(x) supply of a service includes the production, distribution, marketing, sale and delivery of a service;
(y) trade in services is defined as the supply of a service:
(i) from the territory of a Party into the territory of the other Party;
(ii) in the territory of a Party to the service consumer of the other Party;
(iii) by a service supplier of a Party, through commercial presence in the territory of the other Party;
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party; and
(z) traffic rights mean the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.
Article 9.2. Scope and Coverage
1. This Chapter applies to measures by a Party affecting trade in services.
2. In fulfilling its obligations and commitments under the Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non- governmental bodies within its territory.
3. This Chapter shall not apply to:
(a) government procurement;
(b) services supplied in the exercise of governmental authority;
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance;
(d) measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, citizenship, residence or employment on a permanent basis; and
(e) measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(iv) airport operation services;
(v) specialty air services; or
(vi) ground-handling services.
4. For greater certainty, Annex 9A (Financial Services), Annex 9B (Telecommunications Services), Annex 9C (Foreign Investment Framework for Australia), Annex 9C (Foreign Investment Framework for UAE), Annex 9D (Schedules of Specific Commitments) and Annex 9E (Schedules of Non- Conforming Measures and Reservations) are an integral part of this Chapter.
Article 9.3. Scheduling of Commitments
1. Each Party shall make commitments under Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access) in accordance with either Article 9.8 (Schedules of Specific Commitments) or Article 9.9 (Schedules of Non-Conforming Measures and Reservations).
2. A Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) shall make commitments under the applicable paragraphs in Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), and Article 9.6 (Market Access). A Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) may also make commitments under Article 9.10 (Additional Commitments).
3. A Party making commitments in accordance with Article 9.9 (Schedules of Non- Conforming Measures and Reservations) shall make commitments under the applicable paragraphs in Article 9.4 (National Treatment), Article 9.5 (Most- Favoured-Nation Treatment), Article 9.6 (Market Access) and Article 9.7 (Local Presence). A Party making commitments in accordance with Article 9.9 (Schedules of Non-Conforming Measures and Reservations) may also make commitments under Article 9.10 (Additional Commitments).
Article 9.4. National Treatment
1. A Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) shall, in the sectors inscribed in its Schedule in Annex 9D (Schedules of Specific Commitments) and subject to any conditions and qualifications set out therein, 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 it accords to its own like services and service suppliers. (3)
2. A Party making commitments in accordance with Article 9.9 (Schedules of Non- Conforming Measures and Reservations) 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, subject to its non-conforming measures and reservations as provided in Article 9.9 (Schedules of Non-Conforming Measures and Reservations). (4)
3. A Party may meet the requirement under paragraph 1 or 2 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.
4. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
Article 9.5. Most-Favoured-Nation Treatment
1. A Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) shall, in respect of the sectors and subsectors set out in the Most-Favoured-Nation Treatment Sectoral Coverage Appendix to its Schedule in Annex 9D (Schedules of Specific Commitments) and subject to any conditions and qualifications set out therein, accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-party.
2. A Party making commitments in accordance with Article 9.9 (Schedules of Non- Conforming Measures and Reservations) shall, subject to its non-conforming measures and reservations set out in its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations), accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-party.
3. Notwithstanding paragraphs 1 and 2, each Party reserves the right to adopt or maintain any measure that accords differential treatment to services and service suppliers of any non-party under any bilateral or multilateral international agreement in force at, or signed prior to, the date of entry into force of this Agreement.
4. For sectors and subsectors either not set out in a Party’s Most-Favoured-Nation Treatment Sectoral Coverage Appendix to its Schedule in Annex 9D (Schedules of Specific Commitments) pursuant to paragraph 1, or subject to a Party’s non- conforming measures and reservations set out in its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations) pursuant to paragraph 2, if, after the date of entry into force of this Agreement, a Party subsequently enters into any agreement with a non-party in which it provides treatment to services or service suppliers of that non-party more favourable than it accords to like services or service suppliers of the other Party, the other Party may request consultations to discuss the possibility of extending, under this Agreement, treatment no less favourable than that provided under the agreement with the non-party. In such circumstances, the Parties shall enter into consultations bearing in mind the overall balance of benefits.
Article 9.6. Market Access
1. With respect to market access through the modes of supply identified in subparagraph (y) of Article 9.1 (Definitions), a Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) 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 its Schedule in Annex 9D (Schedules of Specific Commitments). (5)
2. The measures which a Party shall not adopt or maintain either on the basis of a regional subdivision or on the basis of its entire territory, either in sectors where market access commitments are undertaken and in accordance with its specific commitments, as provided in Article 9.8 (Schedules of Specific Commitments), or subject to its non-conforming measures and reservations, as provided in Article 9.9 (Schedules of Non-Conforming Measures and Reservations), are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements 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; (6)
(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 9.7. Local Presence
A Party making commitments in accordance with Article 9.9 (Schedules of Non- Conforming Measures) shall not require a service supplier of the other Party to establish or maintain a representative office, a branch, or any form of juridical person, or to be resident, in its territory as a condition for the supply of a service as described in subparagraphs (y)(i), (ii), or (iv) of Article 9.1 (Definitions), subject to its non-conforming measures as provided in Article 9.9 (Schedules of Non-Conforming Measures).
Article 9.8. Schedules of Specific Commitments
1. A Party making commitments in accordance with this Article shall set out in its Schedule in Annex 9D (Schedules of Specific Commitments), the specific commitments it undertakes under Article 9.4 (National Treatment), Article 9.6 (Market Access), and Article 9.10 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule in Annex 9D (Schedules of Specific Commitments) shall specify:
(a) terms, limitations, and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments; and
(d) where appropriate, the timeframe for implementation of such commitments.
2. Measures inconsistent with both Article 9.4 (National Treatment) and Article 9.6 (Market Access) shall be inscribed in the column relating to Article 9.6 (Market Access). In this case, the inscription shall be considered to provide a condition or qualification to Article 9.4 (National Treatment) as well.
Article 9.9. Schedules of Non-Conforming Measures and Reservations
1. For a Party making commitments in accordance with this Article, Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access), and Article 9.7 (Local Presence) shall not apply to:
(a) any existing non-conforming measure that is maintained by that Party at:
(i) the central level of government, as set out by that Party in Part A of its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations);
(ii) a regional level of government, as set out by that Party in Part A of its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations); or
(iii) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); and
(c) an amendment to any non-conforming measure referred to in subparagraph (a), to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access) or Article 9.7 (Local Presence).
2. Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access), and Article 9.7 (Local Presence) shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub- sectors, or activities set out in Part B of its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations).
Article 9.10. Additional Commitments
1. The Parties may negotiate commitments with respect to measures affecting trade in services, including those regarding qualifications, standards, or licensing matters, not subject to scheduling, under:
(a) Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), or Article 9.6 (Market Access), for a Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitment); or
(b) Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access), or Article 9.7 (Local Presence) for a Party making commitments in accordance with Article 9.9 (Schedules of Non-Conforming Measures and Reservations).
2. A Party making additional commitments under subparagraph 1(a) shall inscribe such commitments in its Schedule in Annex 9D (Schedules of Specific Commitments).
3. A Party making additional commitments under subparagraph 1(b) shall inscribe such commitments in List C of its Schedule in Annex 9E (Schedules of Non- Conforming Measures and Reservations).
Article 9.11. Modification of Schedules
1. Except as provided in paragraph 2, a Party (“modifying Party”) may modify or withdraw any commitment in its Schedule in Annex 9D (Schedules of Specific Commitments) at any time after three years from the date on which that commitment entered into force, provided that:
(a) it notifies the other Party (“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 or withdrawal;
(b) upon notification of a Party’s intent to make such modification or withdrawal, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment; and
(c) such an agreement between the Parties has been reached.
2. In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is no less favourable to trade than provided for in the Schedules in Annex 9D (Schedules of Specific Commitments) prior to such negotiations.
3. If agreement under paragraph 1(c) is not reached between the modifying Party and the affected Party within three months, the modifying Party may refer the matter to a panel in accordance with the procedures set out in Chapter 25 (Dispute Settlement) or, where agreed between the Parties, to an alternative arbitration procedure. The modifying Party may modify or withdraw a commitment once it has made the compensatory adjustments in conformity with the findings of the panel.
4. If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the panel, the affected Party may modify or withdraw substantially equivalent benefits in conformity with the findings of the panel.
Article 9.12. Transparency
1. The Parties recognise that transparent measures governing trade in services are important in facilitating the ability of service suppliers to gain access to, and operate in, each other’s markets. Each Party shall promote regulatory transparency in trade in services.
2. For sectors and subsectors set out in a Party’s Schedule in Annex 9D (Schedules of Specific Commitments), or subject to a Party’s non-conforming measures and reservations set out in its Schedule in Annex 9E (Schedules of Non-Conforming Measures and Reservations, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
3. Each Party shall publish promptly, or otherwise make publicly available, and, except in emergency situations, at the latest by the time of their entry into force:
(a) all relevant measures of general application which pertain to or affect the operation of this Chapter; and
(b) all international agreements pertaining to or affecting trade in services to which the Party is a signatory.
4. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall publish in advance, or otherwise make publicly available in advance, any measures of general application affecting trade in services that it proposes to adopt which significantly affect trade in services covered by this Chapter.
