(a) a majority of panellists shall have the necessary expertise relevant to the financial services under dispute, and such expertise may include the regulation of financial service suppliers; and
(b) the appointed panellist acting as chair shall, where possible, have prior experience as counsel or arbitrator in dispute settlement proceedings.
3. Further to paragraph 5 of Article 29.15 (Compensation and Suspension of Concessions or other Obligations – Dispute Settlement), in considering what concessions or other obligations to suspend for the purposes of that Article, the complaining Party shall apply the following principles. In cases where the panel has found an inconsistency with the Agreement which affects: (23)
(a) the financial services sector and any other sector, the complaining Party may suspend obligations in the financial services sector that have an effect that does not exceed a level equivalent to the level of nullification or impairment in the complaining Party’s financial services sector; or
(b) notwithstanding paragraph 5(b) of Article 29.15 (Compensation and Suspension of Concessions or other Obligations – Dispute Settlement), only a sector other than the financial services sector, the complaining Party shall not suspend obligations in the financial services sector.
Article 9.20. Cooperation and Exchange of Views on Financial Services
1. The Parties shall strengthen cooperation efforts in the financial services sector. As part of these efforts, the Parties shall exchange views through appropriate forums on issues relating to financial services at intervals as agreed by the Parties. The forums may include existing forums, or such forums as may be agreed by the Parties, and shall be composed of relevant entities to be decided by the Parties, which shall include, where appropriate, the regulatory and supervisory authorities of the Parties.
2. The Parties recognise that these efforts support objectives which include the following:
(a) enhancing trade in financial services between the Parties;
(b) strengthening financial systems and promoting financial stability;
(c) improving market integrity, mitigating unnecessary market fragmentation and promoting fair and competitive markets;
(d) promoting robust and efficient financial service suppliers, markets, and infrastructure;
(e) protecting consumers, investors, depositors, policy holders and persons to whom a fiduciary or statutory duty is owed by a financial service supplier; and
(f) providing a transparent and conducive environment for financial service suppliers.
3. In addition to paragraph 3 of Article 9.14 (Financial Services New to the Territory of a Party), the Parties shall endeavour to collaborate, share knowledge and experiences and to support development in financial services and technology, in areas such as, but not limited to, FinTech and RegTech (24) and other areas of new and emerging technology. In doing so the Parties shall advance financial integrity, consumer protection, financial inclusion, financial stability, operational resilience, sustainability and facilitate cross-border development of new financial services.
4. The Parties shall endeavour to share best practices to promote diversity (25) in financial services and recognise the importance of building a diverse, financial services industry, and the positive impact that diversity has on balanced decision-making, consumers, workplace culture, investment, and competitive markets.
5. The Parties recognise the importance of international cooperation to facilitate the inclusion of environmental, social, and governance considerations in decision-making by financial services suppliers.
Article 9.21. Credit Rating of Financial Services Suppliers
1. In relation to the provision of a financial service in the territory of a Party:
(a) by a financial service supplier of the other Party, which is already authorised by the Party to supply financial services through commercial presence in its territory, and
(b) where the provision of financial services is wholly or partially contingent on an assessment by the Party of the credit rating of that financial service supplier or the sovereign credit rating of the other Party, the host Party shall, to the extent practicable, undertake its assessment in a reasonable manner. (26)
Article 9.22. Electronic Payments
1. Recognising the rapid growth of electronic payments, including those provided by non-banks and FinTech entities, the Parties shall, while maintaining resilience, endeavour to work together to support the development of an efficient, safe and secure environment for cross-border electronic payments, including through:
(a) encouraging mutual cooperation and sharing information about each other’s experience, technical expertise and innovations in the area of digital payment infrastructure and products;
(b) encouraging the adoption and use of internationally accepted standards;
(c) promoting interoperability and interlinkages of electronic payment infrastructures including payment systems; and
(d) encouraging innovation and competition in electronic payments services.
2. To this end, each Party shall, while maintaining resilience, endeavour to:
(a) for the electronic payment systems solely operated by a Party, publicly disclose objective and risk‐based system rules and criteria for operation and participation which permit fair and open access;
(b) encourage payment service providers to safely and securely make available new technologies and standards for their financial products and services, and where possible, to facilitate greater interoperability, innovation and competition in electronic payments; and
(c) facilitate innovation and competition and the introduction of new electronic payment products and services, such as through adopting regulatory and industry sandboxes and cooperation at international fora.
3. In view of paragraph 1, the Parties recognise the importance of upholding safety, efficiency, trust and security in electronic payment systems through laws and regulatory measures, and that the adoption and enforcement of laws, regulatory measures and policies should take into account the risks undertaken by the payment service providers.
Article 9.23. Subsidies
1. Notwithstanding subparagraph 3(b) of Article 9.2 (Scope), the Parties shall review the issue of disciplines on subsidies related to trade in financial services in light of any disciplines relevant to financial services agreed under Article XV of GATS with a view to their incorporation into this Chapter.
2. A Party which considers that it is adversely affected by a subsidy of the other Party related to trade in financial services may request consultations with the other Party on such matters. On receipt of such a request, the requested Party shall enter into consultations with the requesting Party, with a view to resolving the matter, provided that the request includes an explanation of how the subsidy has adversely affected trade in financial services between the Parties. During the consultations, the Party granting the subsidy may consider a request of the other Party for information relating to the subsidy.
3. Neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement) for any request made or consultations held under this Article, or any other dispute arising under this Article.
Chapter 10. TEMPORARY MOVEMENT OF NATURAL PERSONS
Article 10.1. Definitions
For the purposes of this Chapter:
“immigration formality” means a visa, permit, pass or other document or electronic authority granting temporary entry;
“natural person of a Party” means a national of a Party as defined in Article 1.4 (General Definitions – Initial Provisions and General Definitions); and
“temporary entry” means entry into and temporary stay in the territory of a Party by a natural person of the other Party covered by this Chapter without the intent to establish permanent residence.
Article 10.2. Objectives
1. The objectives of this Chapter are to:
(a) provide for rights and obligations in relation to the temporary movement of natural persons between the Parties;
(b) facilitate the temporary entry of natural persons covered by this Chapter who are engaged in the supply of services; and
(c) ensure streamlined and transparent processes for obtaining immigration formalities for the temporary entry of natural persons covered by this Chapter.
Article 10.3. Scope
1. This Chapter shall apply to measures by a Party affecting the temporary entry into the territory of that Party by natural persons of the other Party who fall under any of the categories defined in the former Party’s Schedule in Annex 10A (Schedules of Specific Commitments on Temporary Movement of Natural Persons).
2. For greater certainty, Annex 10A (Schedules of Specific Commitments on Temporary Movement of Natural Persons) is an integral part of this Chapter.
3. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party nor shall it apply to measures regarding citizenship, nationality, residence, or employment on a permanent basis.
4. Nothing in this Agreement shall prevent a Party from applying measures to regulate the temporary entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of and to ensure the orderly movement of natural persons across its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to the other Party under this Chapter.
5. The sole fact that a Party requires natural persons of the other Party to obtain an immigration formality shall not be regarded as nullifying or impairing the benefits accruing to the other Party under this Chapter.
6. For greater certainty, all requirements provided for in the law of each Party regarding employment and social security shall continue to apply, including laws and regulations concerning minimum wages and collective wage agreements, provided that those requirements are consistent with the obligations in this Chapter and in any agreement between the Parties regarding employment or social security measures.
Article 10.4. Grant of Temporary Entry
1. Each Party shall set out in its Schedule in Annex 10A (Schedules of Specific Commitments on Temporary Movement of Natural Persons) the commitments it makes for the temporary entry of natural persons of the other Party, which shall specify the conditions and limitations for temporary entry, including length of stay, for the categories of natural persons of that other Party included in that Schedule.
2. Each Party shall grant temporary entry or extension of temporary stay to natural persons of the other Party to the extent provided for in those commitments made pursuant to paragraph 1, provided that those natural persons:
(a) follow the granting Party’s prescribed application procedures for the relevant immigration formality; and
(b) meet all relevant eligibility requirements for temporary entry into, or extension of temporary stay in, the granting Party.
