(b) the period of time normally required to reach a decision concerning an application for a license or concession; and
(c) the terms and conditions of all licenses or concessions it has issued.
2. Each Party shall ensure that an applicant receives, upon request, the reasons for the denial of a license or concession.
Article 12.9. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, in an objective, timely, transparent and non-discriminatory fashion.
2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies assigned or allocated for specific government uses.
Article 12.10. Resolution of Domestic Telecommunications Disputes
Recourse to Telecommunications Regulatory Bodies
1. Each Party shall ensure that suppliers of public telecommunications transport networks or services of the other Party have recourse (within a reasonable period of time) to a telecommunications regulatory body to resolve disputes arising under domestic measures addressing a matter set out in Articles 12.2 through 12.9.
Reconsideration
2. Each Party shall ensure that any supplier of public telecommunications transport networks or services aggrieved or whose interests are adversely affected by a determination or decision of the telecommunications regulatory body may petition that body for reconsideration of the determination or decision.
Judicial Review and Appeal
3. Each Party shall ensure that any supplier of public telecommunications transport networks or services aggrieved by a determination or decision of the telecommunications regulatory body has the opportunity to appeal, or obtain judicial review of, such determination or decision to an independent judicial or administrative authority (6).
Article 12.11. Transparency
Further to Chapter 14 (Transparency), each Party shall ensure that:
(a) rulemakings, including the basis for such rulemakings, of its telecommunications regulatory body and end-user tariffs filed with its telecommunications regulatory body are promptly published or otherwise made available to all interested suppliers of public telecommunications transport networks or services;
(b) interested suppliers of public telecommunications transport networks or services are provided with adequate advance public notice of, and the opportunity comment on, any rulemaking proposed by the telecommunications regulatory body;
(c) Its measures relating to public telecommunications transport networks or services are made publicly available, including:
(i) tariffs and other terms and conditions of service;
(ii) specifications of technical interfaces;
(iii) conditions applying to attachment of terminal or other equipment to the public telecommunications transport network; and
(iv) notification, permit, requirements, if any; and registration, or licensing
(d) Information on bodies responsible for preparing, amending, and adopting standards related measures is made publicly available.
Article 12.12. Relationship to other Chapters
In the event of any inconsistency between this Chapter and any other Chapter, this Chapter shall prevail to the extent of any such inconsistency.
Article 12.13. Definitions
For the purposes of this Chapter:
1. backhaul links means end-to-end transmission links from a submarine cable landing station to another primary point of access to the Party’s public telecommunications transport network;
2. cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
3. commercial mobile services means public telecommunications services supplied through mobile wireless means;
4. cross-connect links means the links in a submarine cable landing station used to connect submarine cable capacity to the transmission, switching and routing equipment of different suppliers of public telecommunications services co-located in that submarine cable landing station;
5. customer proprietary network information means information made available to the supplier of public telecommunications transport networks or services by the end-user solely by virtue of the end-user telecommunications service supplier relationship;
6. end-user means a final consumer of or subscriber to a public telecommunications transport networks or service, including a service supplier but excluding a supplier of public telecommunications transport networks or services;
7. essential facilities means facilities of a public telecommunications transport network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to provide a service;
8. interconnection means linking with suppliers providing public telecommunications transport networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
9. leased circuits means telecommunications facilities between two or more designated points which are set aside for the dedicated use of or availability to a particular customer or other users of the customer’s choosing;
10. major supplier means a supplier of public telecommunications transport networks or services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications transport networks or services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
11. network element means a facility or equipment used in the provision of a public telecommunications service, including features, functions, and capabilities that are provided by means of such facility or equipment;
12. non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications transport networks or services in like circumstances;
13. number portability means the ability of end-users of public telecommunications transport networks or services to retain, at the same location, existing telephone numbers without impairment of quality, reliability, or convenience by the original suppliers when switching between like suppliers of public telecommunications transport networks or services;
14. physical co-location means physical access to and control over space in order to install, maintain, or repair equipment used to provide public telecommunications transport networks or services;
15. public telecommunications transport network means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points;
16. public telecommunications transport service means any telecommunications transport service required, explicitly or in effect, by a Party to be offered to the public generally. Such services may include inter alia, telegraph, telephone, telex and data transmission typically involving the real time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information;
17. service supplier means any person that supplies a service;
18. submarine cable landing station means the premises and buildings where international submarine cables arrive and terminate and are connected to backhaul links;
19. supplier of public telecommunications transport networks and services means any provider of public telecommunications transport networks or public telecommunications transport services, including those who provide such networks or services to other suppliers of public telecommunications transport networks or services;
20. telecommunications means the transmission and reception of signals by any electromagnetic means (7);
21. telecommunications regulatory body means a national body responsible for the regulation of telecommunications; and
22. user means an end-user or a supplier of public telecommunications transport networks or services.
Chapter 13. ELECTRONIC COMMERCE
Article 13.1. General
The Parties recognize the economic growth and opportunity provided by electronic commerce and the importance of avoiding barriers to its use and development and the applicability of WTO rules to electronic commerce.
Article 13.2. Electronic Supply of Services
For greater certainty, the Parties affirm that measures related to the supply of a service using electronic means falls within the scope of the obligations contained in the relevant provisions of Chapters 9 (Investment), 10 (Cross- Border Trade in Services) and 11 (Financial Services), subject to any exceptions applicable to such obligations and except where an obligation does not apply to any such measure pursuant to Articles 9.10 (Non- Conforming Measures), 10.7 (Non-Conforming Measures), or 11.10 (Non- Conforming Measures).
Article 13.3. Digital Products
1. A Party shall not apply customs duties or other duties, fees, or charges on or in connection with the importation or exportation of digital products by electronic transmission (1).
2. A Party shall not accord less favorable treatment to some digital products than it accords to other like digital products:
(a) on the basis that:
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, outside its territory; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or a non-Party; or
(b) so as otherwise to afford protection to the other like digital products that is created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in its territory.
3. A Party shall not accord less favorable treatment to digital products:
(a) created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of a non-Party;
(b) whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.
4. Paragraphs 2 & 3 do not apply to any non-conforming measure
described in Articles 9.10 (Non-Conforming Measures), 10.7 (Non-Conforming Measures), or 11.10 (Non-Conforming Measures).
5. This Article does not apply to measures affecting the electronic transmission of a series of text, video, images, sound recordings, and other products scheduled by a content provider for aural and / or visual reception, and for which the content consumer has no choice over the scheduling of the series.
Article 13.4. Cooperation
Recognizing the global nature of electronic commerce, the Parties affirm the importance of:
(a) working together to overcome obstacles encountered by the private sector, including small and medium enterprises in using electronic commerce;
(b) sharing information and experiences on issues in the sphere of electronic commerce, including those related to data privacy, consumer confidence in electronic commerce, cyber-security, electronic signatures, intellectual property rights, and electronic government;
(c) working to maintain cross-border flows of information as an essential element in fostering a vibrant environment for electronic commerce;
(d) encouraging the private sector to adopt self-regulation, including through codes of conduct, model contracts, guidelines, and enforcement mechanisms that foster electronic commerce; and
(e) actively participating in regional and multilateral fora to promote the development of electronic commerce.
Article 13.5. Definitions
For purposes of this Chapter:
1. carrier medium means any physical object capable of storing a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, a floppy disk, or a magnetic tape;
2. digital products means computer programs, text, video, images, sound recordings and other products that are digitally encoded, regardless of whether they are fixed on a carrier medium or transmitted electronically (2);
3. electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
4. using electronic means means employing computer processing.
Chapter 14. Transparency
Article 14.1. Contact Points
1. Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Agreement.
2. On the request of the other Party, the contact points shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the requesting Party.
Article 14.2. Publication
Each Party shall ensure that its laws, regulations, procedures, and administrative actions of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them, unless otherwise provided for in this Agreement.
Article 14.3. Notification and Provision of Information
1. Each Party shall do its best efforts to notify, within the existing domestic regulations, to the other Party of any actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party’s interests under this Agreement.
2. On request of the other Party, a Party shall provide information and respond to questions pertaining to actual measures related to matters covered under this Agreement, whether or not the other Party has been previously notified of that measure.
3 Any notification, request, or information under this Article shall be provided to the other Party through the relevant contact points.
4. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Subsection 14.4. Administrative Proceedings
1. With a view to administering in a consistent, impartial, and reasonable manner all measures referred to in Article 1.3.8 (Definitions of General Application), each Party shall ensure that in its administrative proceedings applying such measures to particular persons, goods, or services of the other Party in specific cases that:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding, and the public interest permit; and
(c) its procedures are in accordance with their domestic law.
Article 14.5. Review and Appeal
1. Each Party shall establish or maintain judicial or administrative tribunals or procedures for the purpose of the prompt review (1) and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceedings are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions (2); and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decision shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
Article 14.6. Definitions
For purposes of this Chapter:
Administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative proceeding that applies to a particular person, good, or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Chapter 15. DISPUTE SETTLEMENT
Article 15.1. Cooperation
The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Article 15.2. Scope of Application
1. Except as otherwise provided in this Agreement, the provisions of this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties concerning their rights and obligations under this Agreement.
2. The rules, procedures and time frames set out in this Chapter may be waived, varied or modified by mutual agreement.
Article 15.3. Consultations
1. Except as otherwise provided in this Agreement, either Party may request consultations with the other Party with respect to any matter affecting the implementation, interpretation or application of this Agreement. If a Party requests consultations with regard to a matter, the other Party shall afford adequate opportunity for consultations and shall reply promptly to the request for consultations and enter into consultations in good faith.
2. The requesting Party shall deliver the request to the other Party and shall set out the reasons for the request, including identification of the measure or other matter at issue and an indication of the legal basis for the complaint.
3. Consultations shall be held within 30 days after the date of receipt of the request for consultations. Consultations on matters regarding perishable goods (1) shall commence within 10 days after the date of receipt of the request.
4. The Parties shall at all times endeavour to agree on the interpretation and application of the Agreement and shall make every attempt to arrive at a mutually satisfactory resolution of any matter through consultations under this Article or other consultative provisions of this Agreement. To this end, the Parties shall:
(a) provide sufficient information to enable a full examination of how the measure or other matter might affect the operation and application of this Agreement; and
(b) treat any confidential information exchanged in the course of consultations which the other Party has designated as confidential, on the same basis as the Party providing the said information.
Article 15.4. Referral to the Administrative Commission, Good Offices, Conciliation and Mediation
1. Except as otherwise provided in this Agreement, the provisions of this Article shall apply whenever:
(a) a Party considers that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement is being impeded, as a result of a measure of the other Party that is inconsistent with this Agreement;
(b) a Party considers that any benefit the Party could reasonably have expected to accrue to it under Chapters 2 (Trade in Goods), 3 (Rules of Origin) and 10 (Cross-Border Trade in Services), is being nullified or impaired as the result of a measure that is not inconsistent with this Agreement; or
(c) the Parties are unable to agree on compensatory adjustments pursuant to Headnotes of Section A and Section B of Annex III (Financial Services Annexes).
2. The Parties shall first seek to resolve a dispute described in paragraph 1 above through consultations under Article 15.3. The Parties shall make every effort to reach a mutually satisfactory resolution through consultation.
3. If the Parties fail to resolve a matter pursuant to Article 15.3 within:
(a) 60 days after the date of receipt of the request for consultations;
(b) 15 days after the date of receipt of the request for consultations in matters regarding perishable goods; or
(c) such other period as they may agree, a Party may in writing refer the matter to the Administrative Commission established under Article 17.1 (Administrative Commission of the Agreement) which shall endeavour to resolve the dispute.
4. Good offices, conciliation and mediation are procedures that are initiated on a voluntary basis if the Parties so agree.
5. Proceedings involving good office, conciliation and mediation, and in particular the positions of the Parties to the dispute during these proceedings, shall be confidential and without prejudice to the rights of either Party in any further proceedings under these procedures.
6. Good offices, conciliation or mediation may be requested at any time by either Party to a dispute. They may begin at any time and be terminated at any time.
7. If the Parties agree, procedures for good offices, conciliation or mediation may continue while the dispute proceeds for resolution before an arbitral panel appointed under Article 15.6.
Article 15.5. Choice of Forum
1. Disputes regarding any matter arising under this Agreement as well as the WTO Agreement, any agreement negotiated thereunder, or any successor agreement, may be settled in the forum selected by the complaining Party.
2. Once a Party has requested the establishment of an arbitral panel under Article 15.6 or under the WTO Agreement, the forum selected shall be used to the exclusion of the others. The complaining Party shall notify the other Party in writing of its intention to bring a dispute to a particular forum before doing so.
3. For the purposes of this Article, dispute settlement proceedings under Article 15.6 or Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO Agreement are deemed to be initiated upon a request for an arbitral panel by the Party.
Article 15.6. Request for an Arbitral Panel
1. If the Administrative Commission has not resolved a dispute within: