1. The Parties shall strengthen their cooperation in the fields of technical regulations, standards, and conformity assessment procedures with a view to facilitating trade between the Parties.
2. A Party shall, upon request of the other Party, give consideration to sector specific proposals, for cooperation under this Chapter on matters of mutual benefit.
3. The Parties shall explore opportunities to promote cooperation between themselves, and between bodies in each Party’s territory to develop technical regulations, standards, and conformity assessment procedures.
Article 7.11. Technical Discussions
1. A Party may request technical discussions with the other Party with the aim of resolving any matter that arises under this Chapter.
2. Unless the Parties agree otherwise, the Parties shall hold technical discussions within 60 days of the request for technical discussions, and by any agreed method. The Parties shall endeavour to reach a mutually satisfactory solution to the matter as expeditiously as possible and if the requesting Party considers that the matter is urgent, it may request that any discussions commence within a shorter timeframe. In that case, the responding Party shall give positive consideration to this request.
3. For greater certainty, a Party may request technical discussions with the other Party regarding technical regulations or conformity assessment procedures of its regional level of government that may have a significant effect on trade.
4. Information provided in the course of technical discussions is provided in confidence and the other Party shall maintain the confidentiality of the information subject to its laws and regulations.
5. Unless the Parties agree otherwise, technical discussions shall be without prejudice to the rights and obligations of the Parties under this Agreement, the WTO Agreement, or any other agreement to which both Parties are party.
6. Any request for information or technical discussions and communications shall be conveyed through the respective contact points designated pursuant to Article 7.12 (Contact Points).
Article 7.12. Contact Points
1. Each Party shall designate and notify contact points for matters arising under this Chapter, in accordance with Article 27.5 (Contact Points – Administrative and Institutional Provisions).
2. A Party shall promptly notify the other Party of any change of its contact points or the details of the relevant officials.
3. The responsibilities of each contact point shall include communicating with the other Party’s contact points, including facilitating discussions, requests, responses to requests from relevant government agencies, and the timely exchange of information on matters arising under this Chapter.
Article 7.13. Subcommittee on Standards, Technical Regulations, and Conformity Assessment Procedures
1. The Parties hereby establish a Subcommittee on Standards, Technical Regulations, and Conformity Assessment Procedures, consisting of representatives of the Parties.
2. The Subcommittee shall meet at such venues and times as mutually determined by the Parties. Meetings may be conducted in person, or by any other means as mutually determined by the Parties.
3. The functions of the Subcommittee may include:
(a) monitoring the implementation and operation of this Chapter;
(b) coordinating cooperation pursuant to Article 7.10 (Cooperation and Trade Facilitation);
(c) facilitating technical discussions;
(d) reporting, where appropriate, its findings to the Committee on Trade in Goods; and
(e) carrying out other functions as may be delegated by the Committee on Trade in Goods.
Chapter 8. TRADE IN SERVICES
Article 8.1. Definitions
For the purposes of this Chapter:
“aircraft repair and maintenance services” means those activities when undertaken on an aircraft or a part thereof while the aircraft or part is withdrawn from service and does not include line maintenance;
“airport operation services” means any service for operation or management of airport infrastructure, including terminals, runways, taxiways and aprons, parking facilities, and intra-airport transportation systems, for any kind of remuneration. Airport operation services do not include air navigation services, security services and ground handling services;
“commercial presence” means any type of business or professional establishment,
including through:
(a) the constitution, acquisition, or maintenance of a juridical person; or
(b) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
“computer reservation system services” means services provided by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
“ground handling services” means the supply of the following services, on a fee or contract basis: ramp handling, aircraft servicing, aircraft cleaning, loading or unloading, cargo and mail handling services, baggage handling, administrative support services, representational services, passenger handling, flight operations and surface transport. Ground handling services do not include: fixed intra-airport transport systems, security functions and self-handling;
“juridical person of a Party” means a juridical person which is either:
(a) constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party; or
(b) in the case of the supply of a service through commercial presence, owned or controlled by:
(i) natural persons of that Party; or
(ii) juridical persons of that Party identified under subparagraph (a);
a juridical person is:
(a) “owned” by persons of a Party if more than fifty per cent of the equity interest in it is beneficially owned by persons of that Party;
(b) “controlled” by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(c) “affiliated” with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
“line maintenance services” means any maintenance services that are carried out before flight to ensure that the aircraft is fit for the intended flight. It includes minor repairs and modifications which do not require extensive disassembly and can be accomplished by simple means;
