4. The Parties' Schedules of Specific Commitments are set forth in Annexes 9A (UAE Schedule of Specific Commitments) and 9B (Kenya Schedule of Specific Commitments).
Article 9.6. Most-Favoured Nation Treatment
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 consider a request by other Party for incorporation herein of treatment no less favourable than that provided under the aforementioned agreement. Any such incorporation should maintain the overall balance of commitments undertaken by each Party under this Agreement.
Article 9.7. Market Access
1. With respect to market access through the modes of supply identified in the definition of "trade in services" contained in Article 9 .1, 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 of Specific Commitments. (4)
2. In sectors where market access commitments are undertaken, the measures wbjcb a Party shaU 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 of Specific 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; (5)
(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 9.8. National Treatment
1. With respect to the services sectors inscribed in its Schedule of Specific 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. (6)
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 by a Party shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 9.9. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 9.7 and 9.8, including those regarding qualification, standards or licensing matters. Such commitments shall be inscribed in that Party's Schedule of Specific Commitments.
Article 9.10. Modification of Schedules
Upon written request by a Party, the Parties shall 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 of the requesting Party making its request. lo 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 any procedures adopted by the Joint Committee established in Article 14.1 (Joint Committee).
Article 9.11. Domestic Regulation
1. Each Party may regulate and introduce new regulations on services and services suppliers within its territory in order to meet national policy objectives, in so far as such regulations do not impair any rights and obligations arising from this Agreement.
2. 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.
3. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, on request of an affected service supplier, 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 concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provision of subparagraph (a) 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 under this Agreement has been made, the competent authorities of each Party shall:
(a) 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;
(b) in the case of an incomplete application, on 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;
(c) on request of the applicant, provide without undue delay information concerning the status of the application; and
(d) if an application is terminated or denied, to the extent possible, inform the applicant in writing and without delay the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
5. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, in sectors where specific commitments are undertaken, the Parties shall aim to ensure that such requirements are:
(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; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
6. In determining whether a Party is in conformity with the obligation under paragraph 5, account shall be taken of international standards of relevant international organisations applied by that Party.
7. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party.
8. The Parties shall jointly review the results of the negotiations on disciplines on domestic regulation, pursuant to Article VI:4 of the GATS, with a view to incorporating them into this Chapter.
Article 9.12. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to paragraph 3, a Party may recognise, or encourage its relevant competent bodies to recognise, the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or their relevant competent bodies, or may be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-party, that Party shall afford the other Party adequate opportunity to negotiate comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education, experience, licences or certifications obtained or requirements met in that other Party's territory should also be recognised.
3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-parties in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
4. The Parties agree to encourage, where possible, the relevant bodies in their respective territories responsible for issuance and recognition of professional and vocational qualifications to:
(a) strengthen cooperation and to explore possibilities for mutual recognition of respective professional and vocational qualifications; and
(b) pursue mutually acceptable standards and criteria for licensing and certification with respect to service sectors of mutual importance to the Parties.
Article 9.13. Payments and Transfers
1. Except under the circumstances envisaged in Article 9.16, 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 Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 9.16 or at the request of the International Monetary Fund.
Article 9.14. 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 9.15. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under monopolies and exclusive service suppliers, may restrain competition and thereby restrict trade in services.
2. Each Party shall, upon 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 law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 9.16. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. Where either of the Parties to this Agreement is in serious balance of payments difficulties, or under threat thereof, it may adopt or maintain restrictive measures with regard to trade in services, including on payments and transfers.
3. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GA TS, which are hereby incorporated into and made part of this Agreement. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 9.17. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier that is a juridical person, if persons of a non-Party own or control that juridical person and the denying Party:
(a) does not maintain diplomatic relations with the non-Party and that non-Party is not a Member of the WTO; or
(b) adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments.
2. In the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(a) by a vessel registered under the laws of a non-Party, and
(b) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party.
3. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to services and service suppliers of the other Party where the service is being supplied by a juridical person of a non-party, or a person of the other Party without real and continuous links with the economy of the other Party or with negligible or no business operations in the territory of the other Party.
Article 9.18. Monitoring and Evaluation
1. The Joint Committee in accordance with Article 14 (Joint Committee) shall establish the Subcommittee on Trade in Services, which shall carry out such functions as may be assigned to it by the Joint Committee to facilitate the operation of this chapter and further its objectives, including considering additional Annexes that may be proposed by the Parties.
2. The Subcommittee on Trade in Services shall meet regularly to monitor and evaluate the implementation of this chapter.
3. With the objective of further liberalising trade in services between them, the Parties agree to jointly review, their Schedules of Specific Commitments, taking into account any services liberalisation developments as a result of on-going work under the auspices of the WTO. A
Article 9.19. Annexes
The following Annexes form an integral part of this Chapter:
- Annex 9A -UAE Schedule of Specific Commitments
- Annex 9B -Kenya Schedule of Specific Commitments
Chapter 10. DIGITAL TRADE
Article 10.1. Definitions
For the purposes of this Chapter:
authentication means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;
customs duty includes any duty or charge of any kind imposed on or in connection with the importation of a good, and any surtax or surcharge imposed in connection with such importation, but does not include any:
(a) charge equivalent to an internal tax imposed consistently with paragraph 2 of Article ID of the GA TT 1994;
(b) fee or other charge in connection with the importation commensurate with the cost of services rendered; or
(c) antidumping or countervailing duty; digital product means a computer programme, text, video, image, sound recording or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically; (1)(2)
digital or electronic signature means data in digital or electronic form that is in, affixed to, or logically or cryptographically associated with, a digital or electronic document, and that may be used to identify or verify the signatory in relation to the digitaJ or electronic document and indicate the signatory's approval of the information contained in the digital or electronic document;
electronic transmission or transmitted electronically means a transmission made using any electromagnetic means, including by photonic means;
open data means non-proprietary information, including data, made freely available to the public by the central level of government;
personal data means any information, including data, about an identified or identifiable natural person;
trade administration documents means forms issued or controlled by a Party that must be completed by or for an importer or exporter in connection with the import or export of goods; and
unsolicited commercial electronic message means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient, through an Internet access service supplier or, to the extent provided for under the laws and regulations of each Party, other telecommunications service. ?
