Article 9.15. Professional Services
1. The Parties recognise that professional services play an essential role in facilitating trade and investment across both goods and services sectors and in promoting economic growth and business confidence.
2. Each Party shall endeavour to encourage its relevant professional service bodies to strengthen cooperation and establish dialogues with the relevant professional service bodies of the other Party with a view to:
(a) sharing knowledge and expertise in advancing the development of best practice in accreditation, licensing and regulation of professions;
(b) pursuing mutually acceptable standards and criteria for accreditation, licensing and registration with respect to professional service sectors; and
(c) streamlining the recognition of professional qualifications and licensing or registration procedures, including through the negotiation of mutual recognition or similar arrangements in professional services sectors of mutual interest.
3. Each Party shall encourage its relevant professional service bodies to consider, where appropriate, existing international frameworks - both plurilateral and multilateral - that relate to professional services as pathways to mutual recognition or similar arrangements.
4. In accordance with its laws and regulations, each Party shall encourage relevant professional service bodies to consider implementing procedures that:
(a) allow for the temporary, or project-specific licensing of professional service suppliers of the other Party. Such a regime should not operate to prevent a professional of the other Party from gaining a local licence once that professional satisfies the applicable local licensing requirements; and
(b) permits professional services firms of the other Party, respecting conventions of the Party (“host Party”) on the use of firm names, to use a firm name of their choice in the host Party’s jurisdiction.
5. Each Party shall encourage its relevant professional service bodies to administer policy and processes in a manner that is as transparent and streamlined as possible.
6. Further to Article 9.20 (Review), the Parties shall review the progress of implementing this Article and consider initiatives to further promote the recognition of professional qualifications, registration and temporary licensing, including through the possible negotiation of a separate Annex on Professional Services.
7. Nothing in this Article shall prevent a Party from requiring that natural persons possess the necessary qualifications, professional experience, credentials, or other criteria specified under each Party’s laws and regulations in the jurisdiction of the Party where the service is supplied.
Article 9.16. Payments and Transfers
1. Except under circumstances envisaged in Article 24 4 (Restrictions to Safeguard the Balance of Payments - General Provisions and Exceptions), a Party shall not apply restrictions on international transfers and payments for current transactions relating to its commitments.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties as members of the International Monetary Fund (IMF) under the IMF Articles of Agreement, including the use of exchange actions which are in conformity with the IMF Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations regarding such transactions, except under Article 24.4 (Restrictions to Safeguard the Balance of Payments - General Provisions) or at the request of the IMF.
Article 9.17. Monopolies and Exclusive Service Suppliers
1. A Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) or Article 9.9 (Schedules of Non-Conforming Measures and Reservations) 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 the Party’s obligations under Article 9.4 (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment), Article 9.6 (Market Access), and for a Party making commitments in accordance with Article 9.9 (Schedules of Non-Conforming Measures and Reservations), Article 9.7 (Local Presence), subject to any conditions or qualifications set out in Annex 9D (Schedules of Specific Commitments) or except as provided for in Annex 9E (Schedules of Non-Conforming Measures and Reservations).
2. Where a Party’s monopoly supplier of a service 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 obligations under Article 9.4, (National Treatment), Article 9.5 (Most-Favoured-Nation Treatment) or Article 9.6 (Market Access), which are subject to any conditions or qualifications set out in Annex 9D (Schedules of Specific Commitments) or non-conforming measures set out in Annex 9E (Schedules of Non-Conforming Measures and Reservations); that Party shall ensure that such supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such obligations.
3. If a Party has reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraphs 1, 2 or 3, it may request the other Party establishing, maintaining or authorising such monopoly supplier to provide information concerning the supplier’s relevant operations in its territory.
4. 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 those suppliers in its territory.
Article 9.18. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 9.17 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. Each Party shall, on request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The requested Party shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The requested Party may also provide other information available to the requesting Party, subject to its laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 9.19. Denial of Benefits
1. A Party may deny the benefits of this Chapter:
(a) to the supply of any service, if it establishes that the service is supplied from or in the territory of a non-party;
(b) to a service supplier that is a juridical person, if it establishes that it is not a service supplier of the other Party;
(c) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(i) by a vessel registered under the laws and regulations of a non-party; and
(ii) by a person of a non-party which operates or uses the vessel in whole or in part.
2. A Party may deny the benefit of this Chapter to a service supplier of the other Party, if the service supplier is a juridical person owned or controlled by persons of a non-party, and the denying Party adopts or maintains measures with respect to the non-party or a person of the non-party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person.
3. 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 owned or controlled by persons of a non-party or of the denying Party that has no substantial business activities in the territory of the other Party.
Article 9.20. Review
1. In any review of this Agreement conducted in accordance with Article 26.5 (Final Provisions), the Parties shall review this Chapter and related Annexes and Schedules so as to progressively liberalise trade in services between the Parties.
2. Further to paragraph 1, the Parties shall review their approach to the scheduling of commitments in accordance with Article 9.8 (Scheduling of Commitments), including whether a Party making commitments in accordance with Article 9.8 (Schedules of Specific Commitments) considers its appropriate to transition to making commitments in accordance with Article 9.9 (Schedules of Non- Conforming Measures).
