Chapter ELEVEN. Temporary Entry for Business Persons
Article 11.1. General Principles
1. Further to Article 11.2, this Chapter reflects the preferential trading relationship between the Parties, the mutual objective to facilitate temporary entry for business persons on a reciprocal basis and in accordance with Annex 11A, and the need to establish transparent criteria and procedures for temporary entry, to ensure border security, and to protect the domestic labor force and permanent employment in their respective territories.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of the other Party, (1) nor shall it apply to measures regarding nationality, citizenship, residence, or employment on a permanent basis.
Article 11.2. General Obligations
1. Each Party shall apply its measures related to this Chapter in accordance with Article 11.1 and, in particular, shall expeditiously apply those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. Nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of natural persons 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 unduly impair or delay trade in goods or services or conduct of investment activities under this Agreement. The sole fact of requiring a visa for natural persons shall not be regarded as unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
Article 11.3. Relation to other Chapters
1. Nothing in this Agreement, including provisions provided for in Chapter Ten (Cross- Border Trade in Services), shall be construed to impose any obligation on a Party regarding its immigration measures, except as specifically identified in this Chapter, Chapters One (Initial Provisions and Definitions), Twenty-One (Transparency), Twenty-Two (Administration of the Agreement), Twenty-Three (Dispute Settlement), Twenty-Four (Exceptions), and Twenty-Five (Final Provisions).
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Article 11.4. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who comply with immigration measures applicable to temporary entry such as those related to public health, safety, and national security, in accordance with this Chapter, including Annex 11A and Appendix 11A-3.
2. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might adversely affect:
(a) the settlement of any labor dispute that is in progress at the place or intended place of employment; or
(b) the employment of any person who is involved in such dispute.
3. Where a Party, in accordance with paragraph 2, refuses to issue an immigration document authorizing employment, it shall inform in writing the business person of the reasons for the refusal.
4. Each Party shall limit any fees for processing applications for temporary entry of business persons so as not to unduly impair or delay trade in goods or services or the conduct of investment activities under this Agreement and not to exceed the administrative costs normally rendered.
Article 11.5. Provision of Information
1. Further to Article 21.1 (Publication), and recognizing the importance to the Parties of transparency of temporary entry information, each Party shall:
(a) provide the other Party with relevant materials that will enable the other Party to become acquainted with its measures related to this Chapter; and
(b) no later than six months after the date of entry into force of this Agreement, prepare, publish, and make available in its own territory, and in the territory of the other Party, explanatory material regarding the requirements for temporary entry under this Chapter, including references to applicable laws and regulations, in such a manner that will enable business persons of the other Party to become acquainted with them.
2. Each Party shall collect and maintain, and, upon request, make available to the other Party in accordance with its laws, data regarding the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation, including data specific to each occupation, profession, or activity.
Article 11.6. Working Group
1. The Parties hereby establish a Working Group on Temporary Entry for Business Persons comprising representatives of each Party, which include immigration officials.
2. The Working Group shall meet, when necessary, to consider matters arising under this Chapter, such as:
(a) the implementation and administration of this Chapter;
(b) the development and adoption of common criteria and interpretation for the implementation of the Chapter;
(c) the development and implementation of measures to further facilitate temporary entry of business persons on a reciprocal basis; and
(d) any measures of mutual interest.
Article 11.7. Dispute Settlement
1. A Party shall not initiate proceedings under Chapter Twenty-Three (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted the available administrative remedies regarding the particular matter.
2. The remedies referred to in paragraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within six months of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 11.8. Transparency In Processing of Applications
1. Further to Article 21.1 (Publication), each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons regarding applications and procedures related to the temporary entry of business persons.
2. Upon request of the applicant, the Party shall endeavor to provide, without undue delay, information on the status of the application or the decision about the application.
