2. If a Party does not provide advance notice and opportunity for comment pursuant to paragraph 2 of Article 28.2 (Publication - Transparency and Anti- Corruption) with respect to regulations that relate to the subject matter in this Chapter, it shall, to the extent practicable, provide in writing or otherwise notify interested persons of the reasons for not doing so.
3. To the extent possible, each Party shall allow reasonable time between publication of final regulations and the date when they enter into effect.
Article 8.12. Payments and Transfers
1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory and good faith application of its law (25) that relates to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 8.13. Committee on Services and Investment
1. The Parties hereby establish a Committee on Services and Investment, composed of government representatives of each Party. (26)
2. The Committee shall:
(a) review and monitor the implementation and operation of this Chapter (which includes Annex 8A (Express Delivery Services) and Annex 8B (International Maritime Transport Services)), Chapter 9 (Financial Services) (which includes Annex 9A (Cross-Border Trade in Financial Services), Annex 9B (Authorities Responsible for Financial Services) and Annex 9C (Financial Services Regulatory Cooperation)), Chapter 10 (Professional Services and thE Recognition of Professional Qualifications), Chapter 11 (Temporary Entry for Business Persons), Chapter 12 (Telecommunications), Chapter 13 (Investment), and Chapter 14 (Digital Trade) ("the relevant Chapters");
(B) consider ways to further enhance trade and investment between the Parties, including through amendments to each Party's Schedules to Annex I (Schedules of Non-conforming Measures for Services and Investment), Annex II (Schedules of Non-conforming Measures for Services and Investment), Annex III (Schedules of Non-Conforming Measures for Financial Services)and Annex IV (Schedules of Specific Commitments on Temporary Entry for Business Persons); and
(c) facilitate the exchange of information between the Parties in relation to the relevant Chapters.
3. The Committee may:
(a) make recommendations, or refer matters, to the Joint Committee; establish ad hoc working groups, as appropriate;
(b) refer matters to any ad hoc or standing working group or any other subsidiary body related to the relevant Chapters; and
(c) consider any other matter related to the relevant Chapters, or as directed by the Joint Committee.
(d) The Committee shall meet one year after entry into force, and thereafter as agreed by both Parties.
4. The Committee shall report to the Joint Committee.
Chapter 9. FINANCIAL SERVICES
Article 9.1. Definitions
For the purposes of this Chapter:
"cross-border financial service supplier" means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of that service;
"cross-border trade in financial services" or "cross-border supply of financial services" means the supply of a financial service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the supply ofa financial service in the territory of a Party by an investment in that territory;
"commercial presence" means any type of business or professional establishment, including through:
(a) the constitution, acquisition or maintenance of an enterprise; or
(b) the creation or maintenance of a branch or representative office,
within the territory of a Party for the purposes of supplying a service, including a financial service;
"electronic payments" means the payer's transfer of a monetary claim acceptable to the payee made through electronic means;
"enterprise of a Party" means:
(a) an enterprise constituted or organised under the law of that Party and carrying out substantial business activities in the territory of that Party; or
(b) an enterprise that is constituted or organised under the law of that Party and is directly or indirectly owned or controlled by a national of that Party or by an enterprise referred to in subparagraph (a);
"established financial service supplier" means a financial service supplier that supplies a financial service through commercial presence;
"established financial service supplier of the other Party" means an established financial service supplier located in the territory of a Party that is controlled by a person of the other Party;
"financial service supplier" means any person of a Party seeking to supply or supplying financial services, but does not include a public entity;
"financial service" means any service of a financial nature, including all insurance and insurance related services, all banking and other financial services (excluding insurance), and services incidental or auxiliary to a service of a financial nature. Financial services include the following activities: Insurance and insurance-related services
(a) direct insurance (including co-insurance):
(i) life;
(Ii) non-life;
(b) reinsurance and retrocession;
(c) insurance intermediation, such as brokerage and agency; and
(d) services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services;
Banking and other financial services (excluding insurance)
(e) acceptance of deposits and other repayable funds from the public;
(f) lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(g) financial leasing;
(h) all payment and money transmission services, including credit, charge and debit cards, travellers cheques, and bankers drafts;
(i) guarantees and commitments;
(j) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(i) money market instruments (including cheques, bills or certificates of deposits);
(ii) foreign exchange;
(iii) derivative products including futures and options;
(iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(v) transferable securities; or
(vi) other negotiable instruments and financial assets, including bullion;
(k) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately), and provision of services related to those issues;
(l) money broking;
