1. Each Party shall ensure that a service supplier of the other Party is accorded access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders on a timely basis and on reasonable, transparent and non-discriminatory terms and conditions. This obligation shall be applied, among other things, through paragraphs 2 through 6.
2. Each Party shall ensure that a service supplier of the other Party is permitted to:
(a) purchase or lease and attach terminal or other equipment that interfaces with a public telecommunications network and which is necessary to supply a supplier’s services;
(b) provide services to individual or multiple end-users over circuits leased or owned by another service supplier to the extent that the scope and type of those services are consistent with the laws and regulations of the Party;
(c) interconnect leased or owned circuits with public telecommunications networks or services or with circuits leased or owned by another service supplier; and
(d) use operating protocols of their choice in the supply of any service, other than as necessary to ensure the availability of telecommunications networks and services to the public generally.
3. Each Party shall ensure that a service supplier of the other Party may use public telecommunications networks or services for the movement of information in its territory or across its borders, including for intra-corporate communications of that service supplier, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of a Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of communications and protect the privacy of personal data of users, subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally;
(b) protect the technical integrity of public telecommunications networks or services; or
(c) ensure that such access to and use of public telecommunications networks and services shall not constitute a security and safety hazard and is not in contravention of any statute, rule or regulation (including those related to public policy of the Party) which are publicly available and applied without discrimination on the suppliers and users of services of similar categories.
6. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks or services may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with those networks and services;
(b) restrictions on shared use of those networks and services;
(c) a requirement, if necessary, for the interoperability of those networks and services;
(d) type approval of terminal or other equipment that interfaces with the network and technical requirements relating to the attachment of that equipment to those networks; and
(e) notification, registration, and licensing.
Article 11.4. Access to Essential Facilities
1. Subject to paragraph 2, each Party shall ensure that a major supplier in its territory provides to suppliers of public telecommunications networks or services of the other Party access to essential facilities for the purpose of providing public telecommunications networks or services, on a timely basis, on terms and conditions, and at rates, which are reasonable, non-discriminatory and transparent.
2. Each Party shall provide its telecommunications regulatory authority with the power to determine the essential facilities to which a major supplier must provide access.
3. Each Party shall endeavour to ensure that its telecommunications regulatory authority bases any determination under paragraph 2 on matters including achieving effective competition and the long-term interests of end-users.
Article 11.5. Submarine Cable Systems
Each Party may provide reasonable and non-discriminatory treatment for access to submarine cable systems (including landing facilities) in its territory, where a supplier is authorised to operate a submarine cable facility as a public telecommunications service.
Article 11.6. Co-location
Each Party shall endeavour to ensure that a major supplier which has control over essential facilities in its territory allows suppliers of public telecommunications networks or services of another Party to locate their equipment at the major supplier’s premises on a timely basis and on terms and conditions, including technical feasibility and space availability where applicable, and at rates, that are reasonable, non- discriminatory and transparent.
Article 11.7. Resale
1. Each Party may determine, in accordance with its laws and regulations, which public telecommunications services must be offered for resale by major suppliers, taking into account the need to promote competition or benefits to the long-term interests of end-users.
2. Where a Party has determined that a public telecommunications service must be offered for resale by a major supplier, that Party shall ensure that any major supplier of public telecommunications networks or services in its territory does not impose unreasonable or discriminatory conditions or limitations on the resale of that public telecommunications service.
Article 11.8. Interconnection
1. Each Party shall ensure that a supplier of public telecommunications networks or services in its territory:
(a) enters into negotiations for interconnection with a supplier of public telecommunications networks or services of the other Party who is within the same territory, if requested to do so by that supplier; or
(b) provides interconnection with a supplier of public telecommunications networks or services of the other Party, to the extent provided for in its laws and regulations.
Article 11.9. Interconnection with Major Suppliers
Each Party shall ensure that a major supplier in its territory provides interconnection for the facilities of suppliers of public telecommunications networks or services of the other Party:
(a) at any technically and commercially feasible point in the major supplier’s network;
(b) under non-discriminatory terms and conditions (including as regards rates, technical standards, specifications), and of a quality no less favourable than that provided by the major supplier for its own like services, for like services of non-affiliated suppliers, or for its subsidiaries or other affiliates;
(c) on a timely basis and on terms, conditions (including technical standards and specifications), and cost-oriented rates that are transparent and reasonable (having regard to economic feasibility); and
(d) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities and mutually agreed terms and conditions.
2. Each Party shall ensure that a major supplier in its territory offers access to network elements on an unbundled basis on terms and conditions that are reasonable, non-discriminatory and transparent for the supply of public telecommunications services. A Party may determine the network elements required to be made available in its territory, and the suppliers that may obtain those elements, in accordance with its laws and regulations.
3. Each Party shall ensure that a major supplier in its territory provides suppliers of public telecommunications networks or services of the other Party with the opportunity to interconnect their facilities and equipment with those of the major supplier through at least one of the following options:
(a) a reference interconnection offer;
(b) another standard interconnection offer containing the rates, terms and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services; or
(c) the terms and conditions of an interconnection agreement in effect.
4. In addition to the options provided in paragraph 3, each Party shall ensure that suppliers of public telecommunications networks or services of the other Party have the opportunity to interconnect their facilities and equipment with those of the major supplier through the negotiation of a new interconnection agreement.
5. Each Party shall ensure that the applicable procedures for interconnection with a major supplier in its territory are made publicly available.
6. Each Party shall ensure that major suppliers in its territory make publicly available either their interconnection agreements or a reference interconnection offer.
Article 11.10. Competitive Safeguards on Major Suppliers
1. Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks or services that, alone or together, are a major supplier from engaging in or continuing anti-competitive practices.
2. For the purposes of paragraph 1, anti-competitive practices shall include:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other suppliers of public telecommunications networks or services, on a timely basis, technical information about essential facilities and commercially relevant information that is necessary for them to provide services.
Article 11.11. Treatment by Major Suppliers
1. Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications networks or services of the other Party treatment no less favourable than that major supplier accords in like circumstances to itself, its subsidiaries, its affiliates, or any non-affiliated supplier of public telecommunications networks or services regarding the:
(a) availability, provisioning, rates, or quality of like public telecommunications networks or services; and
(b) availability of technical interfaces necessary for interconnection.
Article 11.12. Mobile Number Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide mobile number portability on a timely basis and on reasonable and non-discriminatory terms and conditions.
Article 11.13. International Mobile Roaming
1. The Parties shall endeavour to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade between the Parties and enhance consumer welfare.
2. Each Party shall adopt or maintain measures to enhance transparency and competition with respect to international mobile roaming rates which may include ensuring that information regarding retail rates is easily accessible to consumers.
3. Nothing in this Article shall require a Party to regulate rates or conditions for international mobile roaming services.
Article 11.14. Universal Service
1. Each Party has the right to define the kind of universal service obligation it wishes to maintain.
2. Each Party shall administer any universal service obligation that it defines and maintains in a transparent, non-discriminatory and competitively neutral manner, and shall endeavour to ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined. Universal service obligations defined according to those principles shall not be regarded, in themselves, as anti-competitive.
Article 11.15. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including radio frequencies, numbers and rights of way in an open, objective, timely, transparent and non-discriminatory manner.
2. When allocating radio spectrum for public telecommunications services, each Party shall endeavour to rely on an open and transparent process that considers the public interest, including the promotion of competition.
3. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of radio frequencies allocated or assigned for specific government uses.
4. Each Party retains the right to establish and apply spectrum and frequency management policies which may affect the number of suppliers of public telecommunications networks or services, provided that it does so in a manner that is consistent with this Agreement. Each Party also retains the right to allocate frequency bands taking into account current and future needs and spectrum availability.
