Chapter 4. Customs Procedures
Article 38. Scope
1. This Chapter shall apply to customs procedures required for the clearance of goods traded between the Parties, to promote the following aspects of the customs procedures:
(a) transparency;
(b) simplification and harmonization; and
(c) cooperation and exchange of information.
2. This Chapter shall be implemented by the Parties in accordance with the laws and regulations of each Party and within the available resources of their respective customs authorities.
Article 39. Definitions
For the purposes of this Chapter, the term "customs laws"means such laws and regulations administered and enforced by the customs authority of each Party concerning the importation, exportation, and transit of goods, as they relate to customs duties, charges, and other taxes, or to prohibitions, restrictions, and other similar controls with respect to the movement of controlled items across the boundary of the customs territory of each Party.
Article 40. Transparency
1. Each Party shall ensure that all relevant information of general application pertaining to its customs laws is readily available to any interested person.
2. When information that has been made available must be revised due to changes in its customs laws, each Party shall make the revised information readily available sufficiently in advance of the entry into force of the changes to enable interested persons to take account of them, unless such an advance notice is precluded.
3. At the request of any interested person of the Parties, each Party shall, wherever appropriate, provide, as quickly and as accurately as possible, information relating to the specific customs matters raised by the interested person and pertaining to its customs laws. Each Party shall supply not only the information specifically requested but also any other pertinent information which it considers the interested person should be made aware of.
Article 41. Customs Clearance
1. The Parties shall apply their respective customs procedures in a predictable, consistent, and transparent manner.
2. For prompt customs clearance of goods traded between the Parties, each Party shall:
(a) endeavor to make use of information and communications technology;
(b) simplify its customs procedures;
(c) harmonize its customs procedures, as far as possible, with relevant international standards and recommended practices such as those made under the auspices of the Customs Co-operation Council; and
(d) promote cooperation, wherever appropriate, between its customs authority and:
(i) other national authorities of the Party;
(ii) the trading communities of the Party; and
(iii) the customs authorities of non-Parties.
3. Each Party shall provide affected parties with easily accessible processes of administrative and judicial review of its administrative actions relating to customs matters.
Article 42. Goods In Transit
Each Party shall continue to facilitate customs clearance of goods in transit from or to the other Party in accordance with paragraph 3 of Article V of the GATT 1994.
Article 43. Cooperation and Exchange of Information
1. The Parties shall cooperate and exchange information with each other in the field of customs procedures, including their enforcement against the trafficking of prohibited goods and the importation and exportation of goods suspected of infringing intellectual property rights.
2. Such cooperation and exchange of information shall be implemented as provided for in the Implementing Agreement.
3. Paragraph 3 of Article 6 shall not apply to the exchange of information under this Article.
Article 44. Sub-committee on Customs Procedures
1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Customs Procedures (hereinafter referred to in this Article as "the Sub-Committee") shall be established in accordance with Article 11.
2. The functions of the Sub-Committee shall be:
(a) reviewing the implementation and operation of this Chapter;
(b) reporting the findings of the Sub-Committee to the Joint Committee;
(c) identifying areas, relating to this Chapter, to be improved for facilitating trade between the Parties;and
(d) carrying out other functions as may be delegated by the Joint Committee pursuant to Article 11.
3. The Sub-Committee shall meet at such time and venue as maybe agreed by the Parties.
4. The composition of the Sub-Committee shall be specified in the Implementing Agreement.
Chapter 5. Sanitary and Phytosanitary Measures
Article 45. Scope
This Chapter shall apply to all sanitary and phytosanitary (hereinafter referred to in this Chapter as "SPS") measures of the Parties under the Agreement on the Application of Sanitary and Phytosanitary Measures in Annex 1A to the WTO Agreement(hereinafter referred to in this Agreement as "SPS Agreement"), that may, directly or indirectly, affect trade in goods between the Parties.
Article 46. Reaffirmation of Rights and Obligations
The Parties reaffirm their rights and obligations relating to SPS measures under the SPS Agreement.
Article 47. Enquiry Points
Each Party shall designate an enquiry point which is able to answer all reasonable enquiries from the other Party regarding SPS measures and, if appropriate, to provide the relevant information.
Article 48. Sub-committee on Sanitary and Phytosanitary Measures
1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Sanitary and Phytosanitary Measures (hereinafter referred to in this Article as "the Sub-Committee") shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be:
(a) exchange of information on such matters as occurrences of SPS incidents in the Parties and non-Parties, and change or introduction of SPS-related regulations and standards of the Parties, which may, directly or indirectly, affect trade in goods between the Parties;
(b) science-based consultations to identify and address specific issues that may arise from the application of SPS measures with the objective of achieving mutually acceptable solutions;
(c) consulting on cooperative efforts between the Parties in international for a in relation to SPS measures;
(d) discussing technical cooperation between the Parties on SPS measures with a view to strengthening it;
(e) reviewing the implementation and operation of this Chapter;
(f) reporting the findings of the Sub-Committee to the Joint Committee; and
(g) carrying out other functions as may be delegated by the Joint Committee pursuant to Article 11.
3. The Sub-Committee shall be composed of government officials of the Parties with responsibility for SPS measures.
4. The Sub-Committee shall meet at such time and venue as maybe agreed by the Parties.
5. The Sub-Committee may, if necessary, establish ad hoc technical working groups as its subsidiary bodies relating to a specific area of SPS measures.
Article 49. Non-application of Chapter 13
Chapter 13 shall not apply to this Chapter.
Chapter 6. Technical Regulations, Standards, and Conformity Assessment Procedures
Article 50. Objectives
The objectives of this Chapter are to promote trade between the Parties by:
(a) ensuring that technical regulations, standards, and conformity assessment procedures do not create unnecessary obstacles to trade;
(b) promoting mutual understanding of the technical regulations, standards, and conformity assessment procedures in each Party;
(c) strengthening information exchange and cooperation between the Parties in relation to the preparation, adoption, and application of technical regulations, standards, and conformity assessment procedures;
(d) strengthening cooperation between the Parties at international and regional for a on the work related to standardization and conformity assessments; and
(e) providing a framework to realize these objectives.
Article 51. Scope
1. This Chapter shall apply to technical regulations, standards, and conformity assessment procedures as defined in the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement (hereinafter referred to in this Chapter as "TBT Agreement").
2. This Chapter shall not apply to purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies and sanitary and phytosanitary measures as defined in Annex A of the SPS Agreement.
3. Nothing in this Chapter shall limit the right of a Party to prepare, adopt, and apply technical regulations and standards, to the extent necessary, to fulfill a legitimate objective. Such legitimate objectives are, inter alia, national security requirements; the prevention of deceptive practices;and protection of human health or safety, animal or plant life or health, or the environment.
Article 52. Reaffirmation of Rights and Obligations
The Parties reaffirm their rights and obligations relating to technical regulations, standards, and conformity assessment procedures under the TBT Agreement.
Article 53. Cooperation
1. For the purposes of ensuring that technical regulations, standards, and conformity assessment procedures do not create unnecessary obstacles to trade in goods between the Parties, the Parties shall, where possible, cooperate in the field of technical regulations, standards, and conformity assessment procedures.
2. The forms of cooperation pursuant to paragraph 1 may include the following:
(a) conducting joint studies and holding seminars, in order to enhance mutual understanding of technical regulations, standards, and conformity assessment procedures in each Party;
(b) exchanging government officials of the Parties for training purposes;
(c) exchanging information on technical regulations, standards, and conformity assessment procedures;
(d) contributing, where appropriate, jointly to the activities related to technical regulations, standards, and conformity assessment procedures in international and regional fora;
(e) encouraging the bodies responsible for technical regulations, standards, and conformity assessment procedures in each Party to cooperate on matters of mutual interest; and
(f) enhancing participation in the existing framework for mutual recognition established under international agreements or developed by relevant international and regional bodies.
3. The implementation of this Article shall be subject to the availability of appropriated funds and the applicable laws and regulations of each Party.
Article 54. Enquiry Points
1. Each Party shall designate an enquiry point which shall have the responsibility to coordinate the implementation of this Chapter.
2. Each Party shall provide the other Party with the name of its designated enquiry point and the contact details of relevant officials in that organization including information on telephone, facsimile, e-mail, and other relevant details.
3. Each Party shall notify the other Party promptly of any change of its enquiry point or any amendments to the information of the relevant officials.
Article 55. Sub-committee on Technical Regulations, Standards, and Conformity Assessment Procedures
1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Technical Regulations, Standards and Conformity Assessment Procedures (hereinafter referred to in this Article as "the Sub-Committee") shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be:
(a) coordinating cooperation pursuant to Article 53;
(b) identifying mutually agreed priority sectors for enhanced cooperation, including giving favorable consideration to any proposal made by either Party;
(c) establishing work programs in mutually agreed priority areas to facilitate the acceptance of conformity assessment results of the other Party and equivalence of technical regulations;
(d) monitoring the progress of work programs;
(e) reviewing the implementation and operation of this Chapter;
(f) facilitating technical consultations;
(g) reporting, where appropriate, its findings to the Joint Committee; and
(h) carrying out other functions as may be delegated by the Joint Committee pursuant to Article 11.
3. The Sub-Committee shall meet at such time and venue as maybe agreed by the Parties.
4. The Sub-Committee shall be:
(a) composed of representatives of the Governments of the Parties; and
(b) co-chaired by officials of the Governments of the Parties.
Article 56. Non-application of Chapter 13
Chapter 13 shall not apply to this Chapter.
Chapter 7. Trade In Services
Article 57. Scope
1. This Chapter shall apply to measures by a Party affecting trade in services.
2. This Chapter shall not apply to:
(a) in respect of air transport services, measures affecting traffic rights, however granted; or to measures affecting services directly related to the exercise of traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system services;
(b) cabotage in maritime transport services;
(c) measures pursuant to immigration laws and regulations;
(d) measures affecting natural persons of a Party seeking access to employment market of the other Party, nor measures regarding nationality, or residence or employment on a permanent basis; and
(e) government procurement.
3. Annex 4 provides supplementary provisions to this Chapter on financial services, including scope and definitions.
Article 58. Definitions
For the purposes of this Chapter, the term:
(a) "aircraft repair and maintenance services" means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called line maintenance;
(b) "commercial presence" means any type of business or professional establishment, including through:
(i) the constitution, acquisition, or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, within the Area of a Party for the purposes of supplying a service;
(c) "computer reservation system services" means services provided by computerized systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) "juridical person" means any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship, or association;
(e) "juridical person of the other Party" means a juridical person which is either:
(i) constituted or otherwise organized under the law of the other Party and is engaged in substantive business operations in the Area of the other Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of the other Party; or
(B) juridical persons of the other Party identified under subparagraph (i);
(f) a juridical person is:
(i) "owned" by persons of a Party or persons of anon-Party if more than 50 percent of the equity interest in it is beneficially owned either by the former persons or by the latter persons;
(ii) "controlled" by persons of a Party or persons of a non-Party if either the former persons or the latter persons have the power to name a majority of its directors or otherwise to legally direct its actions; and
(iii) "affiliated" with another person when it controls, or is controlled by, that other person; or whenit and the other person are both controlled by the same person;
(g) "measure" means any measure, whether in the form of a law, regulation, rule, procedure, decision,administrative action or any other form; Note: "measure" shall include taxation measures to the extent covered by the GATS.
(h) "measures by a Party" means any measures taken by:
(i) the central or local governments or authorities of a Party; and
(ii) non-governmental bodies in the exercise of powers delegated by the central or local governments or authorities of a Party;
(i) "measures by a Party affecting trade in services"includes measures in respect of:
(i) the purchase, payment, or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Party to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of the other Party for the supply of a service in the Area of the former Party;
(j) "monopoly supplier of a service" means any person, public or private, which in the relevant market of the Area of a Party is authorized or established formally or in effect by that Party as the sole supplier of that service;
(k) "natural person of the other Party" means a natural person who resides in the other Party or elsewhere, and who is a national of the other Party under the law of the other Party;
(l) "person" means either a natural person or a juridical person;
(m) "sector" of a service means:
(i) with reference to a specific commitment, one or more, or all, sub-sectors of that service, as specified in a Party's Schedule of Specific Commitments in Annex 5; or
(ii) otherwise, the whole of that service sector, including all of its sub-sectors;
(n) "service" includes any service in any sector except a service supplied in the exercise of governmental authority;
(o) "service consumer" means any person that receives or uses a service;
(p) "service of the other Party" means a service which is supplied:
(i) from or in the Area of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(q) "service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(r) "service supplier" means any person that supplies a service; Note: Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Chapter. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the Area of a Party where the service is supplied.
(s) "supply of a service" includes the production, distribution, marketing, sale, and delivery of a service;
(t) "the selling and marketing of air transport services"means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising, and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
(u) "trade in services" means the supply of services:
(i) from the Area of a Party into the Area of the other Party ("cross-border supply mode"); (ii) in the Area of a Party to the service consumer of the other Party ("consumption abroad mode");
(iii) by a service supplier of a Party, through commercial presence in the Area of the other Party ("commercial presence mode"); and
(iv) by a service supplier of a Party, through presence of natural persons of that Party in the Area of the other Party ("presence of natural persons mode"); and
(v) "traffic rights" means the rights 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 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 59. Market Access
1. With respect to market access through the modes of supply defined in paragraph (u) of Article 58, each Party shall accord services and service suppliers of the other Party treatment no less favorable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments in Annex 5.
Note: If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (u)(i) of Article 58 and if the cross-border movement of capital is an essential part of the service itself, that Party is thereby committed to allow such movement of capital. If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (u)(iii) of Article 58, it is thereby committed to allow related transfers of capital into its Area.
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 Area, unless otherwise specified in its Schedule of Specific Commitments in Annex 5, 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; Note: This subparagraph does not cover measures of a Party which limit inputs for the supply of services.
(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 60. National Treatment
1. In the sectors inscribed in its Schedule of Specific Commitments in Annex 5, 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 favorable than that it accords to its own like services and service suppliers.
Note: Specific commitments assumed under this Article shall not be construed to require either Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
2. A Party may meet the requirement of 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. Formallyidenticalorformallydifferenttreatmentshall be considered to be less favorable if it modifies the conditions of competition in favor of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
4. A Party shall not invoke the preceding paragraphs under Chapter 13 with respect to a measure of the other Party that falls within the scope of an international agreement between the Parties relating to the avoidance of double taxation.
Article 61. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 59 and 60, including those regarding qualifications, standards, or licensing matters. Such commitments shall be inscribed in a Party's Schedule of Specific Commitments in Annex 5.
Article 62. Schedule of Specific Commitments
1. Each Party shall set out in its Schedule the specific commitments it undertakes under Articles 59, 60, and 61. With respect to sectors or sub-sectors where such specific commitments are undertaken, the Party's Schedule of Specific Commitments in Annex 5 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 time-frame for implementation of such commitments.
2. Measures inconsistent with both Articles 59 and 60 shall be inscribed in the column relating to Article 59. In this case the inscription will be considered to provide a condition or qualification to Article 60 as well.
Article 63. Most-favored-nation Treatment
1. Unless otherwise specified in Annex6, each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords to like services and service suppliers of any non-Party.
2. Treatmentgrantedunderotheragreementsconcludedbya Party and notified under Article V or Article V bis of the GATS shall not be subject to paragraph 1.
3. If, after this Agreement enters into force, a Party concludes or amends an agreement of the type referred to in paragraph 2 with a non-Party, it shall provide the other Party an opportunity to consult on the possibility of according treatment no less favorable than that granted to services and service suppliers of the non-Party under that agreement to like services and service suppliers of that other Party.
Article 64. Modification of Schedules
1. Any modification or withdrawal of specific commitments on trade in services shall be made in accordance with paragraph1 of Article 127. In the negotiations for such modification or withdrawal, the Parties shall endeavor, in line with subparagraph 2(a) of Article XXI of the GATS, to maintain a general level of mutually advantageous commitments not less favorable to trade than that provided for in their Schedules of Specific Commitments in Annex 5 prior to such negotiations.
2. With regard to the same commitment that appears in a Party's Schedule of Specific Commitments under both the GATS and this Agreement, if modification or withdrawal has been made to such commitment with regard to its Schedule of Specific Commitments under the GATS and compensatory adjustment has been made to the other Party as an "affected Member" in accordance with Article XXI of the GATS, the Parties shall agree to amend this Agreement to incorporate such modification or withdrawal into it without further negotiation, subject to their applicable domestic procedures.
Article 65. Qualifications, Technical Standards, and Licensing
With a view to ensuring that measures by a Party relating to qualification requirements and procedures, technical standards, and licensing requirements of service suppliers of the other Party do not constitute unnecessary barriers to trade in services, each Party shall endeavor to ensure that such measures:
(a) are based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) are not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, are not in themselves a restriction on the supply of the service.
Article 66. Recognition
1. A Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in the other Party for the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing, or certification of service suppliers of the other Party.
2. Recognition referred to in paragraph 1, which may be achieved through harmonization or otherwise, may be based upon Anil agreement or arrangement between the Parties or may be accorded unilaterally.
3. Where a Party recognizes, by agreement or arrangement between the Party and a non-Party or unilaterally, the education or experience obtained, requirements met, or licenses or certifications granted in the non-Party:
(a) nothing in Article 63 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the other Party;
(b) the Party shall accord the other Party an adequate opportunity to negotiate the accession of that other Party to such an agreement or arrangement or to negotiate comparable ones with it between the Parties; and
(c) where the Party accords such recognition unilaterally, the Party shall accord the other Partyan adequate opportunity to demonstrate that the education or experience obtained, requirements met,or licenses or certifications granted in the other Party should also be recognized.
Article 67. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its Area does not, in the supply of the monopoly service in the relevant market, act in a manner in consistent with the Party's commitments under this Chapter.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated juridical person, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in the Area of the Party in a manner inconsistent with such commitments.
3. If a Party has a 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, it may request the other Party to provide specific information concerning the relevant operations.
4. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorizes or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its Area.
Article 68. Payments and Transfers
1. Except under the circumstances envisaged in Article 69, a Party shall not apply restrictions 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 International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments under this Chapter regarding such transactions, except under Article 69, or at the request of the International Monetary Fund.
Article 69. 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 on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments. It is recognized that particular pressure on the balance of payments of a Party in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its program of economic development or economic transition.
2. The restrictions referred to inparagraph1:
(a) shall ensure that the other Party is treated as favorably as any non-Party;
(b) shall be consistent with the Articles of Agreement of the International Monetary Fund;
(c) shall avoid unnecessary damage to the commercial, economic, and financial interests of the other Party;
(d) shall not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
3. In determining the incidence of such restrictions, a Party may give priority to the supply of services which are more essential to its economic or development programs. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
4. Any restrictions adopted or maintained under paragraph1, or any changes therein, shall be promptly notified to the other Party.
Article 70. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier that is a juridical person, where the denying Party establishes that the juridical person is owned or controlled by persons of a non-Party, and that denying Party:
(a) does not maintain diplomatic relations with that non-Party; or
(b) adopts or maintains measures with respect to that 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.
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier that is a juridical person, if the denying Party establishes that the juridical person is not a service supplier of the other Party.
Article 71. Sub-committee on Trade In Services
1. For the purposes of effective implementation and operation of this Chapter, the Sub-Committee on Trade in Services(hereinafter referred to in this Article as "the Sub-Committee") shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be:
(a) reviewing commitments, with respect to measures affecting trade in services in this Chapter, with a view to achieving further liberalization on a mutually advantageous basis and securing an overall balance of rights and obligations;
(b) reviewing and monitoring the implementation and operation of this Chapter;
(c) discussing any issues related to this Chapter;
(d) reporting the findings of the Sub-Committee to the Joint Committee; and
(e) carrying out other functions as may be delegated by the Joint Committee pursuant to Article 11.
3. The Sub-Committee shall be:
(a) composed of representatives of the Governments of the Parties and may invite representatives of relevant entities other than the Governments of the Parties with necessary expertise relevant to the issues to be discussed; and
(b) co-chaired by officials of the Governments of the Parties.
4. The working group on financial services (hereinafter referred to in this Article as "the Working Group") shall be established under the Sub-Committee. The details and procedures of the Working Group shall be specified in Annex 4.
Article 72. Review of Commitments
1. The Parties shall review commitments on trade in services within five years from the date of entry into force of this Agreement, with the aim of improving the overall level of commitments undertaken by the Parties under this Chapter.
2. In reviewing their commitments pursuant to paragraph 1, the Parties shall take into account the principles in paragraph 1 of Article IV and paragraph 2 of Article XIX of the GATS.
Article 73. Emergency Safeguard Measures
In the event that the implementation of this Agreement causes substantial adverse impact to a Party in a specific service sector, the Party may request consultations with the other Party for the purposes of taking appropriate measures to address such adverse impact. In such consultations, the Parties shall take into account the circumstances of the particular case and the result of the multilateral negotiations pursuant to Article X of the GATS if the said negotiations have been concluded at the time of such consultations.
Chapter 8. Movement of Natural Persons
Article 74. Scope
1. This Chapter shall apply to measures affecting the movement of natural persons of a Party who enter the other Party and fall under one of the categories referred to in Annex 7.
2. This Chapter shall not apply to measures affecting natural persons of a Party seeking access to employment market of the other Party, nor measures regarding nationality, or residence or employment on a permanent basis.
3. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, the former Party, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of specific commitments under Article 76. Note: The sole fact of requiring a visa for natural persons of the other Party and not for those of certain non-Parties shall not be regarded as nullifying or impairing benefits under specific commitments under Article 76.
Article 75. Definitions
For the purposes of this Chapter, the term "natural person of a Party" means a natural person who resides in a Party or elsewhere and who under the law of the Party is a national of the Party.
Article 76. Specific Commitments
1. Each Party shall grant entry and temporary stay to natural persons of the other Party in accordance with this Chapter including the terms of the categories in Annex 7, provided that the natural persons comply with the laws and regulations of the former Party related to movement of natural persons applicable to entry and temporary stay which are not inconsistent with the provisions of this Chapter.
2. Neither Party shall impose or maintain any limitations on the number of granting entry and temporary stay under paragraph 1, unless otherwise specified in Annex 7.
Article 77. Requirements and Procedures
1. Each Party shall publish or otherwise make available to the other Party on the date of entry into force of this Agreement, with respect to natural persons covered by that Party's specific commitments under Article 76, information on requirements and procedures necessary for an effective application by natural persons of the other Party for the grant of entry into, initial temporary stay in or renewal thereof, and, where applicable, permission to work in, and a change of status of temporary stay in, the former Party.
2. Each Party shall endeavor to provide, upon request by a natural person of the other Party, information on requirements and procedures referred to in paragraph 1.
3. Each Party shall endeavor to promptly inform the other Party of the introduction of any new requirements and procedures, or changes in any existing requirements and procedures referred to in paragraph 1 that affect the effective application by natural persons of the other Party for the grant of entry into, initial temporary stay in or renewal thereof, and, where applicable, permission to work in, and a change of status of temporary stay in, the former Party.
4. Each Party shall ensure that fees charged by its competent authorities on application referred to in paragraph 1 do not in themselves represent an unjustifiable impediment to movement of natural persons of the other Party under this Chapter.
5. Each Party shall endeavor, to the maximum extent possible, to take measures to simplify the requirements and to facilitate and expedite the procedures relating to the movement of natural persons of the other Party within the framework of its laws and regulations.
Article 78. Sub-committee on Movement of Natural Persons
1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Movement of Natural Persons (hereinafter referred to in this Article as"the Sub-Committee") shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to this Chapter,including the subjects of further negotiations referred to in Annex 7;
(c) reporting the findings of the Sub-Committee to the Joint Committee; and
(d) carrying out other functions as may be delegated by the Joint Committee in accordance with Article 11.
Article 79. Further Negotiations
The Parties shall, after the date of the entry into force of this Agreement, enter into negotiations in accordance with Annex 7.
Chapter 9. Intellectual Property
Article 80. General Provisions
1. The Parties shall grant and ensure adequate, effective, and non-discriminatory protection of intellectual property,promote efficiency and transparency in the administration of intellectual property protection system, and provide for measures for adequate and effective enforcement of intellectual property rights against infringement, counterfeiting, and piracy, in accordance with the provisions of this Chapter and the international agreements to which both Parties are parties.
2. The Parties, recognizing the growing importance of protection of intellectual property in further promoting trade and investment between the Parties, in accordance with their respective laws and regulations and subject to their available resources, shall cooperate in the field of intellectual property.
3. Intellectual property referred to in this Chapter shall mean all categories of intellectual property:
(a) that are subject of Articles 86 through 92; and/or
(b) that are under the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement (hereinafter referred to in this Chapter as"the TRIPS Agreement") and/or the relevant international agreements referred to in the TRIPS Agreement.
4. The Parties reaffirm their commitment to comply with the obligations set out in the international agreements relating to intellectual property to which both Parties are parties.
Article 81. National Treatment
Each Party shall accord to nationals of the other Party treatment no less favorable than the treatment it accords to its own nationals with regard to the protection of intellectual property in accordance with Articles 3 and 5 of the TRIPS Agreement. Note: For the purposes of Articles 81 and 82, "nationals" shall have the same meaning as in the TRIPS Agreement, and "protection" shall include matters affecting the availability, acquisition, scope, maintenance,and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Chapter.
Article 82. Most-favored-nation Treatment
Each Party shall accord to nationals of the other Party treatment no less favorable than the treatment it accords to the nationals of a non-Party with regard to the protection of intellectual property in accordance with Articles 4 and 5 of the TRIPS Agreement.
Article 83. Streamlining and Harmonization of Procedural Matters
1. For the purposes of providing efficient administration of intellectual property protection system, each Party shall take appropriate measures to streamline its administrative procedures concerning intellectual property.
2. Neither Party may require the authentication of signatures or other means of self-identification on documents to be submitted to the competent authority of the Party, including applications, translations into a language accepted by such authority of any earlier application whose priority is claimed, powers of attorney, and certifications of assignment, in the course of application procedure or other administrative procedures on patents, utility models, industrial designs, or trademarks.
3. Notwithstanding paragraph2, a Party may require:
(a) the authentication of signatures or other means of self-identification, if the law of the Party so provides, where the signatures or other means of self-identification concern the change in ownership of a patent or a registration of utility models, industrial designs, or trademarks; and
(b) the submission of evidence if there is a reasonable doubt as to the authenticity of the signature or other means of self-identification on documents submitted to the competent authority of the Party. Where the competent authority notifies the person that the submission of evidence is required, the notification shall state the reason for doubting the authenticity of the signature or other means of self-identification.
4. Neither Party may require the certification, by any party other than the applicant or his or her representatives, of the accuracy of a translation of an earlier application whose priority is claimed.
Article 84. Transparency
For the purposes of further promoting transparency in administration of intellectual property protection system, each Party shall, in accordance with its laws and regulations:
(a) take appropriate measures to publish information at least on applications for and grants of patents, registrations of utility models and industrial designs, registrations of trademarks and application therefor, and registration of new varieties of plants and application therefor;
(b) endeavor to make available to the interested parties official information contained in the dossiers in connection with matters provided for in paragraph (a);
(c) endeavor to make easily available to the public information on intellectual property protection system, including information on its efforts to provide effective enforcement of intellectual property rights.
Article 85. Promotion of Public Awareness Concerning Protection of Intellectual Property
The Parties shall take appropriate measures to enhance public awareness of protection of intellectual property including educational and dissemination projects on the use of intellectual property as well as on the enforcement of intellectual property rights.
Article 86. Patents
1. Each Party shall ensure that any application for a patent is not rejected solely on the ground that the subject matter claimed in the application is related to a computer program.
2. The provisions of paragraph 1 shall not prejudice the patentability of computer programs as such which shall be determined in accordance with the laws and regulations of each Party.
3. Each Party shall ensure that, if an invention claimed in the application for a patent is being worked by any person other than the applicant for the patent in that person's business after the publication of the application, that person or the applicant for the patent may file a request to the competent authority of the Party that the application be examined in advance of other applications, in accordance with its laws and regulations. In this case, the competent authority of the Party may require the applicant for the patent or the person who filed the request to furnish a proof that the invention is being worked, a result of prior art search in relation to the application,or a copy of the final decision by the administrative authority for patents of the other Party or of a non-Party on an application, which the applicant has filed in the other Party or in the non-Party, of an invention that is the same or substantially the same with the invention claimed in the application at issue. Where such a request has been filed, the competent authority of the Party shall take the request into consideration and endeavor to examine the application in advance of other applications, where appropriate.
4. Each Party shall ensure that a patent owner may file are quest for correction of the description, the scope of the claims, or the drawings, that are attached to the application, to the administrative authority for patents for the purpose of restricting the scope of the claims.
Article 87. Industrial Designs
Each Party shall ensure adequate and effective protection of industrial designs in accordance with Articles 25 and 26 of the TRIPS Agreement.
Article 88. Trademarks
Each Party shall ensure adequate and effective protection of trademarks in accordance with Articles 15 through 21 of the TRIPS Agreement.
Article 89. Copyright and Related Rights
1. Each Party shall ensure effective protection of copyright and related rights in accordance with its laws and regulations and international agreements to which it is a party.
2. Each Party shall ensure that its laws and regulations be implemented with appropriate legal remedies in order to protect copyright and related rights in the digital environment.
3. Each Party shall, in accordance with its laws and regulations, take appropriate measures to promote the development of the collective management organizations for copyright and related rights in that Party.
Article 90. New Varieties of Plants
Each Party recognizes the importance of providing a system of protection of new varieties of plants and shall endeavor to provide for the protection of all plant genera and species as early as practicable in accordance with the 1991 Act of the International Convention for the Protection of New Varieties of Plants.
Article 91. Geographical Indications
Each Party shall ensure adequate and effective protection of geographical indications in accordance with its laws and regulations and with the TRIPS Agreement.
Article 92. Unfair Competition
1. Each Party shall provide for effective protection against acts of unfair competition.
2. Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
3. The following acts, in particular, shall be prohibited as acts of unfair competition:
(a) all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;
(b) false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
(c) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose, or the quantity, of the goods or the services, or the manufacturing process of the goods;
(d) acts of acquiring or holding the right to use or using a domain name identical with or confusingly similar to a protected trade name and trademark of another person, for the purposes specified in the laws and regulations of each Party, such as with the intention to gain an unfair profit or the intention to cause damage to that other person.
4. Each Party shall ensure in its laws and regulations adequate and effective protection of undisclosed information in accordance with Article 39 of the TRIPS Agreement.
5. Each Party shall establish appropriate remedies to prevent or punish acts of unfair competition. In particular, each Party shall ensure that any person that considers its business interests to be affected by an act of unfair competition may bring legal action and request suspension or prevention of the act, destruction of the goods which constitute the act, removal of materials and implements used for the act, or damages to compensate for the injury which result from the act, unless otherwise provided for in the laws and regulations of the Party.
Article 93. Enforcement – Border Measures
Each Party shall ensure adequate and effective enforcement of border measures in accordance with Articles 51 through 60of the TRIPS Agreement.
Article 94. Enforcement – Civil Remedies
1. Each Party shall ensure that the right holder of intellectual property has the right to claim against the infringer damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
2. In cases where it is extremely difficult for the right holder of intellectual property to prove the actual economic harm due to the nature of facts concerned, each Party shall ensure, to the extent possible in accordance with its laws and regulations, that its judicial authorities have the authority to determine the amount of damages based on the totality of the evidence presented to them.
3. Each Party shall endeavor, as necessary, to take necessary measures to improve its judicial system with a view to providing effective civil remedies against infringement of intellectual property rights.
Article 95. Enforcement – Criminal Remedies
Each Party shall ensure that criminal procedures and penalties be applied in accordance with Article 61 of the TRIPS Agreement.
Article 96. Cooperation
1. The Parties shall cooperate in the field of intellectual property in accordance with paragraph 2 of Article 80.
2. Areas and forms of cooperation under this Article shall be set forth in the Implementing Agreement.
3. Costs of cooperation under this Article shall be borne in as equitable a manner as possible.
4. Chapter 13 shall not apply to this Article.
Article 97. Sub-committee on Intellectual Property
1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Intellectual Property (hereinafter referred to in this Article as "the Sub-Committee") shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to intellectual property with a view to enhancing protection of intellectual property and enforcement of intellectual property rights and to promoting efficient and transparent administration of intellectual property protection system, such as:
(i) issues on patents;
(ii) issues on industrial designs;
(iii) issues on trademarks;
(iv) issues on liability of internet service providers;
(v) issues on unfair competition;
(vi) issues on border measures;
(vii) issues on geographical indications; and
(viii) issues on administrative remedies;
(c) reporting the findings and the outcome of discussions of the Sub-Committee to the Joint Committee; and
(d) carrying out other functions as may be delegated by the Joint Committee in accordance with Article 11.
3. The Sub-Committee shall meet at such time and venue as maybe agreed by the Parties.
4. The Sub-Committee shall be:
(a) composed of representatives of the Governments of the Parties; and
(b) co-chaired by officials of the Governments.
Article 98. Security Exceptions
For the purposes of this Chapter, Article 73 of the TRIPS Agreement is incorporated into and forms part of this Agreement, mutatis mutandis.