Article 3. Shariah-compliant Financial Services
The Parties recognise that a Shariah-compliant financial service compatible with the definition in subparagraph (b) of Article 2 (Definitions) is a financial service, including for the purposes of Article 4 (New Financial Services). Accordingly, each Party will consider applications by financial institutions of the other Party to supply such services in its territory on an equal basis as any other application to supply financial services, consistent with its laws and regulations, including any regulatory or supervisory requirements, and in accordance with its commitments and obligations under this Annex.
Article 4. New Financial Services
1. Each Party shall permit a financial institution of the other Party established in its territory to supply any new financial services similar to those services that a Party would permit its own financial institutions, in like circumstances, to supply under its laws and regulations.
2. A Party may however determine the institutional and juridical form through which the new financial service may be supplied and may require authorisation for the supply of the service. Where the authorisation to supply new financial services is required, a decision shall be made within a reasonable time, and the authorisation may only be refused for prudential reasons.
3. Further to paragraph 1, a financial institution of a Party may apply to the other Party to consider authorising the supply of a financial service that is not supplied in either Party's territory. Such application shall be subject to the law of the Party to which the application is made.
Article 5. Prudential and Regulatory Supervision
1. Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier or financial institution, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party's commitments or obligations under this Agreement.
2. These measures shall not constitute a means of arbitrary or unjustifiable discrimination against financial service suppliers or financial institutions of the other Party in comparison to its own like financial service suppliers or financial institutions, or a disguised restriction on trade in services.
3. Nothing in this Agreement shall be construed to require 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 6. Recognition
1. A Party may recognise prudential measures of any international standard setting body or a non-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 with the international standard setting body or a non-Party concerned or may be accorded autonomously.
2. A Party that is a party to such an agreement or arrangement referred to in paragraph 1, whether future or existing, shall afford adequate opportunity to 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.
3. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances as referred to in paragraph 2 exist.
Article 7. Financial Services Exceptions
Nothing in this Annex shall be construed to prevent the adoption or enforcement by a Party of measures necessary to secure compliance with laws and regulations that are not inconsistent with Chapter 8 (Trade in Services) or this Annex, including those relating to the prevention of deceptive and fraudulent practices or to deal with the effects of a default on financial services contracts, subject always to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on investment in financial institutions or trade in financial services.
Article 8. Regulatory Transparency
1. Each Party shall take such reasonable measures as may be available to it to ensure that the rules of general application adopted or maintained by self-regulatory organisations of the Party are promptly published or otherwise made publicly available.
2. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons (11) of the other Party regarding measures of general application to which this Annex shall apply.
3. Each Party shall endeavour to:
(a) publish in advance any measures of general application relating to the subject matter of this Annex that it proposes to adopt and the purpose of the measure;
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures; and
(c) allow reasonable time between publication of such final measures and their effective date.
4. At the time it adopts final measures, a Party shall endeavour to address in writing substantive comments received from interested persons with respect to the proposed measures.
5. Each Party's regulatory authorities shall endeavour to make publicly available all of their requirements, including any documentation required, for completing applications relating to the supply of financial services.
6. On the request of an applicant in writing, a Party's regulatory authority shall inform the applicant of the status of its application in writing. If such authority requires additional information from the applicant, it shall notify the applicant without undue delay.
7. Each Party's regulatory authority shall make administrative decisions on a completed application of a financial institution of the other Party seeking to supply a financial service in that Party's territory within 120 days, and shall notify the applicant of the decision in writing without undue delay:
(a) an application shall not be considered complete until all relevant proceedings are conducted and the regulatory authorities consider all necessary information is received; and
(b) where it is not practicable for a decision to be made within 120 days, the regulatory authority shall notify the applicant without delay and shall endeavour to make the decision within a reasonable time thereafter.
8. On the request in writing of an unsuccessful applicant a regulatory authority that has denied an application shall endeavour to inform the applicant of the reasons for denial of the application in writing.
Article 9. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant to financial institutions of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and re-financing facilities available in the normal course of ordinary business. This Article is not intended to confer access to the Party's lender of last resort facilities.
Article 10. Dispute Settlement
Arbitral tribunals agreed between or appointed by the Parties under Chapter 20 (Consultations and Dispute Settlement) to adjudicate disputes on prudential issues and other financial matters, and any procedures agreed for good offices, conciliation or mediation on such matters, shall have or provide for the necessary expertise relevant to the specific financial service under dispute.
Chapter 9. Telecommunications Services
Article 9.1. Objective
The objective of this Chapter is to make additional commitments that will further liberalise and promote competition in the telecommunications markets of the Parties. These commitments are consistent with and build on the GATS Annex on Telecommunications and the WTO Telecommunications Reference Paper. To this end each Party commits to:
(a) ensure that anti-competitive conduct does not hinder new entrants to the telecommunications market;
(b) the provision of access to critical parts (as provided for in this Chapter) of telecommunications networks within its territory to suppliers of telecommunications networks or services of the other Party; and
(c) ensure that regulatory decisions are clear, timely and transparent.