3. In respect of the specific commitments on temporary entry of natural persons in this Chapter, unless otherwise specified in Annex 10A (Schedules of Specific Commitments on Temporary Movement of Natural Persons), neither Party shall adopt or maintain limitations on the total number of natural persons of the other Party to be granted temporary entry, in the form of numerical quotas or the requirement of an economic needs test.
4. A Party may refuse to issue an immigration formality to a natural person of the other Party covered by this Chapter if the temporary entry of that person might affect adversely:
(a) the settlement of any labour dispute that is in progress at the place or intended place of employment; or
(b) the employment of any natural person who is involved in such dispute.
5. The sole fact that a Party grants temporary entry to a natural person of the other Party pursuant to this Chapter shall not be construed to exempt that natural person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practise a profession or otherwise engage in business activities.
Article 10.5. Processing of Applications
1. On receipt of a complete application for an immigration formality, or an extension or renewal thereof, each Party shall, as expeditiously as possible, process the application, make a decision on it and notify the applicant of the decision. Such notification shall include:
(a) for approved applications, the period of temporary stay and, if practicable, any other relevant conditions; and
(b) for refused or denied applications, information on any available review or appeal procedures and, to the extent required by the law of a Party, the reasons for refusal or denial.
2. On request of an applicant, each Party in receipt of a complete application for an immigration formality, or an extension or renewal thereof, shall endeavour to promptly provide information concerning the status of the application.
3. If a Party requires additional information from the applicant in order to process the application, that Party shall endeavour to notify in line with domestic processes, without undue delay, the applicant of the required additional information and set a reasonable deadline for providing it.
4. Each Party shall endeavour to accept applications in electronic format. If an applicant has a choice to submit the application in either paper or electronic format, the Party shall treat electronic applications as equivalent to paper applications.
5. Where appropriate and to the extent its law permits, each Party shall accept copies of documents authenticated, in accordance with its law, in place of original documents.
6. Each Party shall ensure that fees charged by its competent authorities for the processing of an application for an immigration formality by a natural person covered by this Chapter are reasonable, in that they do not unduly impair or delay trade in services under this Agreement.
Article 10.6. Transparency
1. Further to Article 25.2 (Publication – Transparency), each Party shall make publicly available information relating to current requirements for the temporary entry of natural persons of the other Party covered by this Chapter.
2. The information referred to in paragraph 1 shall include, where applicable, the following:
(a) categories of immigration formality;
(b) documentation required and conditions to be met;
(c) method of filing an application and options on where to file, such as consular offices or online;
(d) application fees and an indicative timeframe for the processing of an application;
(e) the maximum length of stay under each category of immigration formality;
(f) conditions for any available extension or renewal;
(g) rules regarding accompanying dependants; and
(h) available review or appeal procedures.
3. Further to Article 25.5 (Provision of Information – Transparency), if a Party adopts a new immigration measure or modifies an existing immigration measure that affects temporary entry of natural persons of the other Party covered by this Chapter, that Party shall:
(a) update information made publicly available pursuant to paragraphs 1 and 2 as soon as possible; and
(b) endeavour to promptly inform the other Party of the measure adopted or modified.
4. To the extent possible, when introducing or changing requirements for the temporary entry of natural persons of the other Party covered by this Chapter, each Party, in accordance with its law, shall provide a reasonable period of time between the date when the relevant measure is made publicly available, including through publication on the internet where feasible, and the date it enters into force.
5. Within 90 days of the date of entry into force of this Agreement, the Parties shall exchange publicly available information on current procedures relating to the processing of applications for temporary entry.
Article 10.7. Cooperation on Return and Readmissions
The Parties shall cooperate on the return and readmission of natural persons of a Party covered by this Chapter staying in the territory of the other Party if that natural person is in contravention of that other Party’s measures relating to temporary entry.
Article 10.8. Working Group on the Temporary Movement of Natural Persons
1. The Parties hereby establish a Working Group on the Temporary Movement of Natural Persons (“Working Group”) composed of representatives of each Party. The Working Group shall be a subsidiary body of the Subcommittee on Trade in Services.
2. The Working Group shall meet within one year of the date of entry into force of this Agreement, and thereafter as agreed by the Parties.
3. The Working Group’s functions shall be to:
(a) review and monitor the implementation of this Chapter;
(b) consider opportunities to facilitate temporary entry of natural persons covered by this Chapter; and
(c) facilitate the exchange of information about each Party’s immigration measures relating to the categories of natural persons as defined in each Party’s Schedule in Annex 10A (Schedules of Specific Commitments on Temporary Movement of Natural Persons).
4. The Working Group shall report to the Subcommittee on Trade in Services as required.
Article 10.9. Dispute Settlement
1. Neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement) regarding a refusal to grant temporary entry unless:
(a) the matter involves a pattern of practice; and
(b) the natural persons affected have exhausted all available administrative remedies regarding the particular matter.
2. The remedies referred to in subparagraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the other Party within a reasonable period of time after the date of the institution of proceedings for the remedy, including any proceedings for review or appeal, and the failure to issue such a determination is not attributable to delays caused by the natural persons concerned.
Chapter 11. TELECOMMUNICATIONS
Article 11.1. Definitions
For the purposes of this Chapter:
“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 supplier other than a supplier of public telecommunications services;
“essential facilities” means facilities of a public telecommunications network or
service that:
are exclusively or predominantly provided by a single or limited number of suppliers; and
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 of a public telecommunications network or service to communicate with users of another supplier of a public telecommunications network or service, and to access services provided by another supplier of public telecommunications networks or services;
“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. In this Chapter, “intra-corporate communications” 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 that are set aside for the dedicated use of, or availability to, a user;
“licence” means any formal authorisation 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, including licences, concessions, permits, or registrations;
“major supplier” means a supplier of public telecommunications networks or public telecommunications services which has the ability to materially affect the terms of participation, having regard to price and supply, in a relevant market for public telecommunications networks or services as a result of control over essential facilities or the use of its position in that market;
“Mobile number portability” means the ability of end-users of public telecommunications services who so request to retain the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
“non-discriminatory” means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services under like circumstances;
“public telecommunications network” means any telecommunications infrastructure used for the provision of public telecommunications services between and among defined network termination points, as provided for in the laws and regulations of each Party;
“public telecommunications service” (1) means any telecommunications service that is offered to the public generally;
“reference interconnection offer” means interconnection offer by a major supplier that is made publicly available, so that any supplier of public telecommunications 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 authority” means any authority, including, where applicable, the telecommunications regulatory authority pursuant to the Party’s laws and regulations, responsible for the resolution of disputes concerning telecommunications;
“telecommunications network” means transmission systems and, if applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the transmission and reception of signals by wire, radio, optical, or other electromagnetic means;
“telecommunications regulatory authority” means the body or bodies responsible for
the regulation of telecommunications networks and services covered by this Chapter;
“telecommunications service” means a service which consists wholly or mainly in the transmission and reception of signals over telecommunications networks, and
“user” means a service consumer or a service supplier using a public telecommunications network or service.
Article 11.2. Scope
1. This Chapter shall apply to measures by a Party affecting trade in telecommunications services.
2. For greater certainty, those measures by a Party affecting trade in telecommunications services are subject to the rights and obligations contained in Chapter 8 (Trade in Services), including the Party’s schedules of specific commitments.
3. This Chapter shall apply subject to rules, regulations and licence conditions, as applicable within the territory of each Party, provided that they are not inconsistent with this Agreement.
4. This Chapter shall not apply to:
(a) a measure affecting services providing, or exercising editorial control over, content transmitted using telecommunications networks or services;
(b) a measure relating to broadcast or cable distribution of radio or television programming, except a measure to ensure that a cable or broadcast service supplier has continued access to and use of public telecommunications networks and services; or
(c) a measure relating to the supply of new services. (2)
5. In the event of any inconsistency between this Chapter and another Chapter of this Agreement, this Chapter shall prevail to the extent of the inconsistency.