Article 11.9. Definitions
For purposes of this Chapter:
business person means a national of a Party who is engaged in trade in goods, the supply of services, or the conduct of investment activities;
contractual service supplier means a business person of a Party who:
(a) possesses appropriate educational and other qualifications relevant to the service to be provided;
(b) is engaged in the supply of a contracted service as an employee of a juridical person that has no commercial presence in the other Party, where the juridical person obtains a service contract from a juridical person of the other Party;
(c) should have been an employee of the juridical person for a period of no less than one year immediately preceding the date of application for admission. The contract shall comply with the laws and regulations of the other Party; and
(d) is required to receive no remuneration from a juridical person located in the other Party;
executive means a business person within an organization who primarily directs the management of the organization, exercises wide latitude in decision-making, and receives only general supervision or direction from higher level executives, the board of directors, and/or stockholders of the business;
independent professional means a business person who:
(a) possesses appropriate educational and other qualifications relevant to the service to be provided;
(b) is a self-employed services supplier who is engaged in the supply of a contracted service, where the professional has a service contract from a person (2)of the other Party. The contract shall comply with the laws and regulations of the other Party; and
(c) receives remuneration from a person of the Party where the service is supplied;
labor dispute means a dispute between a union and employer related to terms and conditions of employment;
manager means a business person within an organization who primarily directs the organization or a department or sub-division of the organization, supervises, and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire or take other personnel actions such as promotion or leave authorization, and exercises discretionary authority over day-to-day operations;
professional means a business person of a Party who is engaged in a specialty occupation requiring:
(a) theoretical and practical application of a body of specialized knowledge; and
(b) attainment of a post-secondary degree, requiring four years of study, (3) or the equivalent of such a degree, as a minimum for entry into the occupation ;
specialist means a business person who possesses specialized knowledge of the company’s products or services and its application in international markets, or an advanced level of expertise or knowledge of the company’s processes and procedures. A specialist may include, but is not limited to, professionals; and
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Chapter TWELVE. Financial Services
Article 12.1. Scope of Application
1. This Chapter shall apply to measures adopted or maintained by a Party related to:
(a) financial institutions of the other Party;
(b) investors of the other Party, and investments of such investors, in financial institutions in the Party’s territory; and
(c) cross-border trade in financial services.
2. Chapters Nine (Investment) and Ten (Cross-Border Trade in Services) shall apply to
measures described in paragraph 1 only to the extent that these Chapters or Articles of these Chapters are incorporated into this Chapter.
(a) Articles 9.9 (Health, Safety, and Environmental Measures), 9.10 (Special Formalities and Information Requirements), 9.12 (Expropriation), 9.13 (Transfers), 9.14 (Denial of Benefits), and 10.11 (Denial of Benefits) are hereby incorporated into and made part of this Chapter.
(b) Section B (Settlement of Disputes between an Investor and the Host Party) of Chapter Nine (Investment) is hereby incorporated into and made part of this Chapter solely for claims that a Party has breached Article 9.10 (Special Formalities and Information Requirements), 9.12 (Expropriation), 9.13 (Transfers), or 9.14 (Denial of Benefits) as incorporated into this Chapter.
(c) Article 9.13 (Transfers) is incorporated into and made part of this Chapter to the extent that cross-border trade in financial services is subject to obligations under Article 12.5.
3. This Chapter shall not apply to measures adopted or maintained by a Party related to:
(a) activities or services forming part of a public retirement plan or statutory system of social security; (1)or
(b) activities or services conducted for the account or with the guarantee or using the financial resources of the Party, including its public entities,
except that this Chapter applies to the extent that a Party allows any of the activities or services referred to in subparagraph (a) or (b) to be conducted by its financial institutions in competition with a public entity or a financial institution.
4. This Chapter shall not apply to laws, regulations, or requirements governing the procurement by government agencies of financial services purchased for governmental purposes and not with a view to commercial resale or use in the supply of services for commercial sale.
Article 12.2. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords to its own investors, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments in financial institutions in its territory.
2. Each Party shall accord to financial institutions of the other Party and to investments of investors of the other Party in financial institutions treatment no less favorable than that it accords to its own financial institutions, and to investments of its own investors in financial institutions, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments.
3. For purposes of the national treatment obligations in Article 12.5.1, a Party shall accord to cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to its own financial service suppliers, in like circumstances, with respect to the supply of the relevant service.
Article 12.3. Most-favored-nation Treatment
Each Party shall accord to investors of the other Party, financial institutions of the other Party, investments of investors in financial institutions, and cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to the investors, financial institutions, investments of investors in financial institutions, and cross-border financial service suppliers of a non-Party, in like circumstances.