Article 10.2. Objectives
The objectives of this Chapter are to:
(a) foster an environment conducive to the further advancement of digital trade, including electronic commerce and the digital transformation of the global economy;
(b) facilitate, strengthen, expand and diversify Information Communication Technology and digital trade within the framework of this Agreement subject to the laws, regulations, and rules enforced in each Party;
(c) encourage trusted, safe, ethical and responsible adoption and use of emerging technologies to support and promote digital trade; and
(d) promote and facilitate digital trade between the Parties by, inter alia, reducing barriers to digital trade.
Article 10.3. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party that affect trade by electronic means.
2. This Chapter shall not apply to:
(a) government procurement; or
(b) information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.
3. For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the relevant provisions of Chapter 9 (Trade in Services) and its Annexes, including any exceptions or limitations set out in this Agreement that are applicable to such provisions.
Article 10.4. Customs Duties
1. Each Party shall maintain its current practice of not imposing customs duties on digital or electronic transmissions, between a person of a Party and a person of the other Party in accordance with the WTO Ministerial Decision in relation to Electronic Commerce
2. The moratorium under paragraph 1 shall depend on further outcomes in the WTO Ministerial Decisions on customs duties on electronic transmission within the framework of the Work Programme on Electronic Commerce.
3. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees or other charges on content transmitted digitally or electronically, provided that such taxes, fees, or charges are imposed in a manner consistent with this Agreement.
Article 10.5. Non-Discriminatory Treatment of Digital Products
1. A Party shall not accord less favourable treatment to certain digital products than it accords to other like iligital products:
(a) on the basis that
(i) the digital products receiving less favourable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party; or
(b) so as otherwise to afford protection to the other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in its territory.
2. A Party shall not accord less favourable treatment to digital products:
(a) created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party than it accords to like digital products created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, or distributor of such digital products is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor of such digital products is a person of a non-Party.
3. Paragraphs 1 and 2 of this Article are subject to relevant exceptions, limitations or reservations set out in this Agreement or its Annexes, if any.
4. This Article does not apply to measures affecting the electronic transmission of a series of text, video, images, sound recordings, and other products scheduled by a content provider for aural and/or visual reception, and for which the content consumer has no choice over the scheduling of the series.
Article 10.6. Domestic Electronic Transactions Framework
1. Each Party shall endeavour to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce (1996) ("UNCITRAL Model Law").
2. Each Party shall endeavour to: (a) avoid any unnecessary regulatory burden on electronic transactions; and (b) facilitate input by interested persons in the development and review of its legal framework for electronic transactions, including in relation to trade documentation.
Article 10.7. Authentication
1. Except in circumstances otherwise provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in digital or electronic form.
2. Neither Party shall adopt or maintain measures regarding authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with any legal requirements with respect to authentication.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the method of authentication meets certain performance standards or is certified by an authority accredited in accordance with its law.
4. The Parties shall encourage the use of interoperable means of authentication.
Article 10.8. Paperless Trading
Each Party shall endeavour to:
(a) make trade administration documents available to the public in digital or electronic form; and
(b) accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 10.9. Online Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers from misleading, deceptive, and fraudulent commercial practices when they engage in digital trade.
2. Each Party shall endeavour to adopt or maintain consumer protection laws to proscribe misleading, deceptive, and fraudulent commercial activities that cause harm or potential harm to consumers engaged in digital trade. (3)
Article 10.10. Personal Data Protection
1. The Parties recognise the economic and social benefits of protecting the personal data of persons who conduct or engage in electronic transactions and the contribution that this makes to enhancing consumer confidence in digital trade.
2. To this end, each Party shall endeavour to adopt or maintain a legal framework that provides for the protection of the personal data of the users of digital trade. (4) In the development of any legal framework for the protection of personal data, each Party should endeavour to take into account principles and guidelines of relevant international organisations. To this end, each Party shall endeavour to adopt or maintain a legal framework that provides for safeguards to ensure the protection of the personal data of the users of digital trade. Nothing in this Agreement shall affect the protection of personal data and privacy afforded by the Parties' respective safeguards.
3. The Parties shall endeavour to develop collaboration mechanisms and frameworks for cross-border complaints resolution, investigations, enforcement on personal data protection for digital trade.
Article 10.11. Principles on Access to and Use of the Internet for Digital Trade
To support the development and growth of digital trade, each Party recognizes that consumers in its territory should be able to:
(a) access and use services and applications of their choice, unless prohibited by the Party's law;
(b) run services and applications of their choice, subject to the Party's law, including the needs of legal and regulatory enforcement activities; and
(c) connect their choice of devices to the Internet, provided that such devices do not harm the network and are not otherwise prohibited by the Party's law.
Article 10.12. Cross-Border Flow of Information
1. Recognizing the importance of the free flow of information in facilitating trade, and acknowledging the importance of protecting personal data, the Parties shall endeavour to refrain from imposing or maintaining unjustifiable barriers to electronic information flows across borders.
2. For greater certainty, either Party may adopt or maintain measures inconsistent with paragraph I to achieve a legitimate public policy objective or protect security interests, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on digital trade.