Article 7.4. NATIONAL TREATMENT
1. In the sectors inscribed in its Annex III (Schedule of Specific Commitments on Trade in Services), and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers. (2)
2. A Party may meet the requirement in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment by a Party shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 7.5. MARKET ACCESS
1. With respect to market access through the modes of supply identified in Article 7.2 (Definitions), each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in Annex II (Schedule of Specific Commitments on Trade in Services). (3)
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annex III (Schedule of Specific Commitments on Trade in Services), are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the tequirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (4)
(d) limitations on 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;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 7.6. MOST-FAVOURED-NATION TREATMENT
1. Without prejudice to measures taken in accordance with Article VII of the GATS, and except as provided for in its List of MFN Exemptions contained in Annex III (Schedules of Specific Commitments on Trade in Services), each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of the other Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-Party. (5)
2. Treatment granted under other existing or future agreements concluded by a Party and notified under Article V or Article V bis of the GATS shall not be subject to paragraph 1.
3. If a Party concludes or amends an agreement of the type referred to in paragraph 2, it will, upon request from the other Party, accord due consideration to extend to the other Party treatment no less favourable than that provided under that agreement. The former Party shall, upon request from the other Party, afford adequate opportunity to the other Party to negotiate the incorporation into this Agreement of a treatment no less favourable than that provided under the former agreement.
4. The provisions of this Chapter shall not be so construed as to prevent a Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.
Article 7.7. ADDITIONAL COMMITMENTS
A Party may also negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 7.4 (National Treatment) and 7.5 (Market Access), including but not limited to those regarding qualification, standards or licensing matters. Such commitments shall be inscribed in Annex III (Schedule of Specific Commitments on Trade in Services) .
Section C. Other Provisions
Article 7.8. DOMESTIC REGULATION
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2.
(a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, on request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. Where authorisation is required for the supply of a service on which a specific commitment under this Agreement has been made, the competent authorities of a Party shall:
(a) in the case of an incomplete application, at the request of the applicant, promptly identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) 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;
(c) at the request of the applicant, without undue delay, provide information concerning the status of the application; and
(d) if an application is terminated or denied, to the maximum extent possible, inform the applicant in writing and without delay the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
4. 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, the Parties shall jointly review the results of the negotiations on disciplines on these measures pursuant to paragraph 4 of Article VI of the GATS, with a view to their incorporation into this Agreement. The Parties note that such disciplines aim to ensure that such requirements are, inter alia:
(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.
5.
(a) Pending the incorporation of the disciplines referred to in paragraph 4, for sectors where a Party has undertaken specific commitments and subject to terms, limitations, conditions, or qualifications set out therein, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair its obligation under this Agreement in a manner which:
(i) does not comply with the criteria outlined in subparagraphs 4(a), (b) or (c); and
(ii) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under subparagraph 5(a), account shall be taken of international standards of relevant international organisations (6) applied by that Party.
6. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party in accordance with provisions of paragraph 5.
7. A Party shall, in accordance with its laws and regulations, permit services suppliers of the other Party to use enterprise names under which they trade in the territory of the other Party.
Article 7.9. RECOGNITION
1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise, or encourage its relevant competent bodies to recognise, the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or their relevant competent bodies, or maybe accorded autonomously.
2. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted in the territory of a non-Party, nothing in Article 7.6 (Most- Favoured-Nation Treatment) shall be construed to automatically require the Party to accord such recognition to the education or experience obtained, requirements met, or licences 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 2, whether existing or in the future, shall afford the other Party adequate opportunity to negotiate its accession to such an agreement or arrangement or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education, experience, licences or certifications obtained or requirements met in that other Party should also be recognised.
4. After the entry into force of this Agreement, the Parties shall ensure that their relevant professional bodies negotiate and conclude, as soon as the date of entry into force of this Agreement, any such agreement or arrangement providing mutual recognition of the education or experience obtained, qualification requirements and procedures and licensing requirements and procedures.
5. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-Parties in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
6. In respect of regulated service sectors, other than those mentioned in paragraph 4, upon a request being made in writing by a Party to the other Party in such sectors, the Parties shall encourage that their respective professional bodies negotiate, in that service sector, agreements for mutual recognition of education, or experience obtained, qualifications requirements and procedures, and licensing requirements and procedures in that service sector, with a view to the achievement of early outcome.
Article 7.10. QUALIFICATIONS RECOGNITION COOPERATION
1. The Parties agree to encourage, where possible, the relevant bodies in their respective territories responsible for issuance and recognition of vocational qualifications to strengthen cooperation and to explore possibilities for mutual recognition of respective vocational qualifications.
2. The Parties may discuss, as appropriate, relevant bilateral, plurilateral and multilateral agreements relating to vocational services.
Article 7.11. PAYMENTS AND TRANSFERS
1. Except in the circumstances envisaged in Article 7.18 (Restrictions to Safeguard the Balance of Payment), a Party shall not apply any restriction on international transfers and payments for current transactions relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties as members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose any restriction on any capital transaction inconsistently with its specific commitments regarding such transaction, except under Article 7.18 (Restrictions to Safeguard the Balance of Payment), or at the request of the Fund.
Article 7.12. TRANSPARENCY
1. Each Party shall ensure that:
(a) regulatory decisions, including the basis for such decisions, are promptly published or otherwise made available to all interested persons; and
(b) its measures relating to public networks or services are made publicly available, including the requirements, if any, for permits.
2. Each Party shall ensure that, where a licence is required, all measures relating to the licensing of suppliers of public networks or services are made publicly available, including:
(a) the circumstances in which a licence is required;
(b) all applicable licencing procedures;
(c) the period of time normally required to reach a decision concerning a licence application;
(d) the cost of, or fees for applying for, or obtaining, a licence; and (e) the period of validity of a licence.
3. Each Party shall, in accordance with its laws and regulations, ensure that, on request, an applicant receives reasons for the denial of, revocation of, refusal to renew, or the imposition or modification of conditions on, a licence.
4. The provisions of this Chapter shall not require any Party to disclose confidential information that would impede law enforcement or otherwise be contrary to public interest or which would prejudice the legitimate commercial interest of particular enterprises, public or private.
Article 7.13. CONTACT POINTS
Each Party shall designate one or more contact points to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendment to the details of their contact points.
Article 7.14. MONOPOLIES AND EXCLUSIVE SERVICE SUPPLIERS
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under specific commitments in its Schedule in Annex II (Schedule of Specific Commitments on Trade in Services).
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments in its Schedule in Annex If (Schedule of Specific Commitments on Trade in Services), the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. Ifa Party has reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraph 1 or 2, that Party may request the other Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. If, after the date of entry into force of this Agreement, a Party grants monopoly rights regarding the supply of a service covered by its specific commitments in its Schedule in Annex II,(Schedule of Specific Commitments on Trade in Services), it shall notify the other Party no later than three months before the intended implementation of the grant of monopoly rights, and paragraphs 1(b) and 2 of Article 7.22(Modification of Schedules) shall apply.
5. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among such suppliers in its territory.
Article 7.15. BUSINESS PRACTICES
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 7.11 (Payments and Transfers), may restrain competition and thereby restrict trade in services.
2. _ A Party shall, at the request of the other Party ("requesting Party"), enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed ("requested Party") shall accord full and sympathetic consideration to such a request and shall co-operate through the supply of publicly available non-confidential information of relevance to the matter in question. The requested Party shall also provide other information available to the requesting Party, in accordance with its domestic law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 7.16. SAFEGUARD MEASURES
The Parties note the multilateral negotiations pursuant to Article X of the GATS on the question of emergency safeguard measures based on the principle of non-discrimination. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Chapter so as to incorporate the results of such multilateral negotiations.
Article 7.17. SUBSIDIES
1. The Parties note the multilateral negotiations pursuant to Article XV of the GATS on the question of subsidies. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Chapter so as to incorporate the results of such multilateral negotiations.
2. Where a Party considers that it is adversely affected by a subsidy of the other Party, it may request consultations with that Party. Such requests shall be accorded sympathetic consideration.
Article 7.18. RESTRICTIONS TO SAFEGUARD THE BALANCE OF PAYMENTS
1. In the event of serious balance of payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services in respect of which it has undertaken specific commitments, including on payments or transfers for transactions relating to such commitments. It is recognised that particular pressures on the balance of payments of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.
2. The restrictions referred to in paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied in such a manner that the other Party is treated no less favourably than any country that is not a Party to this Agreement.
3. In determining the incidence of such restrictions, the Parties may give priority to the supply of services which are more essential to their economic development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
4. Any restriction adopted or maintained under paragraph 1, or any change therein, shall be promptly notified to the other Party.
Article 7.19. DISCLOSURE OF CONFIDENTIAL INFORMATION
Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, be in breach of its laws and regulations or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 7.20. GENERAL EXCEPTIONS
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties, or a disguised restriction on trade in services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by a Party of measures:
(a) necessary to protect public morals or to maintain public order;(7)
(b) necessary to protect human, animal, or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety; or
(d) inconsistent with Article 7.4 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective imposition or collection of direct taxes in respect of services or service suppliers of the other Party.
Article 7.21. SECURITY EXCEPTIONS
1. Nothing in this Chapter shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. Each Party shall inform the other Party to the fullest extent possible of measures taken under paragraphs 1(b) and (c) and of their termination.
Article 7. MODIFICATION OF SCHEDULES
1. A Party (referred to in this Article as the "modifying Party") may modify or withdraw any commitment in its Schedule at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article, provided that:
(a) it notifies the other Party (referred to in this Article as the "affected Party") of its intention to modify or withdraw a commitment no later than three months before the intended date of implementation of the modification ot withdrawal; and
(b) At the request of the other Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment.
2. In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is not less favourable to trade than provided for in its Schedule in Annex II (Schedule of Specific Commitments on Trade in Services) prior to such negotiations.
3. The Parties shall endeavour to conclude negotiations on such compensatory adjustment to the satisfaction of both Parties within a mutually agreed timeframe, failing which the matter may be resolved in accordance with the provisions of Chapter 15 (Dispute Settlement) of this Agreement.
4. The modifying Party may not modify or withdraw its commitment until it has made the compensatory adjustments in conformity with the findings of the arbitral tribunal in accordance with paragraph 3 of this Article.
5. If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the arbitral tribunal, the affected Party may modify or withdraw substantially equivalent benefits in conformity with the findings of the arbitral tribunal.
Article 7.23. REVIEW
1. The Parties shall consult within two years of the date of entry into force of this Agreement and every two years thereafter, or as otherwise agreed, to review the implementation of this Chapter and consider other trade in services issues of mutual interest, with a view to the progressive liberalisation of the trade in services between them on a mutually advantageous basis.
2. Upon request by a Party, and with the consent of the other Party, they may proceed to review this Chapter and specifically its Schedule in Annex III (Schedule of Specific Commitments on Trade in Services), with the view to facilitating the reduction and elimination of adverse effects on trade in services.
3. Where a Party unilaterally liberalises a measure affecting market access of a service supplier or suppliers of the other Party, the other Party may request consultations to discuss the measure. Following such consultations, if the Parties agree to incorporate the liberalised measure into the Agreement as a new commitment, the relevant Schedule in Annex III (Schedule of Specific Commitments on Trade in Services) shall be amended.
4. The supply of any service which are not technically or technologically feasible when this Agreement comes into force shall, when it becomes feasible, also be considered for possible incorporation at future reviews or at the request of either Party immediately.
Article 7.24. DENIAL OF BENEFITS
1. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is a juridical person:
(a) owned or controlled by persons of a non-Party or of the denying Party; and
(b) who does not meet the requirement of âjuridical person of a Partyâ provided in Article 7.2 of this Chapter.
ANNEX A. FINANCIAL SERVICES
Article 1. SCOPE
1. This Annex provides for measures additional to Chapter 7 (Trade in Services) in relation to financial services.
2. This Annex applies to measures affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply ofa financial service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to the service consumer of the other Party;
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party; or
(d) by a service supplier of a Party, through presence of natural persons of that Party in the territory of the other Party.
Article 2. DEFINITIONS
1. For the purposes of this Annex, "services supplied in the exercise of governmental authority" as referred to in Chapter 7 (Trade in Services) of this Agreement means the following:
(a) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; or
(c) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the government, except where a Party allows the activities referred to in paragraph 1(b) or paragraph 1(c) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier.