Title
AGREEMENT ON TRADE IN SERVICES AND INVESTMENT BETWEEN THE REPUBLIC OF SINGAPORE AND THE REPUBLIC OF KAZAKHSTAN
Preamble
PREAMBLE
The Republic of Singapore (hereinafter referred to as "Singapore")
and the Republic of Kazakhstan (hereinafter referred to as "Kazakhstan") (hereinafter referred to collectively as "the Parties", and individually as a "Party"),
RECOGNISING the importance of enhancing the longstanding and strong friendship between the Parties;
ACKNOWLEDGING the mutual desire of the Parties for a comprehensive economic partnership covering trade in goods, trade in services, investments, and trade-related areas;
REAFFIRMING
the Framework Agreement on Comprehensive Economic Cooperation between the Eurasian Economic Union and its Member States, of the one part, and the Republic of Singapore, of the other part, signed in Yerevan, Armenia on the first day of October 2019;
DESIRING
to eliminate barriers to trade in services and investment between the Parties, lower business costs, enhance economic efficiency and create favourable conditions for greater economic cooperation and mutual benefit;
RECOGNISING
that the promotion and mutual protection of investments will be conducive to stimulating business initiative and increasing prosperity in the Parties;
DESIRING
to create favourable conditions for greater bilateral economic cooperation and in particular for investments by investors of a Party in the territory of the other Party based on the principles of equality and mutual benefit; and
REAFFIRMING
each Party's right to adopt and enforce measures necessary to pursue legitimate national policy objectives,
HAVE AGREED
as follows:
Body
Chapter 1. INITIAL PROVISIONS
Article 1.1. Establishment of a Free Trade Area
The Parties hereby establish a free trade area, consistent with Article V of the GATS.
Article 1.2. Objectives
The objectives of this Agreement are to liberalise and facilitate trade in services and investment between the Parties in accordance with this Agreement.
Article 1.3. Scope
1. This Agreement shall apply to measures by the Parties affecting trade in services and investment.
2. This Agreement shall not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market or employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
3. This Agreement shall not apply to:
(a) services supplied in the exercise of governmental authority within the territory of each respective Party. For the purposes of this Agreement, a 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;
(b) government procurement; and
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance, or any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers or service suppliers, or to investors of the Party or investments of investors of the Party, including government-supported loans, guarantees and insurance.
Article 1.4. Definitions of General Application
For the purposes of this Agreement, unless otherwise specified:
(a) "activities" means activities of industrial, commercial or professional character of the juridical persons, branches, referred to in subparagraph (i), except for those carried out neither on a commercial basis nor in competition with one or more persons engaged in the same type of activities;
(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 territory of the other Party for the purposes of supplying a service;
(c) "day" means a calendar day;
(d) "GATS" means the General Agreement on Trade in Services contained in Annex 1B of the WTO Agreement
(e) “IMF” means the International Monetary Fund;
(f) “interested person” means any natural person or juridical person that may be subject to any rights or obligations under a measure of general application;
(g) “investment” means every kind of asset, owned or controlled, directly or indirectly, by an investor, that has the characteristics of an investment. (1) Forms that an investment may take include but are not limited to: (2)
(i) movable and immovable property and related property rights;
(ii) shares, stock, and other forms of equity participation in a juridical person including rights derived therefrom;
(iii) bonds, debentures, and loans and other debt instruments, (3) including rights derived therefrom;
(iv) futures, options, and other derivatives;
(v) claims to money or to any contractual performance related to a business and having an economic value;
(vi) intellectual property rights and goodwill; and
(vii) licenses, authorisations, permits, and similar rights conferred pursuant to applicable laws and regulations, including any concession to search for, cultivate, extract or exploit natural resources;
(h) "investor of a Party" means:
(i) a natural person who is a citizen of that Party in accordance with its laws and regulations; or
(ii) a juridical person of that Party,
that is making or has made an investment, or has taken concrete action or actions to make an investment, (4) in the territory of the other Party;
(i) "juridical person" means any legal entity duly constituted or otherwise organised in accordance with the laws and regulations of a Party, whether for profit or otherwise, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organisation and a branch of a juridical person; (5)
(j) "juridical person of a Party" means a juridical person which is constituted or otherwise organised under the laws and regulations of that Party;
(k) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form;
(l) "measure by a Party" means measures taken by:
(i) central, regional or local governments and authorities of that Party; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities of that Party;
(m) "measures by a Party affecting trade in services" include 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 Parties to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of another Party;
(n) "measure of general application" does not include:
(i) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good or service in a specific case; or
(ii) a ruling that adjudicates with respect to a particular act or practice;
(o) "national" means a citizen of a Party within the meaning of its laws and regulations;
(p) "natural person" means a natural person who is a national of a Party;
(q) "non-party" means a State which is not a party to this Agreement;
(r) "person" means either a natural person or a juridical person;
(s) "services" includes any services in any sector except services supplied in the exercise of governmental authority;
(t) "service supplier" means any person that supplies a service; (6)
(u) "service consumer" means any person that receives or uses a service;
(v) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service;
(w) "territory" means:
(i) with respect to Kazakhstan: the territory within its land, sea and air borders, including the land, internal waters, subsoils, and air space, and any area outside the state border where Kazakhstan exercises or may hereafter exercise its sovereign rights and jurisdiction with respect to the sea-bed, subsoil and their natural resources, in accordance with its laws and regulations and international law;
(ii) with respect to Singapore, its land territory, internal waters and territorial sea, including the airspace above them, as well as any maritime area situated beyond the territorial sea which has been or might in the future be designated under its laws and regulations, in accordance with international law, as an area within which Singapore may exercise sovereign rights or jurisdiction with regards to the sea, the sea-bed, the subsoil and the natural resources;
(x) "trade in services" means 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; or
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party;
(y) "WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994; and
(z) "WTO" means the World Trade Organization.
