(A) direct insurance (including co-insurance):
(1) life; and
(2) non-life;
(B) reinsurance and retrocession;
(C) insurance intermediation, such as brokerage and agency; and
(D) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services; and
(ii) banking and other financial services (excluding insurance):
(A) acceptance of deposits and other repayable funds from the public;
(B) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(C) financial leasing;
(D) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(E) guarantees and commitments;
(F) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(1) money market instruments (including cheques, bills and certificates of deposits);
(2) foreign exchange;
(3) derivative products including, but not limited to, futures and options;
(4) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(5) transferable securities; and
(6) other negotiable instruments and financial assets, including bullion;
(G) participation in issues of all kinds of securities, including underwriting and placement as agent, whether publicly or privately, and provision of services related to such issues;
(H) money broking;
(I) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(J) settlement and clearing services for financial assets, including securities, derivative products and other negotiable instruments;
(K) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(L) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (A) to (K), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party wishing to supply or supplying financial services but does not include a public entity;
(c) "new financial service" means any service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of the other Party;
(d) "postal insurance entity" means an entity that underwrites and sells insurance to the general public and that is owned or controlled, directly or indirectly, by a postal entity of a Party;
(e) "public entity" means:
(i) a government, a central bank or a monetary authority of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or a monetary authority, when exercising those functions; and
(f) "self-regulatory organisation" means a non-governmental body, including a securities or futures exchange or market, clearing agency, or other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by delegation from a Party.
Article 8.60. Financial Services New to the Territory of a Party
1. A Party shall permit financial service suppliers of the other Party established in its territory to offer in its territory any new financial service.
2. Notwithstanding subparagraph (b) of Article 8.7, a Party may determine the juridical form through which the new financial service may be supplied and may require authorisation for the supply of the service. If a Party requires an authorisation, it may refuse the authorisation for prudential reasons but not solely for the reason that the service is not supplied by any financial service supplier in its territory.
Article 8.61. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant to financial service suppliers 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 8.62. Self-regulatory Organisations
If a Party requires membership or participation in, or access to, a self-regulatory organisation in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial service suppliers of that Party, or if that Party provides, directly or indirectly, the self-regulatory organisation privileges or advantages in supplying financial services, that Party shall ensure that the self-regulatory organisation observes the obligations contained in Article 8.8.
Article 8.63. Transfers of Information and Processing of Information
1. A Party shall not take measures that prevent transfers of information or the processing of financial information, including transfers of data by electronic means, or that, subject to importation rules consistent with international agreements, prevent transfers of equipment, if those transfers of information, processing of financial information or transfers of equipment are necessary for the conduct of the ordinary business of a financial service supplier.
2. Nothing in paragraph 1 restricts the right of a Party to protect personal data, personal privacy and the confidentiality of individual records and accounts so long as that right is not used to circumvent Sections B to D and this Sub-Section.
Article 8.64. Effective and Transparent Regulation
1. If a Party requires a licence for the supply of a financial service, it shall make the requirements and procedures for such a licence publicly available.
2. If a Party requires additional information from the applicant in order to process its application, it shall notify the applicant without undue delay.
3. A Party shall endeavour to ensure that the rules of general application adopted or maintained by self-regulatory organisations in the territory of that Party are promptly published or otherwise made available in such a manner as to enable interested persons to become acquainted with them.
Article 8.65. Prudential Carve-out
1. Nothing in this Agreement shall prevent a Party from adopting or maintaining measures for prudential reasons, including for:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(b) ensuring the integrity and stability of the Party's financial system.
2. Where such measures do not conform with this Agreement, they shall not be used as a means of avoiding the Party's obligations under this Agreement.
3. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 8.66. Supply of Insurance Services by Postal Insurance Entities
1. This Article sets out disciplines that apply if a Party allows its postal insurance entity to underwrite and supply direct insurance services to the general public. The services covered by this Article do not include the supply of insurance services relating to the collection, transport and delivery of letters or packages by a Party's postal insurance entity.
2. A Party shall not adopt or maintain a measure that creates conditions of competition that are more favourable to a postal insurance entity with respect to the supply of insurance services referred to in paragraph 1 as compared to a private supplier of like insurance services in its market, including by:
(a) imposing more onerous conditions on a private supplier's licence to supply insurance services than the conditions the Party imposes on a postal insurance entity to supply like services; or
(b) making a distribution channel for the sale of insurance services available to a postal insurance entity under terms and conditions more favourable than those it applies to private suppliers of like services.