Article 12.4. Market Access for Financial Institutions
A Party shall not adopt or maintain, with respect to financial institutions of the other Party or investors of the other Party seeking to establish such institutions, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
(a) impose limitations on:
(i) the number of financial institutions whether in the form of numerical quotas, monopolies, exclusive service suppliers, or the requirements of an economic needs test;
(ii) the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of financial service operations or on the total quantity of financial services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;(2) or
(iv) the total number of natural persons that may be employed in a particular financial service sector or that a financial institution may employ and who are necessary for, and directly related to, the supply of a specific financial service in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which a financial institution may supply a service.
Article 12.5. Cross-border Trade
1. Each Party shall permit, under terms and conditions that accord national treatment, cross-border financial service suppliers of the other Party to supply the services specified in Annex 12B.
2. Each Party shall permit persons located in its territory, and its nationals wherever located, to purchase financial services from cross-border financial service suppliers of the other Party located in the territory of the other Party. This obligation does not require a Party to permit such suppliers to do business or solicit in its territory. Each Party may define “doing business” and “solicitation” for purposes of this obligation, provided that those definitions are not inconsistent with paragraph 1.
3. Without prejudice to other means of prudential regulation of cross-border trade in financial services, a Party may require the registration of cross-border financial service suppliers of the other Party and of financial instruments.
Article 12.6. New Financial Services (3)
Each Party shall permit a financial institution of the other Party to supply any new financial service that the Party would permit its own financial institutions, in like circumstances, to supply without additional legislative action by the Party.(4) Notwithstanding Article 12.4(b), a Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorization for the supply of the service. Where a Party requires a financial institution to obtain authorization to supply a new financial service, the Party shall decide within a reasonable time whether to issue the authorization and the 2 Subparagraph (a)(iii) shall not cover measures of a Party which limit inputs for the supply of financial services. 3 The Parties understand that nothing in this Article prevents a financial institution of a Party from applying to the other Party to request that it authorize the supply of a financial service that is supplied in neither Party's territory. Such application shall be subject to the law of the Party to which the application is made and, for greater certainty, shall not be subject to the obligations of this Article. 4 For greater certainty, this Article shall not apply to cross-border trade in financial services. authorization may be refused only for prudential reasons.
Article 12.7. Treatment of Certain Information
Nothing in this Chapter requires a Party to furnish or allow access to:
(a) information related to the financial affairs and accounts of individual customers of financial institutions or cross-border financial service suppliers; or
(b) any confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or prejudice legitimate commercial interests of particular enterprises.
Article 12.8. Senior Management and Boards of Directors
1. A Party shall not require financial institutions of the other Party to engage individuals of any particular nationality as senior managerial or other essential personnel.
2. A Party shall not require that more than a minority of the board of directors of a financial institution of the other Party be composed of nationals of the Party, persons residing in the territory of the Party, or a combination thereof.
Article 12.9. Non-conforming Measures
1. Articles 12.2 through 12.5 and Article 12.8 shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in Section A of its Schedule set out in Annex III; or
(ii) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 12.2, 12.3, 12.4, or 12.8. (5)
2. Articles 12.2 through 12.5 and Article 12.8 shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities, as set out by the Party in Section B of its Schedule set out in Annex III.
3. A non-conforming measure set out in an entry in a Party’s Schedule set out in Annex I or II as not subject to Article 9.3 (National Treatment), 9.4 (Most-Favored-Nation Treatment), 10.2 (National Treatment), or 10.3 (Most-Favored-Nation Treatment), shall be treated as a non-conforming measure not subject to Article 12.2 or 12.3, as the case may be, to the extent that the measure, sector, sub-sector, or activity set out in the entry is covered by this Chapter.
Article 12.10. Exceptions
1. Notwithstanding any other provision of this Chapter or Chapter Nine (Investment), Thirteen (Telecommunications), including specifically Article 13.2 (Relation to Other Chapters), or Fourteen (Electronic Commerce), and Chapter Eleven (Temporary Entry of Business Persons), in addition, Article 12.1 with respect to the supply of financial services in the territory of a Party by a covered investment, a Party shall not be prevented from adopting or maintaining measures for prudential reasons, (6) including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial institution or cross-border financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement referred to in this paragraph, they shall not be used as a means of avoiding the Party’s commitments or obligations under such provisions.