“measures by a Party affecting trade in services” includes measures in respect of:
(a) the purchase or use of, or payment for, a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
“monopoly supplier of a service” means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
“natural person of a Party” means a national of a Party as defined in Article 1.4 (General Definitions – Initial Provisions and General Definitions);
“sector” of a service means:
(a) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in the respective Schedules of the Parties in Annex 8B (Schedules of Specific Commitments);
(b) otherwise, the whole of that service sector, including all of its subsectors;
“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;
“service consumer” means any person that receives or uses a service;
“service of the other Party” means a service which is supplied:
(a) from or in the territory of that other Party, or in the case of maritime transport, by a vessel registered under the laws and regulations of that other Party, or by a person of that other Party which supplies the service through the operation of a vessel or its use in whole or in part; or
(b) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;
“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;
“service supplier” means a person that supplies a service; (1)
“services” includes any service in any sector except services supplied in the exercise
of governmental authority;
“supply of a service” includes the production, distribution, marketing, sale and
delivery of a service;
“trade in services” means the supply of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to a service consumer of the other Party;
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party;
(d) by a service supplier of a Party, through presence of natural persons of that Party in the territory of the other Party; and
“traffic rights” means the rights for scheduled and non-scheduled services to operate or carry passengers, cargo, and mail for remuneration or hire from, to, within, or over the territory of 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 8.2. Scope
1. This Chapter shall apply to measures by a Party affecting trade in services.
2. For the purposes of this Chapter, “measures by a Party” means measures taken by:
(a) central, regional, or local governments and authorities of that Party; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional, or local governments or authorities of that Party.
3. In fulfilling its obligations and commitments under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non- governmental bodies within its territory.
3. This Chapter shall not apply to measures relating to:
(a) financial services as defined in Article 9.1 (Definitions – Financial Services);
(b) government procurement;
(c) subsidies or grants provided by a Party, including government- supported loans, guarantees and insurance;
(d) audio-visual services; and
(e) cabotage (2) in maritime transport services. (3)
4. This Chapter does not impose any obligation on a Party with respect to a natural person of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that natural person with respect to that access or employment. For greater certainty, this Chapter does not apply to measures regarding citizenship, nationality or residence on a permanent basis.
5. In respect of air transport services, this Chapter shall not apply to measures affecting traffic rights however granted, or measures affecting services directly related to the exercise of traffic rights, other than measures affecting:
(a) aircraft repair and maintenance services;
(b) line maintenance services;
(c) selling and marketing of air transport services;
(d) computer reservation system services;
(e) airport operation services; and
(f) ground handling services.
6. For greater certainty, Annex 8A (Professional Services) is an integral part of this Chapter.
7. In the event of any inconsistency between this Chapter and a bilateral, plurilateral, or multilateral air services agreement to which both Parties are party, the air services agreement shall prevail in determining the rights and obligations of the Parties.
8. Notwithstanding Article 29.5 (Choice of Forum – Dispute Settlement), if the Parties have the same obligations under this Agreement and a bilateral, plurilateral, or multilateral air services agreement, a Party may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.
Article 8.3. Market Access
1. With respect to market access through the modes of supply identified in the definition of “trade in services” in Article 8.1 (Definitions), 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 its Schedule in Annex 8B (Schedules of Specific Commitments). (4)
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 its Schedule in Annex 8B (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 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; (5)
(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.
3. If a Party undertakes a market-access commitment in relation to the supply of a service through a mode of supply referred to in subparagraph (a), (b), or (d) of the definition of “trade in services” in Article 8.1 (Definitions), that Party shall not require a service supplier of the other Party to establish or maintain a representative office, a branch, or any form of juridical person, or to be resident in its territory as a condition for the supply of that service through the relevant mode of supply, unless otherwise specified in its Schedule in Annex 8B (Schedules of Specific Commitments).
Article 8.4. National Treatment
1. Each Party shall, in the sectors inscribed in its Schedule in Annex 8B (Schedule of Specific Commitments) and subject to any conditions and qualifications set out therein, 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. (6)
2. A Party may meet the requirement under 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 the Party compared to like services or service suppliers of the other Party.
Article 8.5. Additional Commitments
1. The Parties may negotiate commitments with respect to measures affecting trade in services, including those regarding qualifications, standard or licensing matters, not subject to scheduling, under Article 8.4 (National Treatment) or Article 8.3 (Market Access).
2. A Party making additional commitments under paragraph 1 shall inscribe such commitments in its Schedule in Annex 8B (Schedules of Specific Commitments).
Article 8.6. Schedules of Specific Commitments
1. Each Party shall set out in its Schedule in Annex 8B (Schedules of Specific Commitments), the specific commitments it undertakes under Article 8.4 (National Treatment), Article 8.3 (Market Access), and Article 8.5 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule in Annex 8B (Schedules of Specific Commitments) 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 Article 8.4 (National Treatment) and Article 8.3 (Market Access) shall be inscribed in the column relating to Article 8.3 (Market Access). In this case, the inscription shall be considered to provide a condition or qualification to Article 8.4 (National Treatment) as well.
3. For greater certainty, Schedules of Specific Commitments shall be annexed to this Chapter as Annex 8B (Schedules of Specific Commitments) and shall form an integral part thereof.
Article 8.7. Most-Favoured-Nation Treatment (7)
1. Each Party shall, in respect of the sectors and subsectors set out in its Schedule in Annex 8C (Most-Favoured-Nation Treatment Sectoral Coverage) and subject to any terms, limitations, conditions and qualifications set out therein, accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-Party.
2. Notwithstanding paragraph 1, each Party reserves the right to adopt or maintain any measure that accords differential treatment to services and service suppliers of any non-Party under any bilateral or multilateral international agreement in force at, or signed prior to, the date of entry into force of this Agreement.
3. If, after the date of entry into force of this Agreement, a Party enters into any agreement with a non-Party in which it undertakes to provide treatment to services or service suppliers of that non-Party in a sector or subsector not set out in that Party’s Schedule in Annex 8C (Most-Favoured-Nation Treatment Sectoral Coverage), more favourable than that it accords under this Agreement to like services or service suppliers of the other Party, the other Party may request consultations to discuss the possibility of extending, under this Agreement, treatment no less favourable than that provided for in the agreement with the non-Party to services and service suppliers of the other Party. In such circumstances, the Parties shall enter into consultations bearing in mind the overall balance of benefits.
4. This Article shall not be 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.
Article 8.8. Domestic Regulation
1. For the purposes of this Article:
“authorisation” means permission to supply a service, resulting from a procedure to which a person of a Party must adhere in order to demonstrate compliance with licensing requirements or qualification requirements; and
“competent authority” means a central, regional, or local government or authority or non-governmental body in the exercise of powers delegated by a central, regional, or local government or authority, which is entitled to take a decision concerning authorisation for the supply of a service.
2. This Article shall:
(a) apply to sectors where specific commitments are undertaken in a Party’s Schedule in Annex 8B (Schedule of Specific Commitments); and
(b) not apply to any terms, limitations, conditions, or qualifications set out in a Party’s Schedule pursuant to Articles 8.3 (Market Access) or 8.4 (National Treatment).
3. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
4. Each Party shall maintain or institute as soon as practicable judicial, arbitral, or administrative tribunals or procedures which provide, on request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
5. Nothing in paragraph 4 shall be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
6. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards, and licensing requirements and procedures, do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the result of the WTO negotiation on disciplines on such measures, pursuant to Article VI.4 of GATS and shall amend this article, as appropriate, after consultation among the Parties to bring the results of those negotiations into effect under this Chapter. Such disciplines shall aim to ensure that such requirements, inter alia:
(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 and qualifications procedures, are not in themselves a restriction on the supply of the service.
7. (a) In sectors in which a Party has undertaken commitments, pending the entry into force of disciplines in these sectors pursuant to paragraph 6, the Party shall not apply licensing and qualification requirements and technical standards that nullify or impair such commitments in a manner which:
(i) does not comply with the criteria outlined in subparagraphs 6(a), (b), or (c); and
(ii) could not reasonably have been expected of that Party at the time the commitments in those sectors were made.
(b) In determining whether a Party is in conformity with its obligations under subparagraph 7(a), international standards of relevant international organisations (8) applied by that Party shall be taken into account.