Article 11.16. Flexibility In the Choice of Technology
1. Neither Party shall prevent a supplier of public telecommunications networks or services from choosing the technologies it wishes to use to supply its services.
2. Notwithstanding paragraph 1, a Party may take measures to protect a legitimate public policy interest, provided that any measure is not applied in a manner that creates unnecessary obstacles to trade.
Article 11.17. Licensing Process
1. Where a licence is required for the supply of a public telecommunications network or service, a Party shall make publicly available:
(a) all the licensing criteria and procedures that it applies;
(b) the terms and conditions of individual licences and the period of time normally required to obtain a decision concerning an application for a licence. Each Party shall endeavour to ensure that the decision is taken within the stated period of time.
2. Each Party shall ensure that any licensing criteria or applicable procedure, as well as any obligation or condition imposed on or associated with a licence, is objective, transparent, non-discriminatory, and related to and not more burdensome than necessary for the kind of network or service provided.
3. Each Party shall ensure that, upon request, an applicant receives the reasons for the denial of a licence in writing, which may include in electronic form.
Article 11.18. Independent Regulatory and Dispute Resolution Authority
1. Each Party shall ensure that its telecommunications regulatory authority and telecommunications dispute resolution authority are separate from, and not accountable to, any supplier of public telecommunications networks and services.
2. Each Party shall ensure that its telecommunications regulatory authority does not hold a financial interest or maintain an operating or management role in any supplier of public telecommunications networks or services.
3. Each Party shall ensure that regulatory decisions of, and the procedures used by, its telecommunications regulatory authority and telecommunications dispute resolution authority related to provisions contained in this Chapter are impartial with respect to all market participants.
Article 11.19. Enforcement
Each Party shall provide its telecommunications regulatory authority with the power to ensure that suppliers of public telecommunications networks or services provide it, promptly on request, with all the information, including financial information, which is necessary to enable the telecommunications regulatory authority to carry out its tasks in accordance with this Chapter. Information requested shall be treated in accordance with the Party’s law relating to confidentiality.
Article 11.20. Transparency
1. Each Party shall make publicly available online the functions of its telecommunications regulatory authority.
2. Each Party shall endeavour to ensure that suppliers of public telecommunications networks or services are provided with adequate advance notice of, and opportunity to comment on, a regulatory decision of general application that its telecommunications regulatory authority proposes.
3. Each Party shall make publicly available, including online, its measures or information relating to public telecommunications networks or services:
(a) tariffs and other terms and conditions of service;
(b) specifications of technical interfaces with those networks and services;
(c) bodies responsible for the preparation and adoption of relevant standards;
(d) conditions applying to the attachment of terminal or other equipment to the public telecommunications networks; and
(e) notification, registration or licensing requirements, if any.
Article 11.21. Confidentiality
Each Party shall ensure, in accordance with its laws and regulations, the confidentiality of telecommunications and related traffic data transmitted in the use of public telecommunications networks or public telecommunications services, subject to the requirement that measures are not applied in a manner which constitutes a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade in services.
Article 11.22. Dispute Settlement and Appeal
1. Each Party shall ensure that any supplier of public telecommunications networks or services affected by a decision of the telecommunications regulatory authority or telecommunications dispute resolution authority has the right to appeal against that decision to an independent judicial or administrative authority. Pending the outcome of the appeal, the decision of the telecommunications regulatory authority or telecommunications dispute resolution authority shall stand, unless interim measures are granted in accordance with the Party’s law.
2. Each Party shall ensure that a supplier of public telecommunications networks or services that is supplying those networks or services in the territory of a Party has timely recourse to its telecommunications dispute resolution authority to resolve disputes in accordance with the law of that Party.
3. Each Party shall ensure that a decision issued by its telecommunications dispute resolution authority is made publicly available, having regard to the Party’s law relating to confidentiality.