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 shall be amended.
Annex 9A. FINANCIAL SERVICES
Article 9A.1. Definitions
For the purposes of this Annex:
(a) financial service means any service of a financial nature, including all insurance and insurance-related services, all banking and other financial services (excluding insurance), and services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
Insurance and insurance-related services
(i) direct insurance (including co-insurance):
(A) life; and
(B) non-life;
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency;
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services;
Banking and other financial services (excluding insurance)
(v) acceptance of deposits and other repayable funds from the public;
(vi) lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(vii) financial leasing;
(viii) all payment and money transmission services, including credit, charge and debit cards, travellers cheques, and bankers drafts;
(ix) guarantees and commitments;
(x) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps and forward rate agreements;
(E) transferable securities; or
(F) other negotiable instruments and financial assets, including bullion;
(xi) 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;
(xii) money broking;
(xiii) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(xiv) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xv) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(xvi) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (v) through (xv), 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 person or juridical person of a Party seeking to supply or supplying financial services but the term “financial service supplier” does not include a public entity;
(c) new financial service means a financial service, 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) 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 monetary authority, when exercising those functions; and
(e) self-regulatory organisation means any non-governmental body, including any securities or futures exchange or market, clearing or settlement agency, or other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by legislation or delegation from central, regional or local governments or authorities. (1)
Article 9A.2. Scope
1. This Annex shall apply to measures taken by a Party affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in subparagraph (x) of Article 9.1 (Definitions – Trade in Services).
2. For the purposes of this Annex, “services supplied in the exercise of governmental authority” as referred to in subparagraph (r) of Article 9.1 (Definitions – Trade in Services) 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; (2)
(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.
3. If a Party allows any of the activities referred to in subparagraph (b) or (c) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, “services” shall include such activities.
4. The definition of “service supplied in the exercise of government authority” in subparagraph (v) of Article 9.1 (Definitions – Trade in Services) shall not apply to services covered by this Annex.
5. Article 9.7 (Local Presence – Trade in Services) shall not apply to services covered by this Annex.
6. In the event of any inconsistency between this Annex and any other provision in this Agreement, this Annex shall prevail to the extent of the inconsistency.
Article 9A.3. Financial Services Exceptions
1. For greater certainty, nothing in this Annex shall be construed to prevent a Party from adopting or enforcing measures necessary to secure compliance with laws or regulations that are not inconsistent with this Annex, including those relating to the prevention of deceptive and fraudulent practices or to deal with the effects of a default on financial services contracts, 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 between the Parties and non-Parties where like conditions prevail, or a disguised restriction on trade in financial services.
2. For greater certainty, in accordance with Article 9A.2 (Scope) of this Annex, Chapter 9 (Trade in Services) shall not apply to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies within the territory of each Party.
3. Chapter 9 (Trade in Services) shall not apply to non-discriminatory measures of general application taken by any public entity in pursuit of related credit policies. This paragraph shall not affect a Party’s obligations under Article 9.16 (Payments and Transfers – Trade in Services).
4. Notwithstanding Article 9.16 (Payments and Transfers – Trade in Services) a Party may prevent or limit transfers by a financial service supplier to, or for the benefit of, an affiliate of or person related to such institution or supplier through the equitable, non-discriminatory and good faith application of measures relating to maintenance of the safety, soundness, integrity, or financial responsibility of financial service suppliers. This paragraph does not prejudice any other provision of this Agreement that permits a Party to restrict transfers.
Article 9A.4. Prudential Measures
Notwithstanding any other provision of this Agreement except for Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Trade Facilitation), Chapter 6 (Sanitary and Phytosanitary Measures), and Chapter 8 (Technical Barriers to Trade), a Party shall not be prevented from adopting or maintaining measures for prudential reasons, (3) including for the protection of investors, depositors, policy-holders, or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement to which this exception applies, they shall not be used as a means of avoiding the Party’s commitments or obligations under those provisions.
Article 9A.5. Financial Services New to the Territory of a Party
Each Party shall permit a financial service supplier of the other Party established in its territory, to supply a new financial service of a type similar to those services it would permit its own financial service suppliers to supply, in like circumstances, subject to its applicable laws and regulations. A Party may determine the institutional or juridical form through which the new financial services may be supplied and may require authorisation for the supply of such services. Where a Party requires such authorisation of the new financial services, it shall provide its decision within a reasonable time.
Article 9A.6. Treatment of Financial Services Information
Nothing in this Agreement shall be construed to require 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 9A.7. Recognition of Prudential Measures
1. A Party may recognise prudential measures of any international standard setting body,4 the other Party, or a non-party in determining how the Party’s measures relating to financial services shall be applied.5 Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the international standard setting body, the other Party, or the non-party concerned, or may be accorded autonomously.
2. Where a Party is a party to such an agreement or arrangement referred to in paragraph 1, whether future or existing, that Party, shall provide adequate opportunity for the other Party to negotiate accession to such an agreement or arrangements, or to negotiate a comparable agreement or arrangement with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement.
3. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances as referred to in paragraph 2 exist.
4 “International standard setting body” refers to international standard setting bodies whose membership is open to the relevant bodies of at least both Parties.
5 For greater certainty, nothing in Article 9.5 (Most-Favoured-Nation Treatment – Trade in Services) shall be construed to require the Party to accord such recognition to prudential measures of the other Party.
Article 9A.8. Self-Regulatory Organisations
If a Party requires a financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organisation to supply a financial service in or into the territory of that Party, or when the Party provides privileges or advantages directly or indirectly to financial service suppliers supplying financial services through a self-regulatory organisation, then the requiring Party shall ensure that the self-regulatory organisation observes the obligations contained in Article 9.4 (National Treatment – Trade in Services) and Article 9.5 (Most-Favoured-Nation Treatment – Trade in Services).
Article 9A.9. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant financial service suppliers of the other Party, established in its territory through commercial presence as defined in subparagraph (c) of Article 9.1 (Definitions – Trade in Services), 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.(6)
Article 9A.10. Shariah-Compliant Financial Services
The Parties recognise that a Shariah-compliant financial service is a financial service for the purposes of Article 9A.1 (Definitions). Accordingly, each Party shall consider applications by financial service suppliers of the other Party established in its territory through commercial presence as defined in subparagraph (c) of Article 9.1 (Definitions – Trade in Services) to supply such services in its territory, on an equal basis as any other application to supply financial services, consistent with its laws and regulations including any regulatory or supervisory requirements, and in accordance with its commitments and obligations under this Annex.
Article 9A.11. Sustainable Finance
1. The Parties recognise the importance of international cooperation to facilitate the inclusion of environmental, social, and governance considerations in investment decision-making and other business activities, in order, thereby, to increase investment in sustainable activities.
2. The inclusion of environmental considerations in investment decision-making and other business activities involves, inter alia, the assessment and pricing of climate-related risks and opportunities, and the exploration of environmental and sustainable projects and infrastructure.
3. The Parties acknowledge the importance of encouraging financial service suppliers to develop an approach to managing climate-related financial risks. Specifically, the Parties recognise the importance of encouraging the uptake of climate-related financial disclosures for financial service suppliers with material exposure to climate change, including forward-looking information, informed by initiatives in international fora.
4. The Parties shall cooperate in relevant international fora, and where agreeable, in the development and adoption of internationally recognised standards for the inclusion of environmental, social, and governance considerations in investment decision-making and other business activities.
Article 9A.12. Dispute Settlement
Panels established pursuant to Chapter 25 (Dispute Settlement) to examine matters relating to disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service in dispute.
Annex 9B. TELECOMMUNICATIONS SERVICES
Article 9B.1. Definitions
For the purposes of this Annex:
cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
end-user means a final consumer of, or subscriber to, a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
essential facilities means facilities of a public telecommunications 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;
interconnection means linking with suppliers providing public telecommunications 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;
international mobile roaming service means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables an end-user whose mobile handset or other device normally accesses public telecommunication services in the territory of one Party to use their mobile handset or other device for voice, data, or messaging services in the territory of the other Party;
intra-corporate communications means telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to the laws and regulations of a Party, affiliates. For these purposes, the terms “subsidiaries”, “branches” and, where applicable, “affiliates” shall be as defined by each Party. “Intra-corporate communications” in this Annex excludes commercial or non-commercial services that are supplied to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers;
leased circuits means telecommunications facilities between two or more designated points which are set aside for the dedicated use of, or availability to, particular users;
licence means any authorisation, including concessions, permits or registrations, that a Party may require of a person, in accordance with its laws and regulations, in order for that person to offer a public telecommunications network or service;
major supplier means a supplier of public telecommunications 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 networks or services as a result of:
(a) control over essential facilities; or
(b) use of its position in that market;
network element means a facility or equipment used in the provision of a public telecommunications service, including features, functions, and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favourable than that accorded in like circumstances, to users of like public telecommunications networks or services;
number portability means the ability of end-users of public telecommunications services to retain the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
personal information means any information, including data about an identified or identifiable individual;
public telecommunications network means the telecommunications infrastructure used to provide public telecommunications services between and among defined network termination points;
public telecommunications service means any telecommunications service that is offered to the public generally;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with, approved by, or determined by, a telecommunications regulatory authority that sufficiently details the terms, rates, and conditions for interconnection so that a supplier of public telecommunications networks or services that is willing to accept it may obtain interconnection with the major supplier on that basis;
telecommunications means the transmission and reception of signals by any electromagnetic means;
telecommunications dispute resolution body means any body responsible for resolution of disputes concerning telecommunications;
telecommunications regulatory body means any body or bodies responsible under the laws and regulations of a Party for the regulation of telecommunications; and
suppliers of public telecommunications means a licensed operator of a Party.
Article 9B.2. Scope and Coverage
1. This Annex shall apply to:
(a) measures affecting access to and use of public telecommunications networks or services; and
(b) other measures relating to public telecommunications networks or services.