3. With respect to the supply of insurance services referred to in paragraph 1 by a postal insurance entity, a Party shall apply the same regulations and enforcement activities that it applies to the supply of like insurance services by private suppliers.
4. In implementing its obligations under paragraph 3, a Party shall require a postal insurance entity that supplies insurance services referred to in paragraph 1 to publish an annual financial statement with respect to the supply of those services. The statement shall provide the level of detail and meet the auditing standards required under generally accepted accounting and auditing principles, internationally accepted accounting and auditing standards or equivalent rules, applied in the Party's territory with respect to publicly traded private enterprises that supply like services.
5. Paragraphs 1 to 4 do not apply to a postal insurance entity in the territory of a Party:
(a) that the Party neither owns nor controls, directly or indirectly, as long as the Party does not maintain any advantage that modifies the conditions of competition in favour of the postal insurance entity in the supply of insurance services as compared to a private supplier of like insurance services in its market; or
(b) if sales of direct life and non-life insurance underwritten by the postal insurance entity each account for no more than 10 per cent, respectively, of total annual premium income from direct life and non-life insurance in the Party's market.
Article 8.67. Regulatory Cooperation on Financial Regulation
The Parties shall promote regulatory cooperation on financial regulation in accordance with Annex 8-A.
Subsection 6. International Maritime Transport Services
Article 8.68. Scope and Definitions
1. This Sub-Section sets out the principles of the regulatory framework for the provision of international maritime transport services pursuant to Sections B to D of this Chapter, and applies to measures by a Party affecting trade in international maritime transport services.
2. For the purposes of this Chapter:
(a) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing or stripping, repairing and making them available for shipments;
(b) "customs clearance services" means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or through transport of cargoes, irrespective of whether this service is the main activity of the service supplier or a usual complement of its main activity;
(c) "door-to-door or multimodal transport operations" means the transport of cargo using more than one mode of transport, involving an international sea-leg, under a single transport document;
(d) "freight forwarding services" means activities consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
(e) "international maritime transport services" means the transport of passengers or cargo by sea-going vessels between a port of a Party and a port of the other Party or a third country, and includes the direct contracting with suppliers of other transport services, with a view to covering door-to-door or multimodal transport operations under a single transport document, but does not include the right to supply such other transport services.
(f) "maritime agency services" means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information; and
(ii) acting on behalf of the companies organising the call of the ship or taking over cargoes when required;
(g) "maritime auxiliary services" means maritime cargo handling services, storage and warehousing services, customs clearance services, container station and depot services, maritime agency services and freight forwarding services;
(h) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators but not including the direct activities of dockers, when this workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(i) the loading or discharging of cargo to or from a ship;
(ii) the lashing or unlashing of cargo; and
(iii) the reception or delivery and safekeeping of cargoes before shipment or after discharge; and
(i) "storage and warehousing services" means storage services of frozen or refrigerated goods, bulk storage services of liquids or gases, and storage and warehousing services of other goods including cotton, grain, wool, tobacco, other farm products and other household goods.
Article 8.69. Obligations
Without prejudice to non-conforming measures or other measures referred to in Articles 8.12 and 8.18, each Party shall:
(a) respect the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis;
(b) accord to ships flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than that it accords to its own ships, with regard to, inter alia, access to ports, the use of infrastructure and services of ports, and the use of maritime auxiliary services, as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading; (57)
(c) permit international maritime transport service suppliers of the other Party to establish and operate an enterprise in its territory under conditions of establishment and operation no less favourable than that it accords to its own service suppliers; and
(d) make available to international maritime transport suppliers of the other Party, on reasonable and non-discriminatory terms and conditions, the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, emergency repair facilities, anchorage, berth and berthing services, shore-based operational services essential to ship operations, including communications, water and electrical supplies.
Section F. Electronic Commerce
Article 8.70. Objective and General Provisions
1. The Parties recognise that electronic commerce contributes to economic growth and increases trade opportunities in many sectors. The Parties also recognise the importance of facilitating the use and development of electronic commerce.
2. The objective of this Section is to contribute to creating an environment of trust and confidence in the use of electronic commerce and to promote electronic commerce between the Parties.
3. The Parties recognise the importance of the principle of technological neutrality in electronic commerce.
4. This Section applies to measures by a Party affecting trade by electronic means.
5. This Section does not apply to gambling and betting services, broadcasting services, audio-visual services, services of notaries or equivalent professions, and legal representation services.
6. In the event of any inconsistency between the provisions of this Section and the other provisions of this Agreement, those other provisions shall prevail to the extent of the inconsistency.
Article 8.71. Definitions
For the purposes of this Section:
(a) "electronic authentication" means the process or act of verifying the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication; and
(b) "electronic signature" means data in electronic form which are attached to or logically associated with other electronic data and fulfil the following requirements:
(i) that it is used by a person to confirm that the electronic data to which it relates have been created or signed, in accordance with each Party's laws and regulations, by that person; and
(ii) that it confirms that information in the electronic data has not been altered.
Article 8.72. Customs Duties
The Parties shall not impose customs duties on electronic transmissions.
Article 8.73. Source Code
1. A Party may not require the transfer of, or access to, source code of software owned by a person of the other Party. (58) Nothing in this paragraph shall prevent the inclusion or implementation of terms and conditions related to the transfer of or granting of access to source code in commercially negotiated contracts, or the voluntary transfer of or granting of access to source code for instance in the context of government procurement.
2. Nothing in this Article shall affect:
(a) requirements by a court, administrative tribunal or competition authority to remedy a violation of competition law;
(b) requirements by a court, administrative tribunal or administrative authority with respect to the protection and enforcement of intellectual property rights to the extent that source codes are protected by those rights; and
(c) the right of a Party to take measures in accordance with Article III of the GPA.
3. For greater certainty, nothing in this Article shall prevent a Party from adopting or maintaining measures (59) which are inconsistent with paragraph 1, in accordance with Articles 1.5, 8.3 and 8.65.
Article 8.74. Domestic Regulation
Each Party shall ensure that all its measures of general application affecting electronic commerce are administered in a reasonable, objective and impartial manner.
Article 8.75. Principle of No Prior Authorisation
1. The Parties will endeavour not to impose prior authorisation or any other requirement having equivalent effect on the provision of services by electronic means.
2. Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at services provided by electronic means, and to rules in the field of telecommunications.
Article 8.76. Conclusion of Contracts by Electronic Means
Unless otherwise provided for in its laws and regulations, a Party shall not adopt or maintain measures regulating electronic transactions that:
(a) deny the legal effect, validity or enforceability of a contract, solely on the grounds that it is concluded by electronic means; or
(b) otherwise create obstacles to the use of contracts concluded by electronic means.
Article 8.77. Electronic Authentication and Electronic Signature
1. Unless otherwise provided for in its laws and regulations, a Party shall not deny the legal validity of a signature solely on the grounds that the signature is in electronic form.
2. A Party shall not adopt or maintain measures regulating electronic authentication and electronic signature that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for their transaction; or
(b) prevent parties to electronic transactions from having the opportunity to establish before judicial or administrative authorities that their electronic transactions comply with any legal requirements with respect to electronic authentication and electronic signature.
3. Notwithstanding paragraph 2, each Party may require that, for a particular category of transactions, the method of authentication meets certain performance standards or is certified by an authority accredited in accordance with its laws and regulations.
Article 8.78. Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective consumer protection measures applicable to electronic commerce as well as measures conducive to the development of consumer confidence in electronic commerce.
2. The Parties recognise the importance of cooperation between their respective competent authorities in charge of consumer protection on activities related to electronic commerce in order to enhance consumer protection.
3. The Parties recognise the importance of adopting or maintaining measures, in accordance with their respective laws and regulations, to protect the personal data of electronic commerce users.
Article 8.79. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages; and
(b) require the prior consent, as specified according to its laws and regulations, of recipients to receive commercial electronic messages.
2. Each Party shall ensure that commercial electronic messages are clearly identifiable as such, clearly disclose on whose behalf they are made, and contain the necessary information to enable recipients to request cessation free of charge and at any time.
3. Each Party shall provide recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraphs 1 and 2.
Article 8.80. Cooperation on Electronic Commerce
1. The Parties shall, where appropriate, cooperate and participate actively in multilateral fora to promote the development of electronic commerce.
2. The Parties agree to maintain a dialogue on regulatory matters relating to electronic commerce with a view to sharing information and experience, as appropriate, including on related laws, regulations and their implementation, and best practices with respect to electronic commerce, in relation to, inter alia:
(a) consumer protection;
(b) cybersecurity;
(c) combatting unsolicited commercial electronic messages;
(d) the recognition of certificates of electronic signatures issued to the public;
(e) challenges for small and medium-sized enterprises in the use of electronic commerce;
(f) the facilitation of cross-border certification services;
(g) intellectual property; and
(h) electronic government.