4. Each Party shall ensure that the suppliers of public telecommunications networks or services involved in the dispute:
(a) are given a full statement of the reasons on which the decision is based; and
(b) may appeal the decision to a body that is independent of the telecommunications dispute resolution authority, in accordance with paragraph 1.
Article 11.23. Cooperation
1. The Parties recognise the transformational impact of telecommunications networks, infrastructure and technologies (including those that are new and emerging), and the importance of those technologies to the Parties’ respective economies and societies. Accordingly, the Parties shall endeavour to:
(a) exchange information on the opportunities and challenges associated with telecommunications networks, infrastructure and technologies;
(b) work together in international fora to promote a shared approach to these opportunities and challenges; and
(c) exchange information and experience in spectrum management.
2. The Parties further recognise the importance of promoting diversified and secure telecommunications markets. To this end, each Party shall:
(a) encourage a diverse and competitive market for public telecommunications networks and services in its territory; and
(b) protect the security and integrity of its telecommunications infrastructure.
3. The Parties recognise the importance of international standards for global compatibility and interoperability of public telecommunications networks and services, and endeavour to promote those standards bilaterally and through the work of relevant international organisations.
Chapter 12. DIGITAL TRADE
Article 12.1. Definitions
For the purposes of this Chapter:
“algorithm” means a defined sequence of steps, taken to solve a problem or obtain a result;
“electronic authentication” means an electronic process that enables the confirmation of:
(a) the electronic identification of a person; or
(b) the origin and integrity of data in electronic form;
“electronic invoicing” means the automated creation, exchange and processing of a request for payments between a supplier and a buyer using a structured digital format;
“electronic registered delivery service” means a service that makes it possible to transmit data between persons by electronic means and provides evidence relating to the handling of the transmitted data, including proof of sending and receiving the data, and that protects transmitted data against the risk of loss, theft, damage, or any unauthorised alterations;
“electronic signature” means data in electronic form that is in, affixed to, or logically associated with, an electronic data message that may be used to identify the signatory in relation to the data message and indicate the signatory’s approval of the information contained in the data message; (1)
“electronic time stamp” means data in electronic form which binds other data in electronic form to a particular date and time, establishing evidence that the latter data existed at that date and time;
“electronic trust service” means an electronic service consisting of:
(a) the creation, verification and validation of electronic signatures, electronic time stamps, electronic registered delivery services, electronic seals, certificates related to those services, and certificates for website authentication; or
(b) the preservation of electronic signatures or certificates related to those services;
“emerging technology” means an enabling and innovative technology that has potentially significant application across a wide range of existing and future sectors, including:
(a) artificial intelligence, including machine learning;
(b) distributed ledger technologies;
(c) quantum technologies;
(d) immersive technologies;
(e) sensing technologies;
(f) digital twins; and
(g) the Internet of Things;
“end-user” means a natural person or juridical person to the extent provided for in a Party’s laws and regulations, using or requesting a public telecommunications service for personal, trade, business, or professional purposes;
“measure by a Party” means a measure taken by:
(a) central government and authorities of that Party; or
(b) non-governmental bodies in the exercise of powers delegated by central government or authorities of that Party;
“public telecommunications service” means a public telecommunications service as defined in Article 11.1 (Definitions – Telecommunications);
“trade administration document” means a form or document issued or controlled by a Party which must be completed by or for an importer or exporter in connection with the import or export of a good; and
“unsolicited commercial electronic message” means an electronic message (2) that is sent for commercial or marketing purposes directly to an end-user via a public telecommunications service, without the consent of the recipient or despite the explicit rejection of the recipient.
Article 12.2. Objective
1. The Parties recognise the benefits of, and opportunities provided by, digital trade.
2. The Parties further recognise the importance of:
(a) facilitating the use and development of digital trading systems;
(b) promoting cooperation among domestic frameworks to facilitate digital trade;
(c) international cooperation with a view to developing international frameworks to govern digital trade that are free, fair, and inclusive; and