5. Each Party shall respond promptly to any request by the other Party for specific information on:
(a) any measures referred to in paragraph 3(a) or international agreements referred to in paragraph 3(b); and
(b) any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services.
Article 9.13. Domestic Regulation
1. Subject to paragraph 2, this Article applies to measures of a Party relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards affecting trade in services.
2. This Article does not apply to a sector or measure to the extent that such sector or measure is not subject to Article 9.4 (National Treatment) or Article 9.6 (Market Access) by reason of a Party’s commitments made in accordance with either Article 9.8 (Schedules of Specific Commitments) or Article 9.9 (Schedules of Non-Conforming Measures and Reservations).
3. If a Party adopts or maintains measures relating to the authorisation for the supply of a service, the Party shall ensure that:
(a) such measures are based on objective and transparent criteria; (7)
(b) the procedures are impartial, and that the procedures are adequate for applicants to demonstrate whether they meet the requirements, if such requirements exist;
(c) the procedures do not in themselves unjustifiably prevent the fulfilment of requirements; and
(d) such measures do not discriminate between men and women. (8)
4. If a Party requires authorisation for the supply of a service, the Party shall promptly publish, (9) or otherwise make publicly available in writing, the information necessary for service suppliers or persons seeking to supply a service to comply with the requirements and procedures for obtaining, maintaining, amending and renewing such authorisation. Such information shall include, inter alia, where it exists:
(a) the requirements and procedures;
(b) contact information of relevant competent authorities;
(c) fees;
(d) technical standards;
(e) procedures for appeal or review of decisions concerning applications;
(f) procedures for monitoring or enforcing compliance with the terms and conditions of licenses or qualifications;
(g) opportunities for public involvement, such as through hearings or comments; and
(h) indicative timeframes for processing of an application.
5. Each Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorisation. If a service is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.
6. If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities, to the extent practicable, permit submission of an application at any time throughout the year. (10) If a specific time period for applying exists, the Party shall ensure that the competent authorities allow a reasonable period for the submission of an application.
7. If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities:
(a) taking into account their competing priorities and resource constraints, endeavour to accept applications in electronic format; and
(b) accept copies of documents, that are authenticated in accordance with the Party’s domestic laws and regulations, in place of original documents, unless the competent authorities require original documents to protect the integrity of the authorisation process.
8. If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities:
(a) to the extent practicable, provide an indicative timeframe for processing of an application;
(b) at the request of the applicant, provide without undue delay information concerning the status of the application;
(c) to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party’s domestic laws and regulations;
(d) if they consider an application complete for processing under the Party’s domestic laws and regulations, (11) within a reasonable period of time after the submission of the application ensure that:
(i) the processing of the application is completed; and
(ii) the applicant is informed of the decision concerning the application, (12) to the extent possible in writing; (13)
(e) if they consider an application incomplete for processing under the Party’s domestic laws and regulations, within a reasonable period of time, to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant, identify the additional information required to complete the application, or otherwise provide guidance on why the application is considered incomplete; and
(iii) provide the applicant with the opportunity (14) to provide the additional information that is required to complete the application,
however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they so inform the applicant within a reasonable period of time; and
(f) if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant of the reasons for rejection and, if applicable, the procedures for resubmission of an application. An applicant should not be prevented from submitting another application (15) solely on the basis of a previously rejected application.
9. The competent authorities of a Party shall ensure that authorisation, once granted, enters into effect without undue delay, subject to applicable terms and conditions.(16)
10. Each Party shall ensure that the authorisation fees (17) charged by its competent authorities are reasonable, transparent, based on authority set out in a measure, and do not in themselves restrict the supply of the relevant service.
11. If a Party requires an examination for authorisation for the supply of a service, that Party shall ensure that its competent authorities schedule such an examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination. Having regard to the cost, administrative burden, and the integrity of the procedures involved, the Parties are encouraged to accept requests in electronic format to take such examinations, and to consider, to the extent practicable, the use of electronic means in other aspects of examination processes.
12. If a Party adopts or maintains measures relating to the authorisation for the supply of a service, the Party shall ensure that its competent authorities reach and administer their decisions in a manner independent from any supplier of the service for which authorisation is required.(18)
13. Each Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage any body, including relevant international organisations, (19) designated to develop technical standards, to use open and transparent processes.
Article 9.14. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to paragraph 3, 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 a non-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 may be accorded autonomously.
2. If 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 9.5 (Most-Favoured- Nation Treatment) shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party.
3. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-party of the type referred in paragraph 1, that Party shall afford the other Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, 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’s territory should also be recognised.
4. 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.