(c) other activities conducted by a public entity for the account of, with the guarantee of, or using the financial resources of, the government.
If a Party allows any of the activities referred to in points (b) or (c) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, "financial services" shall include such activities, which will then fall within the scope of this Chapter.
3. The general definition of "services supplied in the exercise of governmental authority" included in Article 10.1(6) of this Chapter shall not apply to services covered by this Sub-Section.
Article 10.40. Prudential Carve-out
1. Nothing in this Agreement shall be construed as preventing a Party from taking measures for prudential reasons, including:
(a) the protection of investors, depositors, financial market participants, policyholders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(b) ensuring the integrity and stability of a Party's financial system.
2. If such measures do not conform with the provisions of this Sub-Section, they shall not be used as a means of avoiding the Party's commitments or obligations under this Sub-Section.
3. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 10.41. Effective and Transparent Regulation In the Financial Services Sector
1. Each Party shall make its best endeavours to provide in advance to all interested persons any measure of general application that the Party proposes to adopt. Such a measure shall be provided:
(a) by means of an official publication; or
(b) in other written or electronic form.
2. Each Party's appropriate financial authority shall make available to interested persons its requirements for completing applications relating to the supply of financial services.
3. On the request of an applicant, the appropriate financial authority shall inform the applicant of the status of its application. If such authority requires additional information from the applicant, it shall notify the applicant without undue delay.
4. Each Party shall make its best endeavours to ensure that internationally agreed standards for regulation and supervision in the financial services sector and for the fight against tax evasion and avoidance are implemented and applied in its territory. Such internationally agreed standards include those adopted by the G20, the Financial Stability Board, the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors, the International Organisation of Securities Commissions, the Financial Action Task Force on Money Laundering the Global Forum on Transparency and Exchange of Information for Tax Purposes of the OECD and the International Financial Reporting Standards. To this end, the Parties shall cooperate and exchange information and experience on these matters.
Article 10.42. New Financial Services
1. Each Party shall permit a financial services supplier of the other Party, established in its territory, to provide in its territory any new financial services within the scope of the sub-sectors of financial services committed in Annexes 10-A, 10-B, 10-C and 10-E and subject to the terms, limitations, conditions and qualifications established therein.
2. A new financial service shall be provided in accordance with the laws and regulations of the Party in whose territory it is intended to be supplied and is subject to the approval, regulation and supervision of the competent authorities of that Party.
Article 10.43. Recognition of Prudential Measures
1. A Party may recognise prudential measures of the other Party in determining how the Party's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement or may be accorded autonomously.
2. A Party that is party to an agreement or arrangement with a third country such as those referred to in paragraph 1, whether future or existing, shall afford adequate opportunity for the other Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the Parties to the agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances exist.
Article 10.44. Self-regulatory Organisations
1. If a Party requires membership or participation in, or access to, any self-regulatory organisation, in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial service suppliers of the Party, or if a Party provides directly or indirectly to a self-regulatory organisation privileges or advantages in supplying financial services, that Party shall ensure that such self-regulatory organisations observe the application of Article 10.4 to financial service suppliers established in the territory of that Party.
2. For greater certainty, nothing in this Article prevents a self-regulatory organisation referred to in paragraph 1 from adopting its own non-discriminatory requirements or procedures. Insofar as such measures are taken by non-governmental bodies and are not taken in relation to the exercise of powers delegated by central, regional, or local governments or authorities, they are not considered to be measures of a Party and do not fall within the scope of this Chapter.
Article 10.45. Payment and Clearing Systems
On the basis of regulatory requirements and in accordance with Article 10.4, each Party shall grant to financial services suppliers of the other Party established in its territory access to payment and clearing facilities operated by public entities and to official funding and refinancing available in the normal course of ordinary business. This Article is not intended to confer access to a Party's lender‑of‑last‑resort facilities (the national central bank or any other monetary authority).
Subsection 6. E-COMMERCE
Article 10.46. Objective and Scope
1. The Parties, recognising that electronic commerce increases trade opportunities in many economic activities, agree to promote the development of electronic commerce between them, including by co-operating on the issues raised by electronic commerce under the provisions of this Sub-Section.
2. This Sub-Section applies to measures that affect trade by electronic means.
3. The Parties recognise the principle of technological neutrality in electronic commerce.
4. The provisions of this Sub-Section shall not apply to gambling services, broadcasting services, audio-visual services, services of notaries or equivalent professions and legal representation services.
Article 10.47. Definitions
For the purposes of this Sub-Section:
(a) "consumer " means any natural person, or juridical person if provided for in national laws and regulations of each Party, using or requesting a public telecommunications transport service, defined in point (e) of Article 10.27, for purposes outside their trade, business or profession;
(b) "direct marketing communication" means any form of advertising by which a person communicates marketing messages directly to end-users via a public telecommunications network and, for the purposes of this Agreement, covers at least electronic mail, text and multimedia messages (SMS and MMS);
(c) "electronic authentication service" means a service that enables the confirmation of:
(i) the electronic identification of a person; or
(ii) the origin and integrity of data in electronic form;
(d) "electronic signature" means data in electronic form which is attached to or logically associated with other electronic data and fulfils the following requirements:
(i) it is used by a natural person to agree on the electronic data to which it relates;
(ii) it is linked to the electronic data to which it relates in such a way that any subsequent alteration in the data is detectable; and
(iii) it is used by a juridical person to ensure the origin and integrity of the electronic data to which it relates; and
(e) "end-user" means any person using or requesting a publicly available telecommunications service, either as a consumer or for trade, business or professional purposes.
Article 10.48. Customs Duties on Electronic Transmissions
1. A Party shall not impose custom duties on electronic transmissions between a person of one Party and a person of the other Party.
2. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees, or other charges on electronic transmissions, provided that such taxes, fees, or charges are imposed in a manner consistent with this Agreement.
Article 10.49. Principle of No Prior Authorisation
1. The Parties shall endeavour not to require prior authorisation of the supply of a service by electronic means solely on the ground that the service is provided by electronic means or to adopt or maintain any other requirement having equivalent effect.
2. Paragraph 1 does not apply to telecommunications services as defined in point (i) of Article 10.27 and financial services as defined in point (a) of Article 10.39(1).
3. For greater certainty, nothing shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 to achieve a legitimate public policy objective in accordance with:
(a) Article 10.1(4);
(b) Article 10.40;
(c) Article 20.1; and
(d) Article 20.2.
Article 10.50. Conclusion of Contracts by Electronic Means
Each Party shall ensure that their legal system allows contracts to be concluded by electronic means and that its laws and regulations regarding contractual processes neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effect and validity on the ground that they have been made by electronic means, unless provided for in their laws and regulations (1).
Article 10.51. Electronic Signature and Authentication Services
1. A Party shall not deny the legal effect and admissibility as evidence in legal proceedings of an electronic signature and electronic authentication service solely on the basis that it is in electronic form.
2. A Party shall not adopt or maintain measures regulating electronic signature and electronic authentication services that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic methods for their transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to prove to judicial and administrative authorities that their electronic transaction complies with any legal requirements with respect to electronic signature and electronic authentication services.
Article 10.52. Unsolicited Direct Marketing Communications
1. Each Party shall endeavour to effectively protect end-users against unsolicited direct marketing communications.
2. Each Party shall endeavour to ensure that persons do not send direct marketing communications to consumers who have not given their consent (1) to receive such communications.
3. Notwithstanding paragraph 2, each Party shall allow persons which have collected, in accordance with its laws and regulations, a consumer's contact details in the context of the sale of a product or a service, to send direct marketing communications to that consumer for their own similar products or services.
4. Each Party shall endeavour to ensure that direct marketing communications are clearly identifiable as such, clearly disclose on whose behalf they are made and contain the necessary information to enable end-users to request cessation free of charge and at any moment.
Article 10.53. Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers, including from fraudulent and misleading commercial practices, when they engage in electronic commerce transactions.
2. For the purposes of paragraph 1, the Parties shall adopt or maintain measures that contribute to consumer trust, including measures that proscribe fraudulent and deceptive commercial practices. Such measures shall provide for, among others:
(a) the right of consumers to clear and thorough information regarding the service and its provider;
(b) the obligation of traders to act in good faith and abide by honest market practices, including in response to questions by consumers;
(c) the prohibition of charging consumers for services not requested or for a period in time not authorised by the consumer; and
(d) access to redress for consumers to claim their rights, including as regards their right to remedies for services paid and not provided as agreed.
3. The Parties recognise the importance of cooperation between their respective agencies in charge of consumer protection or other relevant bodies on activities related to electronic commerce, in order to protect consumers and enhance consumer trust.
Article 10.54. Regulatory Cooperation on E-commerce
1. The Parties shall maintain cooperation and dialogue on the regulatory issues raised by electronic commerce on the basis of mutually agreed terms and conditions, which shall address the following issues, among others:
(a) the recognition and facilitation of interoperable cross-border electronic signature and authentication services;
(b) the liability of intermediary service providers with respect to the transmission or storage of information;
(c) the treatment of direct marketing communications;
(d) the protection of consumers in the ambit of electronic commerce;
(e) the promotion of paperless trading; and
(f) any other issue relevant to the development of electronic commerce.
2. The cooperation referred to in paragraph 1 shall focus on exchange of information on the Parties' respective laws and regulations on these issues as well as on the implementation of such laws and regulations.
Article 10.55. Understanding on Computer Services
1. The Parties agree that, for the purposes of liberalising trade in services in accordance with Articles 10.3 and 10.4, the following shall be considered as computer and related services, regardless of whether they are delivered via a network, including the Internet:
(a) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance, or management of or for computers or computer systems;
(b) computer programmes defined as the sets of instructions required to make computers work and communicate (in and of themselves), plus consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for computer programmes;
(c) data processing, data storage, data hosting or database services;
(d) maintenance and repair services for office machinery and equipment, including computers; and
(e) training services for staff of clients, related to computer programmes, computers or computer systems, and not elsewhere classified.
2. For greater certainty, services enabled by computer and related services shall not necessarily be regarded as computer and related services in themselves.
Section D. FINAL PROVISIONS AND EXCEPTIONS
Article 10.56. Contact Points
1. No later than one 1 (one) year after the date of entry into force of the Agreement, each Party shall designate contact points and notify the other Party of their contact details with a view to:
(a) facilitate the provision of information to the other Party regarding the implementation of this Chapter, such as:
(i) commercial and technical aspects of the supply of services; and
(ii) the registration, recognition and obtaining of professional qualifications; and
(b) consider any other issues regarding the implementation of this Chapter that are referred by a Party.
2. Each Party shall promptly notify the other Party of any changes to these contact points.
Article 10.57. Subcommittee on Trade In Services and Establishment
1. The Subcommittee on trade in services and establishment, established pursuant to Article 22.3(4), shall have the following functions, in addition to those listed in Article 22.3:
a) conduct the preparatory technical work in the event of a revision of this Chapter in accordance with Article 10.58; and
b) discuss relevant subjects for trade in services and establishment, including opportunities for the expansion of mutual investment in services and non-services sectors.
2. The Subcommittee may invite, on an ad hoc basis, representatives of relevant entities, with the necessary expertise relevant to the issues to be addressed.
Article 10.58. Review Clause
In light of its objectives, this Chapter may be reviewed no earlier than 3 (three) years after the date of entry into force of this Agreement, or in the context of an overall review of this Agreement.
Article 10.59. Denial of Benefits
A Party may deny the benefits of this Chapter to:
(a) the supply of a service, if it establishes that the service is supplied from or in the territory of a third country; or
(b) a juridical person, if it establishes that it is a juridical person of a third country.
Chapter 11. TRANSFERS OR PAYMENTS FOR CURRENT ACCOUNT TRANSACTIONS,CAPITAL MOVEMENTS AND TEMPORARY SAFEGUARD MEASURES
Article 11.1. Capital Account
With regard to transactions on the capital and financial account of the balance of payments, each Party shall allow the free movement of capital for the purposes of establishment of direct investments as provided for in Chapter 10. Such movements shall include the liquidation or repatriation of such capital.
Article 11.2. Current Account
Each Party shall allow, in a freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund adopted at the United Nations Monetary and Financial Conference, in Bretton Woods, New Hampshire, on 22 July 1944 (hereinafter referred to as "Agreement of the International Monetary Fund"), any payments and transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 11.3. Application of Laws and Regulations Relating to Transfers or Paymentsfor Current Account Transactions and Capital Movements
Nothing in Articles 11.1 and 11.2 shall be construed as preventing a Party from applying in an equitable and non-discriminatory manner, and in a way that would not constitute a disguised restriction on transfers or payments for current account transactions or on capital movements its laws and regulations relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities;
(c) criminal or penal offences (1);
(d) financial reporting or record keeping of transfers if necessary to assist law enforcement or financial regulatory authorities; or
(e) the satisfaction of judgments in adjudicatory proceedings.
Article 11.4. Temporary Safeguard Measures
If, in exceptional circumstances, transfers or payments for current account transactions or capital movements cause or threaten to cause serious difficulties for the operation of the Economic and Monetary Union of the European Union, the European Union may adopt safeguard measures that are strictly necessary to address those difficulties or the threat thereof for a period not exceeding 6 (six) months.
Article 11.5. Restrictions to Safeguard the Balance of Payments
1. If, in exceptional circumstances, a Party experiences serious balance-of-payments difficulties including with regard to the operation of monetary policy or exchange rate policy, or external financial difficulties or the threat thereof, it may adopt or maintain restrictive measures with regard to transfers or payments for current account transactions or capital movements.
2. The measures referred to in paragraph 1 shall:
(a) be non-discriminatory compared to those applied to a third country in like situations;
(b) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(c) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and
(d) be temporary, proportional and strictly necessary to address the difficulties and be phased out progressively as the situation referred to in paragraph 1 improves. If extremely exceptional circumstances arise such that a Party seeks to extend those measures beyond a period of 1 (one) year, it shall notify the other Party that it will introduce such an extension.
Article 11.6. Final Provisions
1. Nothing in this Chapter shall be construed as limiting the rights of economic operators of the Parties to benefit from any more favourable treatment that may be provided for in any existing bilateral or multilateral agreement to which a Party is party.
2. The Parties shall consult each other with a view to facilitating the movement of capital falling within the scope of this Agreement between them in order to promote the objectives of this Agreement.
CHAPTER 12
GOVERNMENT PROCUREMENT
ARTICLE 12.1
Objectives
The Parties recognise the contribution of transparent, competitive and open tendering to economic development and set as their objective the effective opening of their respective procurement markets.
ARTICLE 12.2
Definitions
For the purposes of this Chapter, the following definitions apply:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) "construction service" means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the CPC;
(c) "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;