For purposes of this Chapter:
1, central level of government means
(a) for the United States, the federal level of government; and
(b) for Singapore, the national level of government;
2. cross-border trade in services or cross-border supply of services means the supply of a service
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of one Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party;
but does not include the supply of a service in the territory of a Party by an investor of the other Party or a covered investment as defined in Article 15.1 (Definitions);
3. enterprise means an entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization and a branch of an enterprise;
4. enterprise of a Party means an enterprise organized or constituted under the laws of a Party and a branch located in the territory of a Party and carrying out business activities there;
5, local level of government means, for Singapore, entities with sub-national legislative or executive powers under domestic law, including Town Councils and Community Development Councils;
6. professional services means services, the provision of which requires specialized post- secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members;
7. regional level of government means, for the United States, a state of the United States, the District of Columbia, or Puerto Rico; for Singapore, "regional level of government" is not applicable, as Singapore has no government at the regional level;
8. service supplier means a person of a Party that seeks to supply or supplies a service (8-1); and
9. specialty air services means any non-transportation air services, such as aerial fire-fighting, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
Article 8.2. SCOPE AND COVERAGE
1. (a) This Chapter applies to measures by a Party affecting cross-border trade in services by service suppliers of the other Party.
(b) Measures covered by subparagraph (a) include measures affecting:
(i) the production, distribution, marketing, sale and delivery of a service;
(ii) the purchase or use of, or payment for, a service;
(iii) the access to and use of distribution, transport, or telecommunications networks and services in connection with the supply of a service; and
(iv) the provision of a bond or other form of financial security as a condition for the supply of a service.
(c) For purposes of this Chapter, measures by a Party means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.
2. Articles 8.5, 8.8 and 8.12 also apply to measures by a Party affecting the supply of a service in its territory by an investor of the other Party or a covered investment as defined in Article 15.1 (Definitions). (8-2)
3. This Chapter does not apply to:
(a) financial services as defined in Article 10.20 (Definitions), except that paragraph 2 shall apply where the service is supplied by an investor or investment of the other Party that is not an investor or an investment in a financial institution (as defined in Article 10.20.4) in the Party's territory;
(b) government procurement;
(c) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service; and
(ii) specialty air services; or
(d) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance.
4. This Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.
5. (a) This Chapter does not apply to services supplied in the exercise of governmental authority within the territory of each respective Party.
(b) For purposes of this Chapter, a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.
Article 8.3. NATIONAL TREATMENT
1. Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own service suppliers.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that regional level of government to service suppliers of the Party of which it forms a part.
Article 8.4. MOST-FAVORED-NATION TREATMENT
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non-Party.
Article 8.5. MARKET ACCESS
A Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
(a) limit
(i) the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (8-3)
(iv) 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; and
(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 8.6. LOCAL PRESENCE
A Party shall not require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 8.7. NON-CONFORMING MEASURES
1. Articles 8.3, 8.4, 8.5, and 8.6 do 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 its Schedule to Annex 8A;
(ii) a regional level of government, as set out by that Party in its Schedule to Annex 8A; or
(iii) a local government 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 Articles 8.3, 8.4, 8.5, and 8.6.
2. Articles 8.3, 8.4, 8.5, and 8.6 do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities as set out in its Schedule to Annex 8B.
Article 8.8. DOMESTIC REGULATION
1. Where a Party requires authorization for the supply of a service, the Party's competent authorities shall, 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. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application. This obligation shall not apply to authorization requirements that are within the scope of Article 8.7.2.
2. 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, each Party shall endeavor to ensure, as appropriate for individual sectors, that such measures 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.
3. If the results of the negotiations related to Article VI:4 of GATS (or the results of any similar negotiations undertaken in other multilateral fora in which both Parties participate) enter into effect, this Article shall be amended, as appropriate, after consultations between the Parties, to bring those results into effect under this Agreement. The Parties agree to coordinate on such negotiations, as appropriate.
Article 8.9. RECOGNITION
1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of paragraph 4, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country, including the other Party and non- Parties. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
2. Where a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met or licenses or certifications granted in the territory of a non-Party, nothing in Article 8.4 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met or licenses or certifications granted in the territory of the other Party.
3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Party's territory should be recognized.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services.
5. Annex 8C applies to measures by a Party relating to the licensing or certification of professional service suppliers as set out in the provisions of that Annex.
Article 8.10. TRANSFERS AND PAYMENTS
1. Each Party shall permit all transfers and payments relating to the cross-border supply of services to be made freely and without delay into and out of its territory. (8-4) Such transfers and payments include:
(a) payments for services;
(b) funds taken abroad to consume a service;
(c) interest, royalty payments, management fees, licensing fees, and technical assistance and other fees;
(d) payments made under a contract; and
(e) inflows of funds necessary to perform a service.
2. Each Party shall permit such transfers and payments relating to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer or payment through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 8.11. DENIAL OF BENEFITS
A Party may deny the benefits of this Chapter to a service supplier of the other Party if:
(a) the service is being supplied by an enterprise owned or controlled by nationals of a non-Party and the denying Party:
(i) does not maintain diplomatic relations with the non-Party; or
(ii) adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise; or
(b) the service is being supplied by an enterprise that has no substantial business activities in the territory of the other Party and it is owned or controlled by persons of a non-Party or the denying Party.