Article 9.2. Scope
1. This Chapter shall apply to measures affecting trade in telecommunications services.
2. This Chapter shall not apply to measures by a Party affecting the distribution of broadcasting and audio-visual services, as defined in each Party's laws and regulations.
3. Nothing in this Chapter shall be construed as:
(a) requiring a Party to compel any juridical person to establish, construct, acquire, lease, operate, or provide telecommunications networks or services not offered to the public generally; or
(b) requiring a Party to compel any juridical person exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network.
Article 9.3. Definitions
For the purposes of this Chapter, the following definitions shall apply:
(a) cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
(b) dialling parity means the ability of an end user to use an equal number of digits to access a like public telecommunications service, regardless of the public telecommunications service supplier chosen by such end user and in a way that involves no unreasonable dialling delays;
(c) end user means a final consumer of or subscriber to public telecommunications networks or services, including a service supplier other than a supplier of public telecommunications services;
(d) essential facilities means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(e) interconnection means linking with suppliers providing public telecommunications networks or services in order to allow the users of one supplier to communicate with the users of another supplier and to access services provided by another supplier;
(f) leased circuit means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a particular customer or other users;
(g) major supplier means a supplier which has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market (12) for public telecommunications services as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
(h) network elements means facilities or equipment used in the provision of a public telecommunications service, including features, functions, and capabilities that are provided by means of such facilities or equipment, which may include local loops, sub-loops and line-sharing;
(i) non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
(j) number portability means the ability) of end users of public telecommunications networks or services to retain existing telephone numbers when switching between suppliers of like public telecommunications networks or services;
(k) physical co-location means physical access to space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a major supplier to supply public telecommunications services;
(l) public telecommunications network means the telecommunications infrastructure which is used to provide public telecommunications services;
(m) public telecommunications service means any telecommunications service that is offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information;
(n) regulatory decisions means decisions by regulators made pursuant to authority conferred under domestic law in relation to:
(i) the making of rules for the telecommunications industry excluding legislation and statutory rules;
(ii) the approval of terms and conditions, standards and codes to apply in the telecommunications industry;
(iii) the adjudication or other resolution of disputes between suppliers of public telecommunications networks or services; and
(iv) licensing;
(o) service supplier means a natural person or a juridical person that supplies a service and includes a supplier of public telecommunications services;
(p) telecommunications means the transmission and reception of signals by any electromagnetic or photonic means;
(q) telecommunications regulatory body means a central government body or bodies responsible for the regulation of telecommunications networks or services. For greater certainty, Ministers or the Cabinet of a Party are not such a body; and
(r) user means an end user or a supplier of public telecommunications networks or services.
Section A. Access to and Use of Public Telecommunications Networks or Services
Article 9.4. Access and Use
1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications network or service offered in its territory or across its borders in a timely fashion, on transparent, reasonable and non- discriminatory terms and conditions, including as set out in paragraphs 3 to 6.
2. Any new or amended measures of a Party that significantly affect such access or use shall be made publicly available, and service suppliers of the other Party whose interests are adversely affected by such measures shall be provided with an opportunity to comment.
3. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network and which is necessary to supply a supplier's service;
(b) provide services to individual or multiple end users over leased or owned circuits;
(c) interconnect owned or leased circuits with public telecommunications networks or services in the territory, or across the borders, of that Party or with circuits leased or owned by another service supplier;
(d) perform switching, signalling, processing, and conversion functions; and
(e) use operating protocols of their choice in the supply of any services, other than as necessary to ensure the availability of telecommunications networks and services to the public generally.
4. Each Party shall ensure that service suppliers of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders and for access to information to which the service supplier is legally entitled contained in databases or otherwise stored in machine-readable form in the territory of either Party or any non-Party which is a party to the WTO Agreement.
5. Notwithstanding paragraph 4, a Party may take such measures as are necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of personal data of end users of public telecommunications networks or services,
provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
6. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
Section B. Obligations Relating to Suppliers of Public Telecommunications Networks or Services
Article 9.5. Interconnection
1. Each Party shall ensure that suppliers of public telecommunications networks or services in its territory provide, directly or indirectly, interconnection with suppliers of public telecommunications networks or services of the other Party.
2. In carrying out its obligations under paragraph 1, each Party shall ensure that suppliers of public telecommunications networks or services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end users of public telecommunications networks or services obtained as a result of interconnection arrangements and only use such information for the purpose of providing those services.
