"network element" means a facility or equipment used in supplying a public telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;
"non-discriminatory" means treatment no less favourable than those accorded to any other user of like public telecommunications networks or services in like situations;
"public telecommunications network" means any telecommunications network used wholly or mainly for the provision of public telecommunications services between network termination points;
"public telecommunications service" means any telecommunications service that is offered to the public generally;
"telecommunications" means the transmission and reception of signals by any electromagnetic means;
"telecommunications network" means transmission systems and, where 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 charged by a Party with the regulation of telecommunications networks and services covered by this Sub-Section;
"telecommunications service" means a service which consists wholly or mainly in the transmission and reception of signals, including of broadcasting signals, over telecommunications networks, including over networks used for broadcasting. Telecommunications services exclude services providing, or exercising, editorial control over content transmitted using telecommunications networks and services;
"universal service" means the minimum set of services of specified quality that must be made available to all users in the territory of a Party regardless of their geographical location and at an affordable price; and
"user" means any legal entity or natural person using a public telecommunications network or service.
Article ARTICLE 8.36
Telecommunications regulatory authority
Each Party shall ensure that its telecommunications regulatory authority is legally distinct and functionally independent from any supplier of telecommunications networks, telecommunications services or telecommunications equipment, and that the decisions of and the procedures used by the telecommunications regulatory authority are impartial with respect to all market participants. A Party that retains ownership or control of suppliers of telecommunications networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
The telecommunications regulatory authority shall act independently and shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to it under national law to enforce the obligations set out in Articles 8.38 (Interconnection), 8.39 (Access and Use), 8.40 (Resolution of Telecommunications Disputes), 8.42 (Interconnection with Major Suppliers) and 8.43 (Access to Major Suppliers’ Essential Facilities).
Each Party shall ensure that the telecommunications regulatory authority has the regulatory power, as well as adequate financial and human resources, to carry out the tasks assigned to it to enforce the obligations set out in this Sub-Section. Such power shall be exercised transparently and in a timely manner. The tasks to be undertaken by a regulatory authority shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
Each Party shall provide its telecommunications regulatory authority with the power to ensure that suppliers of telecommunications networks or services provide it, promptly upon 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 Sub-Section. Information requested shall be treated in accordance with the requirements of confidentiality.
Each Party shall ensure that a user or supplier of telecommunications networks or services affected by a decision of the telecommunications regulatory authority has the right to appeal against that decision to an appeal body that is independent of the telecommunications regulatory authority and of the parties affected by the decision. Pending the outcome of the appeal, the decision of the telecommunications regulatory authority shall stand, unless interim measures are granted in accordance with national law.
Article ARTICLE 8.37
Authorisation to provide telecommunications services
Where a Party requires an authorisation for the provision of telecommunications networks or services, the Party shall make publicly available the types of services requiring authorisation, all authorisation criteria, any terms and conditions generally associated with the authorisation, and the applicable procedures.
Where a Party requires a formal authorisation decision, it shall state a reasonable period of time normally required to obtain such a decision, communicate this in a transparent manner and shall endeavour to ensure that the decision is taken within the stated period of time.
Any authorisation criteria and applicable procedures shall be as simple as possible, objective, transparent, non-discriminatory and proportionate. Any obligations and conditions imposed on or associated with an authorisation shall be non-discriminatory, transparent, proportionate and related to the services provided.
Each Party shall ensure that an applicant receives in writing the reasons for the denial or the revocation of an authorisation, or the imposition of supplier-specific conditions. In such cases, an applicant shall be able to seek recourse before an appeal body.
Administrative fees imposed on suppliers, if any, shall be objective, transparent, non-discriminatory and commensurate with the administrative costs reasonably incurred in the management, control and enforcement of the obligations set out in this Sub-Section31.
31 Administrative fees do not include payments for rights to use scarce resources and mandated contributions to universal service provision.
Article ARTICLE 8.38
Interconnection
Each Party shall ensure that a supplier of public telecommunications networks or services has the right and, when requested by another supplier of public telecommunications networks or services, the obligation to negotiate interconnection for the purpose of providing public telecommunications networks or services.
Article ARTICLE 8.39
Access and use
Each Party shall ensure that any service supplier of the other Party is accorded access to and use of public telecommunications networks or services on reasonable and non-discriminatory terms and conditions. This obligation shall be applied, inter alia, through paragraphs 2 through 5 of this Article.
Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications service offered within or across the border of that Party, including private leased circuits, and to this end shall ensure, subject to the provisions in paragraph 5 of this Article, that such suppliers are permitted:
to purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to supply a supplier’s services;
to connect private leased or owned circuits with public telecommunications networks or with circuits leased or owned by another service supplier; and
to use operating protocols of their choice in the supply of any service, other than as necessary to ensure the availability of telecommunications services to the public generally.
Each Party shall ensure that service suppliers of the other Party may use public telecommunications networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of either Party.
Notwithstanding the provisions in paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of communications, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Each Party shall ensure that no condition is imposed on access to and use of public telecommunications services other than as necessary:
to safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their services available to the public generally; and
to protect the technical integrity of public telecommunications networks or services.
Article ARTICLE 8.40
Resolution of telecommunications disputes
Each Party shall ensure that, in the event of a dispute arising between suppliers of telecommunications networks or services in connection with rights and obligations that arise from this Sub-Section, and at the request of either party involved in the dispute, the telecommunications regulatory authority issues a binding decision within a reasonable timeframe to resolve the dispute.
The decision issued by the telecommunications regulatory authority shall be made available to the public, having regard to the requirements of business confidentiality. The Parties concerned shall be given a full statement of the reasons on which it is based and shall have the right to appeal this decision, according to paragraph 5 of Article 8.36 (Telecommunications Regulatory Authority).
The procedure referred to in paragraphs 1 and 2 of this Article shall not preclude either party concerned from bringing an action before the courts.
Article ARTICLE 8.41
Competitive safeguards
Each Party shall introduce or maintain appropriate measures for the purpose of preventing suppliers of telecommunications networks or services who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. These anti-competitive practices shall include in particular:
engaging in anti-competitive cross-subsidisation;
using information obtained from competitors with anti-competitive results; and
not making available to other services suppliers on a timely basis technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
For greater certainty, nothing in this Article shall prevent a Party from maintaining measures for the purpose of preventing anti-competitive practices by suppliers of public telecommunications networks or services who are not major suppliers.
Article ARTICLE 8.42
Interconnection with major suppliers
Each Party shall ensure that major suppliers of public telecommunications networks or services provide interconnection at any technically feasible point in the network. Such interconnection shall be provided:
under non-discriminatory terms and conditions (including as regards rates, technical standards, specifications, quality and maintenance) and of a quality no less favourable than that provided for the own like services of such major supplier, or for like services of its subsidiaries or other affiliates;
in a timely fashion, on terms and conditions (including as regards rates, technical standards, specifications, quality and maintenance) that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
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.
The procedures applicable for interconnection to a major supplier shall be made publicly available.
Major suppliers shall make publicly available either their interconnection agreements or their reference interconnection offers as appropriate.
Article ARTICLE 8.43
Access to major suppliers’ essential facilities
Each Party shall ensure that a major supplier in its territory makes its essential facilities available to suppliers of telecommunications networks or services on reasonable and non-discriminatory terms and conditions for the purpose of providing public telecommunications services, except when this is not necessary to achieve effective competition on the basis of the facts collected and the assessment of the market conducted by the telecommunications regulatory authority. The major supplier’s essential facilities may include, inter alia, network elements, leased circuits services and associated facilities.
Article ARTICLE 8.44
Scarce resources
Each Party shall ensure that the allocation and granting of rights of use of scarce resources, including radio spectrum, numbers and rights of way, is carried out in an open, objective, timely, transparent, non-discriminatory and proportionate manner and in pursuit of general interest objectives. Procedures, and conditions and obligations attached to rights of use, shall be based on objective, transparent, non-discriminatory and proportionate criteria.
The current use of allocated frequency bands shall be made publicly available, but detailed identification of radio spectrum allocated for specific government uses is not required.
A Party’s measures allocating and assigning spectrum and managing frequency are not measures that are per se inconsistent with Article [X.X] (Market Access) of Chapter [XX] (Title). Accordingly, each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of telecommunications services, provided that it does so in a manner consistent with this Title. This includes the ability to allocate frequency bands taking into account current and future needs and spectrum availability.
Article ARTICLE 8.45
Number portability
Under terms and conditions that accord national treatment [pursuant to Article 8.8 and 8.14], each Party shall ensure that suppliers of public telecommunications services provide number portability on reasonable terms and conditions to the extent that this service is already provided in the territory of each Party.
Article ARTICLE 8.46
Universal service
Each Party has the right to define the kind of universal service obligations it wishes to maintain and to decide on their scope and implementation.
Universal service obligations will not be regarded per se as anti-competitive, provided they are administered in a proportionate, transparent, objective and non-discriminatory way. The administration of such obligations shall be neutral with respect to competition and not be more burdensome than necessary for the kind of universal service defined by the Party.
Each Party shall ensure that procedures for the designation of universal service suppliers are open to all suppliers of public telecommunications networks or services. The designation shall be made through an efficient, transparent and non-discriminatory mechanism.
Where a Party decides to compensate the universal service suppliers, it shall ensure that such compensation does not exceed the net cost caused by the universal service obligation.
Article ARTICLE 8.47
Confidentiality of information
Each Party shall ensure that suppliers that acquire information from another supplier in the process of negotiating arrangements pursuant to Articles 8.38 (Interconnection), 8.39 (Access and Use), 8.42 (Interconnection with Major Suppliers) or 8.43 (Access to Major Suppliers’ Essential Facilities) use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored.
Each Party shall ensure the confidentiality of telecommunications and related traffic data transmitted in the use of public telecommunications networks or services, subject to the requirement that measures applied to that end do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
SUB-SECTION 5 FINANCIAL SERVICES
Article ARTICLE 8.48
Scope and definitions
This Sub-Section sets out the principles of the regulatory framework for all financial services liberalised pursuant to Sections B, C, and D of this chapter.
For the purpose of this Sub-section and of Sections B, C and D of this chapter
"financial service" means any service of a financial nature offered by a financial service supplier of a Party. Financial services comprise the following activities:
insurance and insurance-related services
direct insurance (including co-insurance): (aa) life;
(bb) non-life;
reinsurance and retrocession;
insurance inter-mediation, such as brokerage and agency; and
services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.
banking and other financial services (excluding insurance):
acceptance of deposits and other repayable funds from the public;
lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
financial leasing;
all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
guarantees and commitments;
trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(aa) money market instruments (including cheques, bills, certificates of deposits); (bb) foreign exchange;
(cc) derivative products including, but not limited to, futures and options;
(dd) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(ee) transferable securities;
(ff) other negotiable instruments and financial assets, including bullion;
participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
money broking;
asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (A) through (K), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
"financial service supplier" means any natural or juridical person of a Party that seeks to provide or provides financial services. The term “financial service supplier” does not include a public entity.
"public entity32" means:
a government, a central bank or a monetary authority, of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
"new financial service" means a financial service including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied and regulated in the territory of the other Party.
"self-regulatory organisation" means any non-governmental body, including any securities or futures exchange or market, clearing agency, other organisation or
32 For greater certainty, a public entity includes a financial regulatory and/or supervisory authority.
association, that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from central, regional or local governments or authorities, where applicable.
For the purposes of the application of subparagraph (i) of paragraph 1 of article 8.3 of this chapter to this Sub-Section, "services supplied in the exercise of governmental authority" means the following:
activities conducted by a central bank or a monetary authority or by any public entity in pursuit of monetary or exchange rate policies;
activities forming part of a statutory system or social security or public retirement plans; and
other activities conducted by a public entity for the account or with the guarantee or using the financial resources of a Party or its public entities.
Article ARTICLE 8.49
Prudential carve-out
Nothing in this Agreement shall prevent a Party from adopting or maintaining measures for prudential reasons, such as:
the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier;
ensuring the integrity and stability of a Party’s financial system.
Where the measures referred to in paragraph 1 do not conform to the other provisions of this Agreement, they shall not be used as a means of avoiding each Party’s commitments or obligations under such provisions.
Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual consumers or any confidential or proprietary information in the possession of public entities.
Article ARTICLE 8.50
Effective and transparent regulation
Each Party shall make available to financial services suppliers its requirements for completing applications relating to the supply of financial services.
On the request of an applicant, the concerned Party shall inform the applicant of the status of its application. If the concerned Party requires additional information from the applicant, it shall notify the applicant without undue delay.
Each Party shall make its best endeavours to ensure that internationally agreed standards for regulation and supervision in the financial services sector and for the fight against tax evasion and avoidance and against money laundering and terrorist financing are implemented and applied in its territory. Such internationally agreed standards are, inter alia, those adopted by the G20, the Financial Stability Board, the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors, the International Organisation of Securities Commissions, the Financial Action Task Force and the Global Forum on Transparency and Exchange of Information for Tax Purposes.
Article ARTICLE 8.51
New financial services
Each Party shall permit a financial service supplier of the other Party established in its territory to provide any new financial service that the former Party would permit its own financial service suppliers to provide in accordance with its domestic laws or regulations in like situations, provided that the introduction of the new financial services does not require a new law or modification of an existing law. A Party may determine the institutional and legal form through which the service may be provided and may require authorisation for the provision of the service. Where such authorisation
is required, a decision shall be made in accordance with Sub-Section 1 to Section E[Domestic Regulation] and the authorisation may only be refused for prudential reasons.
Article ARTICLE 8.52
Specific exceptions
Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing in its territory activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the Party’s domestic regulation, by financial service suppliers in competition with public entities or private institutions.
Nothing in this Agreement applies to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies.
Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account or with the guarantee or using the financial resources of the Party, or its public entities, except when those activities may be carried out, as provided by the Party’s domestic regulation, by financial service suppliers in competition with public entities or private institutions.
Article ARTICLE 8.53
Self-regulatory organisations
When a Party requires membership of, participation in, or access to, any self-regulatory organisation in order for financial service suppliers of the other Party to supply financial services in or into the territory of the first Party, the Party shall ensure observance of the obligations under Articles 8.8 (National Treatment) and 8.9 (Most Favored Nation Treatment) as well as 8.14 (National Treatment) and 8.15 (Most Favored Nation Treatment).