Article 8.12. TRANSPARENCY IN DEVELOPMENT AND APPLICATION OF REGULATIONS
In addition to the obligations in Chapter 19 (Transparency):
(a) Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding regulations (8-5) relating to the subject matter of this Chapter and their requirements.
(b) If a Party does not provide advance notice and comment pursuant to Article 19.3 , it shall, to the extent possible, provide by publicly available means the reasons therefor.
(c) At the time it adopts final regulations relating to the subject matter of this Chapter, each Party shall, to the extent possible, including upon request, address by publicly available means substantive comments received from interested persons with respect to the proposed regulations.
(d) To the extent possible, each Party shall allow reasonable time between publication of final regulations and their effective date.
Article 8.13. IMPLEMENTATION
The Parties will meet annually, or as otherwise agreed, on issues related to implementation of this Chapter and any issues of mutual interest.
Chapter 9. TELECOMMUNICATIONS
Article 9.1. SCOPE AND COVERAGE
1. This Chapter applies to measures affecting trade in telecommunications services.
2. This Chapter does not apply to any measure adopted or maintained by a Party relating to cable or broadcast distribution of radio or television programming. (9-1)
3. Nothing in this Chapter shall be construed to:
(a) require a Party (or require a Party to compel any enterprise) to establish, construct, acquire, lease, operate, or provide telecommunications transport networks or telecommunications services where such networks or services are not offered to the public generally; or
(b) require a Party to compel any enterprise engaged in the cable or broadcast distribution of radio or television programming to make available its cable or broadcast facilities as a public telecommunications transport network, unless a Party specifically designates such facilities as such.
Article 9.2. ACCESS TO AND USE OF PUBLIC TELECOMMUNICATIONS TRANSPORT NETWORKS AND SERVICES (9-2)
1. Each Party shall ensure that enterprises of the other Party have access to and use of any public telecommunications transport network and service, including leased circuits, offered in its territory or across its borders on reasonable, non-discriminatory (including with respect to timeliness), and transparent terms and conditions, including as set out in paragraphs 2 through 4.
2. Each Party shall ensure that such enterprises are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with the public telecommunications network;
(b) provide services to individual or multiple end-users over any leased or owned circuit(s);
(c) connect leased or owned circuits with public telecommunications transport networks and services in the territory, or across the borders, of that Party, or with circuits leased or owned by another enterprise;
(d) perform switching, signaling, processing, and conversion functions; and
(e) use operating protocols of their choice.
3. Each Party shall ensure that enterprises of the other Party may use public telecommunications transport networks and services for the movement of information in its territory or across its borders and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of customer proprietary network information;
subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Article 9.3. INTERCONNECTION WITH SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES
1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly or indirectly, interconnection with the facilities and equipment of suppliers of public telecommunications services of the other Party.
2. In carrying out paragraph 1, each Party shall ensure that suppliers of public telecommunications services in its territory take reasonable steps to protect the confidentiality of proprietary information of, or relating to, suppliers and end-users of public telecommunications services and only use such information for the purpose of providing public telecommunications services.
Article 9.4. CONDUCT OF MAJOR SUPPLIERS (9-3) (9-4)
Treatment by Major Suppliers
1. Each Party shall ensure that any major supplier in its territory accords suppliers of public telecommunications services of the other Party treatment no less favorable than such major supplier accords to itself, its subsidiaries, its affiliates, or any non-affiliated service supplier regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
A Party shall assess such treatment on the basis of whether such suppliers of public telecommunications services, subsidiaries, affiliates, and non-affiliated service suppliers are in like circumstances.
Competitive Safeguards
2. (a) Each Party shall maintain appropriate measures for the purpose of preventing suppliers of public telecommunications services who, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices.
(b) For purposes of subparagraph (a), anti-competitive practices include:
(i) engaging in anti-competitive cross-subsidization;
(ii) using information obtained from competitors with anti-competitive results; and
(iii) not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that is necessary for them to provide public telecommunications services.
3. (a) Recognizing that both Parties currently provide for access to unbundled network elements, each Party shall provide its telecommunications regulatory body the authority to require that major suppliers in its territory provide suppliers of public telecommunications services of the other Party access to network elements on an unbundled basis at terms, conditions, and cost-oriented rates, that are reasonable, non-discriminatory (including with respect to timeliness), and transparent for the supply of public telecommunications services.
(b) Which network elements will be required to be made available in the territory of a Party, and which suppliers may obtain such elements, shall be determined in accordance with national law and regulation.
(c) In determining the network elements to be made available, a Party's telecommunications regulatory body shall consider, at a minimum, in accordance with national law and regulation:
(i) whether access to such network elements as are proprietary in nature are necessary; and whether the failure to provide access to such network elements would impair the ability of suppliers of public telecommunications services of the other Party to provide the services it seeks to offer; or