Article 9.6. Number Portability
Each Party shall adopt or maintain measures to ensure that suppliers of public telecommunications networks or services in its territory provide number portability on a timely basis, and on reasonable terms and conditions for mobile services and any other services as designated by that Party.
Article 9.7. Dialling Parity
Each Party shall ensure that:
(a) its telecommunications regulatory body has the authority to require that suppliers of public telecommunications networks or services in its territory provide dialling parity within the same category of services to suppliers of public telecommunications networks or services of the other Party ; and
(b) suppliers of public telecommunications networks or services of the other Party are afforded non-discriminatory access to telephone numbers.
Article 9.8. Submarine Cable Systems
Where a Party authorises a supplier of public telecommunications networks or services to operate a submarine cable system as a public telecommunications service, it shall ensure that such supplier accords the suppliers of public telecommunications networks or services of the other Party reasonable and non- discriminatory treatment with respect to access to submarine cable systems (including landing facilities) in its territory.
Article 9.9. General Competitive Safeguards
1. Each Party shall maintain appropriate measures, including the effective enforcement of such measures, for the purpose of preventing service suppliers from engaging in or continuing anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 shall mean business conduct or transactions that adversely affect competition, including:
(a) anti-competitive horizontal arrangements between competitors;
(b) abuse of dominant position; and (c) anti-competitive vertical arrangements.
Section C. Additional Obligations Relating to Major Suppliers of Public Telecommunications Networks or Services
Article 9.10. Treatment by Major Suppliers
Each Party shall ensure that major suppliers in its territory accord suppliers of public telecommunications networks or services of the other Party treatment no less favourable than such major supplier accords in like circumstances to its subsidiaries, its affiliates, or any non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 9.11. Competitive Safeguards
1. Each Party shall maintain appropriate measures, including the effective enforcement of such measures, for the purpose of preventing suppliers that, alone or together, are a major supplier in its territory from engaging in or continuing anti- competitive practices.
2. The anti-competitive practices referred to in paragraph 1 include:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available, on a timely basis, to suppliers of public telecommunications networks or services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.
Article 9.12. Resale
1. Each Party shall ensure that major suppliers in its territory:
(a) offer for resale, at reasonable rates, to suppliers of public telecommunications services of the other Party, public telecommunications services that such major supplier provides at retail to end users that are not suppliers of public telecommunications services; and
(b) do not impose unreasonable or discriminatory conditions or limitations on the resale of such services (13).
2. Each Party may determine in accordance with its laws and regulations which public telecommunications services must be offered for resale by major suppliers in accordance with paragraph 1, based on the need to promote competition or such other factors as the Party considers relevant.
Article 9.13. Unbundling of Network Elements
Each Party shall provide its telecommunications regulatory body with the authority to require that major suppliers in its territory provide suppliers of public telecommunications networks or services of the other Party access to network elements for the provision of public telecommunications networks or services on an unbundled basis, in a timely fashion, on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
Article 9.14. Interconnection with Major Suppliers
1. Each Party shall ensure that major suppliers in its territory provide interconnection for the facilities and equipment of suppliers of public telecommunications networks or services of the other Party:
(a) at any technically feasible point in the major supplier's network;
(b) of a quality no less favourable than that provided by such major suppliers for their own like services, for like services of non-affiliated service suppliers, or for their subsidiaries or other affiliates;
(c) in a timely fashion, on terms and conditions (including technical standards and specifications), and at cost-oriented rates, that are transparent, reasonable and non-discriminatory, having regard to economic feasibility, and sufficiently unbundled so that the suppliers need not pay for network components or facilities that they do not require for the service to be provided; and
(d) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that suppliers of public telecommunications networks or services of the other Party may interconnect their facilities and equipment with those of major suppliers in its territory pursuant to at least one of the following options:
(a) a Reference Interconnection Offer or other Standard Interconnection Offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services;
(b) terms and conditions of an existing interconnection agreement;
(c) through negotiation of a new interconnection agreement; or
(d) binding arbitration.
3. Each Party shall ensure that the applicable procedures for interconnection negotiations with major suppliers in its territory are made publicly available.
4. With respect to any major supplier in its territory each Party shall ensure that:
(a) a Reference Interconnection Offer or other Standard Interconnection Offer; or
(b) the terms of the major supplier's interconnection agreement; are published or otherwise made publicly available (14).
Article 9.15. Provisioning and Pricing of Leased Circuit Services
1. Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications networks or services of the other Party leased circuit services that are public telecommunications services in a timely fashion, on terms and conditions, and at rates, that are reasonable, non-discriminatory and transparent.
2. In carrying out its obligations under paragraph 1, each Party shall provide its telecommunications regulatory body the authority to require major suppliers in its territory to offer such leased circuit services that are public telecommunications services to suppliers of public telecommunications networks or services of the other Party at capacity-based, cost-oriented prices.