes;
while recognising the need to ensure border security and to protect the domestic labour force and permanent employment in the territories of the Parties.
Article 9.3. Scope
1. This Chapter shall apply, as set out in each Party’s commitments in Annex6 (Schedules of Movement of Natural Persons Commitments), to measures affecting the movement of natural persons of a Party into the territory of the other Party. Such persons may include:
(a) business visitors;
(b) contractual service suppliers;
(c) independent service suppliers/professionals;
(d) intra-corporate transferees; or
(e) installers or maintainers.
2. This Chapter does not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
3. Nothing in this Chapter, Chapter 8 (Trade in Services) or Chapter 10 (Investment) 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.
Article 9.4. Application Procedures
1. Where an application for an immigration formality is required by a Party, the Party shall process expeditiously complete applications for immigration formalities, or extensions thereof, received from natural persons of the other Party covered by Article 9.3(1) (Scope).
2. A Party shall within 15 working days of receipt of an application for temporary entry that has been completed and submitted in accordance with its laws and regulations either:
(a) make a decision on the application and inform the applicant of the decision; or
(b) if a decision cannot be made in that time period, inform the applicant accordingly.
In the case of subparagraph (b), the decision shall in any case be made and the applicant informed of the decision within 40 working days from the date of receipt of the application.
3. At the request of an applicant, a Party in receipt of a completed application for temporary entry shall provide, without undue delay, information concerning the status of the application.
Article 9.5. Grant of Temporary Entry
1. Each Party shall, in accordance with that Party’s commitments in Annex 6 (Schedules of Movement of Natural Persons Commitments), grant temporary entry or extension of temporary stay in accordance with this Chapter to natural persons of the other Party, provided those natural persons:
(a) follow prescribed application procedures for the immigration formality sought; and
(b) meet all relevant eligibility requirements for entry to the granting Party.
2. Temporary entry granted pursuant to this Chapter does not replace the requirements needed to carry out a profession or activity according to the specific laws and regulations in force in the territory of the Party authorising the temporary entry.
3. Any fees imposed in respect of the processing of an immigration formality shall be reasonable and in accordance with domestic law.
Article 9.6. Schedules of Commitments for the Entry and Temporary Stay of Natural Persons
Each Party shall set out in Annex 6 (Schedules of Movement of Natural Persons Commitments) a schedule containing its commitments for the temporary entry and stay in its territory of natural persons of the other Party covered by Article 9.3 (Scope). These schedules shall specify the conditions and limitations governing those commitments, including the length of stay, for each category of natural persons included in each Party’s schedule of commitments.
Article 9.7. Transparency
Each Party shall:
(a) publish or otherwise make publicly available explanatory material on all relevant immigration formalities which pertain to or affect the operation of this Chapter;
(b) no later than 45 working days after the date of entry into force of this Agreement publish, such as on its immigration website, the requirements for temporary entry under this Chapter, including explanatory material and relevant forms and documents that will enable business persons of the other Party to become acquainted with its requirements; and
(c) upon modifying or amending an immigration measure that affects the temporary entry of business persons, ensure that the information published pursuant to subparagraph (b) is updated within 30 working days.
Article 9.8. Contact Points
Each Party shall designate a Contact Point to facilitate communication and the effective implementation of this Chapter, and respond to inquiries from the other Party regarding regulations affecting the movement of natural persons between the Parties or on any matters covered in this Chapter, and shall provide details of this Contact Point to the other Party. The Parties shall notify each other promptly of any amendments to the details of their Contact Point.
Article 9.9. Dispute Settlement
1. The Parties shall endeavour to settle any differences arising out of the implementation of this Chapter through consultations.
2. A Party shall not have recourse to Chapter 16 (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice on the part of the granting Party; and
(b) the natural persons affected have exhausted all available domestic remedies regarding the particular matters.
Chapter TEN. Investment
Article 10.1. Definitions
For the purposes of this Chapter:
(a) Appointing Authority means in the case of arbitration or conciliation under ICSID, the Secretary-General of ICSID; in the case of arbitration under UNCITRAL, the Secretary-General of the Permanent Court of Arbitration; or any person as agreed between the disputing parties;
(b) 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 or expanded thereafter, and which, where applicable, has been admitted by the former Party, subject to its relevant laws, regulations and policies;
(c) Disputing investor means an investor of a Party that makes a claim against the other Party under Section B;
(d) Disputing parties means a disputing investor and a disputing Party;
(e) Disputing Party means a Party against which a claim is made under Section B;
(f) Disputing party means a disputing investor or a disputing Party;
(g) Freely useable currency means a freely useable currency as determined by the International Monetary Fund under the Articles of Agreement of the International Monetary Fund and amendments thereafter, or any currency that is used to make international payments and is widely traded in the international principal exchange markets;
(h) Investment means every kind of asset owned or controlled, directly or indirectly, by an investor of a Party in the territory of the other Party, and in particular, though not exclusively, includes:
(i) shares, stocks or other forms of equity participation in an enterprise, and rights derived therefrom;
(ii) bonds, including Government issued bonds, debentures, loans and other forms of debt, and rights derived therefrom;
(iii) futures, options and other derivatives;
(iv) rights under contracts, including turnkey, construction, management, production or revenue-sharing contracts;
(v) claims to money or to any contractual performance related to a business and having a financial value;
(vi) intellectual property rights which are recognised pursuant to the laws and regulations of each Party and goodwill;
(vii) rights conferred pursuant to law or contract such as concessions, licences, authorisations, and permits; and
(viii) any other tangible and intangible, movable and immovable property, and any related property rights, such as leases, mortgages, liens and pledges; For the purposes of this definition, investment also includes 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. Such 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;
(i) Investor of a Party means –
(i) an enterprise of a Party; or
(ii) a natural person who is a national or a citizen or permanent resident of a Party; that has made, is in the process of making, or is seeking to make (5) an investment in the territory of the other Party;
(j) Measure adopted or maintained by a Party means any measure of a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, practice, or other form, adopted or maintained by:
(i) central, regional or local Governments or authorities; or
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local Governments or authorities; In fulfilling its obligations under this Chapter, each Party is obliged to take such reasonable measures as may be available to it to ensure their observance by regional and local Governments and authorities and non-governmental bodies within its territories;
(k) New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958; and
(l) Non-disputing Party means the Party of the disputing investor.
Article 10.2. Objectives
The objectives of this Chapter are to:
(a) encourage and promote the open flow of investment between the Parties on investment-related matters;
(b) to create a favourable environment for investors of the other Party and their investments; and
(c) provide for protection of investors of the other Party and their investments within each Party's territory.
Article 10.3. Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and
(b) covered investments.
2. This Chapter does not apply to measures adopted or maintained by a Party affecting trade in services.
3. Notwithstanding paragraph 2, the following Articles and Sections of this Chapter 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 Chapter 8 (Trade in Services), but only to the extent that they relate to a covered investment and an obligation under this Chapter, 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) subsidies or grants provided by a Party;
(b) government procurement; or
(c) services supplied in the exercise of governmental authority by the relevant body or authority of a Party. For the purposes of this Chapter, a 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.
5. For greater certainty, this Chapter does not apply to claims or disputes in relation to events which occurred, or any situation that ceased to exist, before the date of entry into force of this Agreement.
Article 10.4. National Treatment (6)
Each Party shall accord to investors of the other Party and to covered investments in relation to establishment, acquisition, expansion, management, conduct, operation, liquidation, sale, transfer, or other disposition of investments, treatment no less favourable than it accords, in like circumstances, to its own investors and their investments.