Article 9.9. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. If a Party adopts or maintains a measure relating to the authorisation for the supply of a service of general application, the Party shall, with respect to that measure, ensure that:
(a) the measure is based on objective and transparent criteria; (7)
(b) the competent authority reaches and administers any decision in a manner independent from any supplier of the service for which authorisation is required; (8)
(c) the procedures in the measure are impartial, adequate for applicants to demonstrate whether they meet the requirements for authorisation, and do not in themselves unjustifiably prevent fulfilment of a requirement;
(d) to the extent practicable, the measure does not require an applicant to approach more than one competent authority for each application for authorisation; (9) and
(e) the measure does not discriminate between men and women. (10)
3. Where authorisation is required for the supply of a service on which a specific commitment under this Chapter has been made, the competent authorities of each Party shall:
(a) within a reasonable period of time after the submission of an application considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application;
(b) in the case of an incomplete application:
(i) inform the applicant that the application is incomplete; and
(ii) on request of the applicant, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(c) on request of the applicant, provide without undue delay information concerning the status of the application; and
(d) if an application is terminated or denied, to the extent practicable, inform the applicant in writing, and without delay, the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
4. If a Party requires authorisation for the supply of a service, the Party shall promptly publish or otherwise make publicly available the information necessary to comply with requirements or procedures for obtaining, maintaining, amending, and renewing that authorisation. That information shall include:
(a) any fee;
(b) the contact information of the relevant competent authorities;
(c) any procedure for appeal or review of a decision concerning an application;
(d) any procedure for monitoring or enforcing compliance with the terms and conditions of licenses or qualifications;
(e) any opportunities for public involvement, such as through hearings or comments;
(f) any indicative timeframe for processing of an application;
(g) any requirement or procedure; and
(h) any technical standard.
5. If a Party requires authorisation for the supply of a service, it shall ensure that each competent authority:
(a) endeavours to accept applications in electronic format;
(b) endeavours to accept requests to take any required examination in electronic format and to consider, to the extent practicable, the use of electronic means in other aspects of the examination process; and
(c) accepts copies of documents, that are authenticated in accordance with the Party's domestic laws and regulations, in place of original documents, unless the competent authorities require original documents to protect the integrity of the authorisation process.
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, in sectors where specific commitments are undertaken, aim to ensure that such requirements are:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
7. In determining whether a Party is in conformity with the obligation under subparagraph 6, account shall be taken of international standards of relevant international organisations applied by that Party. (11)
8. Each Party shall ensure that any authorisation fee charged by each of its competent authorities is reasonable, transparent, based on authority set out in a measure, and does not, in itself, restrict the supply of the relevant service. (12)
9. Each Party shall endeavour to ensure that measures related to authoristion do not impose disproportionate burdens on micro-, small-, and medium-sized enterprises.
10. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party.
11. The Parties shall jointly review the results of the negotiations on disciplines on domestic regulation, pursuant to Article VI.4 of the GATS, with a view of incorporating them into this Chapter.
Article 9.10. Recognition
1. For the purposes of the fulfilment, in whole or in part, ofits standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to paragraph 4, a Party may recognise, or encourage its relevant competent bodies to recognise, the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or their relevant competent bodies, or may be accorded autonomously.
2. If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party, nothing in Article 9.4 shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party.
3. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-party, that Party shall afford the other Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education, experience, licences or certifications obtained or requirements met in that other Party's territory should also be recognised.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-parties in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
5. The Parties agree to encourage, where possible, the relevant bodies in their respective territories responsible for issuance and recognition of professional and vocational qualifications to:
(a) strengthen cooperation and to explore possibilities for mutual recognition of respective professional and vocational qualifications; and
(b) pursue mutually acceptable standards and criteria for licensing and certification with respect to service sectors of mutual importance to the Parties.
Article 9.11. Payments and Transfers
1. Except under the circumstances envisaged in Article 21.5 (Restrictions to Safeguard the Balance-of-Payments), a Party shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of a Party as a member of the International Monetary Fund (hereinafter referred to as the IMF) under the IMF Articles of Agreement, including the use of exchange actions which are in conformity with the IMF Articles of Agreement, provided that a Party shall not impose restrictions on any capital transaction inconsistently with its specific commitments regarding such transactions, except under Article 21.5 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
Article 9.12. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under Article 9.4, and its specific commitments.
2. Where a Party's monopoly supplier of a service competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's commitments, that Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 9.13. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 9.12, may restrain competition and thereby restrict trade in services.
2. Each Party shall, on request of any other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The requested Party shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The requested Party may also provide other information available to the requesting Party, subject to its laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 9.14. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier that is a juridical person, if persons of a non-party own or control that juridical person and the denying Party adopts or maintains measures with respect to the non-party or a person of the non-party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person.
2. In the case of the supply of a maritime transport service, a Party may deny the benefits of this chapters if it establishes that the service is supplied:
(a) by a vessel registered under the laws of a non-party, and
(b) by a person of a non-party which operates or uses the vessel in whole or in part.
3. A Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is a juridical person owned or controlled by persons of a non-party or by persons of the denying Party that have no substantial business activities in the territory of the denying Party.
Article 9.15. Review
1. In any review of this Agreement conducted in accordance with Article 19.6 (General Review) the Parties shall review this Chapter and related Annexes and Schedules so as to progressively liberalise trade in services between the Parties.
2. The first such review shall take place five years after the entry into force of this Agreement unless the Parties agree otherwise.
3. Further to paragraph 1, the Parties shall review their approach to the scheduling of commitments in accordance with Article 9.3, including whether either Party considers it appropriate to transition to making commitments on a negative list basis.
Article 9.16. Annexes
The following Annexes form an integral part of this Chapter:
(a) Annex 9-A (Financial Services);
(b) Annex 9-B (Telecommunications Services);
(c) Annex 9-C (Schedule of Specific Commitments of New Zealand);
(d) Annex 9-D (Schedule of Specific Commitments of UAE); and
(e) Annex 9-E (MFN Sectoral Coverage List).
ANNEX 9-A. FINANCIAL SERVICES
1. Scope and Definition
(a) This Annex applies to measures affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in the definition of "trade in services" contained in Article 9.1.
(b) For the purposes of the definition of "services" contained in Article 9.1 (Definitions), "service supplied in the exercise of governmental authority" means the following:
(i) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(ii) activities forming part of a statutory system of social security or public retirement plans; and
(iii) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.
(c) For the purposes of the definition of "services" contained in Article 9.1 (Definitions), if a Party allows any of the activities referred to in subparagraphs (b)(ii) or (b)(iii) of this paragraph to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, "services" shall include such activities.
(d) The definition of "service supplied in the exercise of governmental authority" contained in Article 9.1 (Definitions) shall not apply to services covered by this Annex.
2. Domestic Regulation
(a) Notwithstanding any other provisions of Chapter 9 (Trade in Services), a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of Chapter 9 (Trade in Services), they shall not be used as a means of avoiding the Party's commitments or obligations under Chapter 9 (Trade in Services).
(b) Nothing in the Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
3. Recognition
(a) A Party may recognize prudential measures of a non-Party in determining how the Party's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the non-Party concerned or may be accorded autonomously.
(b) A Party that is a party to such an agreement or arrangement referred to in subparagraph (a), whether future or existing, shall afford adequate opportunity for the other Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances exist.
4. Dispute Settlement
Panels for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
5. Definitions
For the purposes of this Annex:
(a) A financial service is any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
Insurance and insurance-related services
(i) Direct insurance (including co-insurance):
(A) life
(B) non-life
(ii) Reinsurance and retrocession;
(iii) Insurance intermediation, such as brokerage and agency;
(iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.
Banking and other financial services (excluding insurance)
(v) Acceptance of deposits and other repayable funds from the public;
(vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) Financial leasing;
(viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(ix) 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:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities;
(F) other negotiable instruments and financial assets, including bullion.
(xi) 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;
(xii) Money broking;
(xiii) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(xiv) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xv) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
(xvi) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (v) through (xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
(b) A financial service supplier means any natural or juridical person of a Party wishing to supply or supplying financial services but the term "financial service supplier" does not include a public entity.
(c) "Public entity" means:
(i) a government, a central bank or a monetary authority, ofa 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
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
ANNEX 9-C . NEW ZEALAND - SCHEDULE OF SPECIFIC COMMENTS
EXPLANATORY NOTES
1. Specific commitments in this schedule are prepared in accordance with the WTO Secretariat paper entitled "Scheduling of Initial Commitments on Trade in Services: Explanatory Note" (MTN.GNS/W/164). The classification of sectors in this schedule is based on the 1991 provisional Central Product Classification (CPC) of the United Nations Statistical Office, while the ordering reflects the classification system used by the WTO Secretariat in MTN.GNS/W/120. In the context of CPC listings in the schedule, the use of ** against individual CPC listings indicates that the service specified constitutes only part of the total range of activities covered by the CPC concordance.
Overseas Investment
2. An “overseas person” is defined as an individual not normally resident in New Zealand; a company not incorporated in New Zealand; a New Zealand-incorporated company in which 25 percent or more of any class of shares or 25 per cent or more of the voting power is held by overseas persons; or a nominee of the overseas person, whether or not the nominee is himself/herself an overseas person.
Maritime Transport Services
3. Cabotage: for purposes of this schedule only, cabotage is defined as the transportation of passengers or goods between a port located in New Zealand and another port located in New Zealand and traffic originating and terminating in the same port located in New Zealand.
4. Maritime Freight Forwarding Services: the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information.
5. Container Station and Depot Services: activities consisting of storing containers, whether in port or inland, with a view to their stuffing/stripping, repairing and making them available for shipments.
6. Maritime Agency Services: activities consisting of representing as an agent, the business interests of one or more shipping lines, for the following purposes:
• Marketing and sales of maritime transport and related services, from quotation to invoicing, and issuing bills of lading on behalf of the companies; acquisition and resale of the necessary related services, preparation of documentation, and provision of business information;
• Acting on behalf of the companies organising the call of a ship or taking over cargoes when required.
Most-Favoured-Nation Treatment
7. In accordance with Article 9.4 (Most-Favoured-Nation Treatment), New Zealand’s commitments on Most-Favoured-Nation Treatment are set out in Appendix I (Most-Favoured-Nation Treatment List) to this Schedule.
8. Most-Favoured-Nation treatment applies to only Modes 1, 2, and 3, and does not apply to measures with respect to the supply of services by presence of natural persons.
9. Unbound* means unbound due to technical feasibility.
Modes of Supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial Presence 4) Presence of Natural Persons
I. HORIZONTAL COMMITMENTS
| Sector or Sub-sector | Limitations on Market Access | Limitations on National Treatment | Additional Commitments |
| ALL SECTORS INCLUDED IN THIS SCHEDULE | (1)(2)(3)(4) New Zealand remains unbound with respect to: (a) the provision of public law enforcement and correctional services; and (b) the following, to the extent that they are social services established for a public purpose: child care; health; income security and insurance; public education; public housing; public training; public transport; public utilities; social security and insurance; or social welfare. | (3) Consent under the Overseas Investment Act 2005 or its successor legislation is required for the following investments by an “overseas person”: (1) (a) acquisition or control by non- government sources of 25 per cent or more of any class of shares (2) or voting power (3) in a New Zealand entity where either the consideration for the transfer or the value of the assets exceeds NZ$200 million; |