2. Nothing in this Chapter or Chapter Nine (Investment), Thirteen (Telecommunications), including specifically Article 13.2 (Relation to Other Chapters), or Fourteen (Electronic Commerce), and Chapter Eleven (Temporary Entry of Business Persons), in addition, Article 12.1 with respect to the supply of financial services in the territory of a Party by a covered investment, applies to non-discriminatory measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies. This paragraph shall not affect a Party’s obligations under Article 9.7 (Performance Requirements) with respect to measures covered by Chapter Nine (Investment) or under Article 9.13 (Transfers) or 10.12 (Payments and Transfers).
3. Notwithstanding Articles 9.13 (Transfers) and 10.12 (Payments and Transfers), as incorporated into this Chapter, a Party may prevent or limit transfers by a financial institution or cross-border financial service supplier to, or for the benefit of, an affiliate of or person related to such institution or supplier, through the equitable, non-discriminatory, and good faith application of measures related to maintenance of the safety, soundness, integrity, or financial responsibility of financial institutions or cross-border financial service suppliers. This paragraph does not prejudice any other provision of this Agreement that permits a Party to restrict transfers.
4. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from adopting or enforcing measures necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter, including those related to the prevention of deceptive and fraudulent practices or to deal with the effects of a default on financial services contracts, subject 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 cross-border trade in financial services.
Article 12.11. Transparency
1. The Parties recognize that transparent regulations and policies governing the activities of financial institutions and cross-border financial service suppliers are important in facilitating access of foreign financial institutions and foreign cross-border financial service suppliers to, and their operations in, each other’s markets. Each Party commits to promoting regulatory transparency in financial services.
2. Each Party shall ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective, and impartial manner.
3. In lieu of Article 21.1 (Publication), each Party, to the extent practicable:
(a) shall publish in advance any regulations of general application related to the subject matter of this Chapter that it proposes to adopt and the purpose of the regulation;
(b) shall provide interested persons and the other Party a reasonable opportunity to comment (7) on such proposed regulations; and
(c) should at the time it adopts final regulations, address in writing substantive comments received from interested persons with respect to the proposed regulations. (8)
4. To the extent practicable, each Party should allow reasonable time between
publication of final regulations of general application and their effective date.
5. Each Party shall ensure that the rules of general application adopted or maintained by self-regulatory organizations of the Party are promptly published or otherwise made available in such a manner as to enable interested persons to become acquainted with them.
6. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding measures of general application covered by this Chapter.
7. Each Party’s regulatory authorities shall make publicly available the requirements, including any documentation required, for completing applications related to the supply of financial services.
8. Upon request of an applicant, a Party’s regulatory authority shall inform the applicant of the status of its application. If the authority requires additional information from the applicant, it shall notify the applicant without undue delay.
9. A Party’s regulatory authority shall make an administrative decision on a completed application of an investor in a financial institution, a financial institution, or a cross-border financial service supplier of the other Party related to the supply of a financial service within 120 days, and shall promptly notify the applicant of the decision. An application shall not be considered complete until all relevant hearings are held and all necessary information is received. Where it is not practicable for a decision to be made within 120 days, the regulatory authority shall notify the applicant without undue delay and shall endeavor to make the decision within a reasonable time thereafter.
10. Upon request of an unsuccessful applicant, a regulatory authority that has denied an application shall, to the extent practicable, inform the applicant of the reasons for denial of the application.
Article 12.12. Self-regulatory Organizations (9)
Where a Party requires a financial institution or a cross-border financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organization to provide a financial service in or into the territory of that Party, the Party shall ensure that the self-regulatory organization observes the obligations of Articles 12.2 and 12.3.
Article 12.13. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant 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 refinancing 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 12.14. Recognition
1. A Party may recognize prudential measures of a non-Party in the application of measures covered by this Chapter. Such recognition may be:
(a) accorded autonomously;
(b) achieved through harmonization or other means; or
(c) based on an agreement or arrangement with the non-Party.
2. A Party according recognition of prudential measures under paragraph 1 shall provide adequate opportunity to the other Party to demonstrate that circumstances exist in which there are or would be equivalent regulation, oversight, implementation of regulation, and, if appropriate, procedures concerning the sharing of information between the Parties.
3. Where a Party accords recognition of prudential measures under paragraph 1(c) and the circumstances described in paragraph 2 exist, the Party shall provide adequate opportunity to the other Party to negotiate accession to the agreement or arrangement, or to negotiate a comparable agreement or arrangement.
Article 12.15. Specific Commitments
Annex 12C sets out certain specific commitments by each Party.