Chapter 2. TRADE IN SERVICES
Article 2.1. Scope and Coverage
1. This Chapter shall apply to measures by a Party affecting trade in services by service suppliers of the other Party.
2. This Chapter shall not apply to air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services.
3. With regard to financial services, as defined in paragraph 5(a) of the GATS Annex on Financial Services:
(a) this Chapter shall only apply in respect of the sectors inscribed in each Party's Schedule of Specific Commitments under the GATS, subject to any conditions and qualifications set out therein;
(b) in addition to the provisions of this Chapter, the rights and obligations of the Parties in respect of financial services shall also be governed by the provisions of the GATS Annex on Financial Services, which are hereby incorporated into this Agreement, mutatis mutandis; and
(c) in the event of any inconsistency between this Chapter and the GATS Annex on Financial Services, this Chapter shall prevail to the extent of the inconsistency.
4. With regard to telecommunications services:
(a) this Chapter shall only apply in respect of the sectors inscribed in each Party's Schedule of Specific Commitments under the GATS, subject to any conditions and qualifications set out therein;
(b) in addition to the provisions of this Chapter, the rights and obligations of the Parties in respect of telecommunications services shall also be governed by the provisions of the GATS Annex on Telecommunications and the GATS Reference Paper developed in the Negotiating Group on Basic Telecommunications attached to each Party's Schedule of Specific Commitments under the GATS, which are hereby incorporated into this Agreement, mutatis mutandis; and
(c) In the event of any inconsistency between this Chapter and the GATS Annex on Telecommunications or between this Chapter and the GATS Reference Paper developed in the Negotiating Group on Basic Telecommunications attached to each Party's Schedule of Specific Commitments under the GATS, this Chapter shall prevail to the extent of the inconsistency.
Article 2.2. Most-Favoured-Nation Treatment
1. Subject to exceptions that may derive from harmonisation of regulations based on agreements concluded by a Party with a non-party providing for mutual recognition in accordance with Article VII of the GATS, and except as provided in a Party's Annex on Article II Exemptions to the GATS, with respect to any measure covered by this Chapter, each Party shall accord immediately and unconditionally to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of any non-party.
2. The provisions of this Chapter shall not be so construed as to prevent a Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.
3. Nothing in this Chapter shall be interpreted as to oblige a Party to provide to services or service suppliers of the other Party benefits or privileges that the former Party is providing or will provide in future:
(a) under any economic or customs union, or free trade area or common market, including other forms of regional or bilateral cooperation, or similar international agreements to which either of the Parties is or may become a party, including investment agreements among them;
(b) under any bilateral investment treaties to which either of the Parties is or may become a party;
(c) under any international investment agreements between or among member States of a regional economic community, including investment agreements between or among member States of a regional economic community and any one or more non-parties to that regional economic community;
(d) under any arrangement with a non-party or non-parties in the same geographical region designed to promote regional cooperation in the economic, social, labour, industrial or monetary fields; and
(e) on the basis of agreements meant to avoid double taxation, or other arrangements on taxation issues.
Article 2.3. Market Access
1. With respect to market access through the modes of supply defined in subparagraph (x) of Article 1.4 (Definitions of General Application), each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in Annex 2 - 1 (Schedules of Specific Commitments). (1)
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annex 2 -1 (Schedules of Specific Commitments), are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement 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; (2)
(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 2.4. National Treatment
1. In the sectors inscribed in its Schedule of Specific Commitments in Annex 2 -1 (Schedules of Specific Commitments), and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.
2. 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. 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 a Party compared to like services or service suppliers of the other Party.
Article 2.5. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 2.3 (Market Access) and 2.4 (National Treatment), including those regarding qualifications, standards and licensing matters. Such commitments shall be inscribed in a Party's Schedule of Specific Commitments in Annex 2 - 1 (Schedules of Specific Commitments).
Article 2.6. Payments and Transfers
1. Except under the circumstances envisaged in Article 7.6 (Restrictions to Safeguard the Balance-of-Payments), 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 IMF under the Articles of Agreement of the IMF, including the use of exchange actions which are in conformity with the 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 7.6 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
Article 2.7. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's specific commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. 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 paragraph 1 or 2, it may request the other Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
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 2.8. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Where a Party requires authorisation for the supply of a service, the Party's competent authorities shall, within a reasonable period of time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
3. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall endeavour to ensure that such measures are:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
4. If authorisation is required for the supply of a service in sectors where specific commitments are undertaken, each Party shall endeavour to ensure that:
(a) its competent authorities provide an indicative timeframe for processing of an application for a licence;
(b) its competent authorities make a decision on the granting or denial of a licence without undue delay;