(m) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(n) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(o) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(p) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (e) through (0), including credit reference and analysis, investment and portfolio research and advice, and advice on acquisitions and on corporate restructuring and strategy;
"financial service computing facility" means a computer server or storage device for the processing or storage of information for commercial use but does not include computer servers or storage devices of, or used to operate, financial market infrastructures;
"financial market infrastructures" means systems in which financial service suppliers participate with other financial service suppliers, including the operator of the system, used for the purposes of clearing, settling, or recording of payments, securities, derivatives, or other financial transactions;
"investment" means "investment" as defined in Article 13.1 (Definitions - Investment), (1) except that for the purposes of this Chapter, with respect to "loans" and "debt instruments" referred to in that Article:
(a) a loan to or debt instrument issued by an established financial service supplier is an investment only if it is treated as regulatory capital by the Party in whose territory the established financial service supplier is located; and
(b) a loan granted by or debt instrument owned by an established financial service supplier, other than a loan to or debt instrument issued by an established financial service supplier referred to in subparagraph (a), is not an investment;
"investor" means a Party, or a person of a Party, that attempts to make, (2) is making, or has made an investment in the territory of the other Party;
"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 ofa Party, but which is supplied in the territory of the other Party;
"person of a Party" means a national or an enterprise of a Party and, for greater certainty, does not include a branch of an enterprise of a non-party;
"public entity" means:
(a) a government, a central bank or a monetary authority of a Party or any 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
(b) a private entity performing functions normally performed by a central bank or monetary authority when exercising those functions; and
"self-regulatory organisation" means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from central or regional government.
Article 9.2. Scope
1. This Chapter applies to any measure adopted or maintained by a Party affecting trade in financial services with respect to:
(a) an established financial service supplier of the other Party;
(b) an investor of the other Party, and an investment of that investor, in an established financial service supplier in the Partyâs territory; and
(c) cross-border financial service suppliers.
2. Chapter 8 (Cross-Border Trade in Services) and Chapter 13 (Investment) apply to measures described in paragraph 1 only to the extent that those Chapters or Articles of those Chapters are incorporated into this Chapter:
(a) Article 8.10 (Denial of Benefits – Cross-Border Trade in Services), Article 13.7 (Minimum Standard of Treatment – Investment), Article 13.8 (Treatment in Case of Armed Conflict or Civil Strife – Investment), Article 13.9 (Expropriation and Compensation – Investment), Article 13.10 (Transfers – Investment), Article 13.14 (Subrogation – Investment), Article 13.15 (Special Formalities and Information Requirements – Investment), Article 13.16 (Denial of Benefits – Investment), Article 13.17 (Investment and Environmental, Health and other Regulatory Objectives – Investment), Article 13.18 (Investment and the Environment – Investment), and Article 13.19 (Corporate Social Responsibility – Investment) are incorporated into and made a part of this Chapter; and
(b) Article 8.12 (Payments and Transfers – Cross-Border Trade in Services) is incorporated into and made a part of this Chapter to the extent that cross-border trade in financial services is subject to obligations pursuant to paragraph 3 of Article 9.5 (National Treatment) and subparagraph 1(c) of Article 9.6 (Market Access).
3. This Chapter does not apply to a measure adopted or maintained by a Party relating to:
(a) activities or services forming part of a public retirement plan or statutory system of social security; or
(b) activities or services conducted for the account or with the guarantee or using the financial resources of the Party, including its public entities,
except that this Chapter applies to the extent that a Party allows any of the activities or services referred to in subparagraph (a) or (b) to be conducted by its financial service suppliers in competition with a public entity ora financial service supplier.
4. This Chapter does not apply to government procurement of financial services.
5. This Chapter does not apply to subsidies or grants provided by a Party with respect to the supply of financial services, including government-supported loans, guarantees and insurance.
6. This Chapter does not impose any obligation on a Party with respect to a national 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 national 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.
Article 9.3. Prudential Exception
1. Notwithstanding any other provisions of this Chapter and Agreement except for Chapter 2 (Trade in Goods), Chapter 4 (Rules of Origin and Origin Procedures), Chapter 5 (Customs Procedures and Trade Facilitation), Chapter 6 (Sanitary and Phytosanitary Measures), and Chapter 7 (Technical Barriers to Trade), a Party shall not be prevented from adopting or maintaining measures for prudential reasons,(3) including:
(a) the protection of investors, depositors, policy holders, or persons to whom a financial service supplier owes a fiduciary duty;
(b) the maintenance of the safety, soundness, integrity, or financial responsibility of an established financial service supplier or, a cross- border financial service supplier; or
(c) ensuring the integrity and stability of a Party's financial system.
2. Where those measures do not conform with the provisions of this Agreement to which this exception applies, they shall not be used as a means of avoiding the Party's commitments or obligations under those provisions.
Article 9.4. Specific Exceptions
1. Nothing in this Chapter, Chapter 8 (Cross-Border Trade in Services), Chapter 12 (Telecommunications), Chapter 13 (Investment) or Chapter 14 (Digital Trade), shall apply to measures taken or activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary policies and related credit policies, or exchange rate policies. This paragraph shall not affect a Party's obligations under Article 13.11 (Performance Requirements - Investment) with respect to measures covered by Chapter 13 (Investment), under Article 13.10 (Transfers â Investment) or Article 8.12 (Payments and Transfers - Cross-Border Trade in Services).
2. Nothing in this Chapter shall require a Party to:
(a) furnish or allow access to information relating to the financial affairs and accounts of individual customers of financial service suppliers or to any confidential or proprietary information which, if disclosed, would impede law enforcement, interfere with specific regulatory or supervisory matters, or would otherwise be contrary to public interest or prejudice legitimate commercial interests of particular enterprises; or
(b) disclose confidential or proprietary information in the possession of public entities.
Article 9.5. National Treatment (4)
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of established financial service suppliers, and investments in established financial service suppliers in its territory.
2. Each Party shall accord to established financial service suppliers of the other Party, and to investments of investors of the other Party in established financial service suppliers, treatment no less favourable than that it accords, in like circumstances, to its own established financial service suppliers, and to investments of its own investors in established financial service suppliers with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of established financial service suppliers and investments.
3. Each Party shall accord to:
(a) financial services as specified by the Party in Annex 9A (Cross- Border Trade in Financial Services) or cross-border financial service suppliers of the other Party seeking to supply or supplying those financial services; and
(b) cross-border financial service suppliers of the other Party seeking to supply or supplying financial services as defined in subparagraph (b) or subparagraph (c) of the definition of "cross-border trade in financial services" or financial services supplied through that cross-border trade,
treatment no less favourable than that it accords, in like circumstances, to its own financial services and financial service suppliers.
4. For greater certainty, the treatment to be accorded by a Party under paragraphs 1 through 3 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to established financial service suppliers, investors, and investments of those investors in established financial service suppliers, or financial services or financial service suppliers, of the Party of which it forms a part.
Article 9.6. Market Access
1. A Party shall not adopt or maintain, with respect to:
(a) an established financial service supplier of the other Party;
(b) an investor or an investment of an investor of the other Party in an established financial service supplier in the Party's territory; or
(c) across-border financial service supplier of the other Party:
(i) seeking to supply or supplying the financial services as specified by the Party in Annex 9A (Cross-Border Trade in Financial Services); or
(ii) seeking to supply or supplying financial services as defined in subparagraph (b) or subparagraph (c) of the definition of "cross-border trade in financial services",
either on the basis of its entire territory or on the basis of the territory of a central, regional, or local level of government, a measure that:
(d) imposes limitations on:
(i) the number of established financial service suppliers or cross-border financial service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(ii) the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of financial service operations or the total quantity of financial services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (5)
(iv) the participation of foreign capital in terms of maximum percentage limit on foreign shareholding in established financial service suppliers or the total value of individual or aggregate foreign investment in established financial service suppliers;
(v) the total number of natural persons that may be employed ina particular financial services sector or that an established financial service supplier or cross-border financial service supplier may employ and who are necessary for, and directly related to, the supply of a specific financial service in the form of numerical quotas or the requirement of an economic needs test; or
(e) restricts or requires specific types of legal entity or joint venture through which an established financial service supplier or cross- border financial service supplier may supply a service.
2. For greater certainty, this Article does not prevent a Party imposing terms, conditions, and procedures for the authorisation of the establishment and expansion of a commercial presence in so far as they do not circumvent the Party's obligation under paragraph 1 and are consistent with the other provisions of this Chapter.
Article 9.7. Local Presence
Neither Party shall require a cross-border financial service supplier of the other Party to establish or maintain a representative office, or an enterprise or a branch of an enterprise, or to be resident in its territory, as a condition for the cross-border supply of a financial service. With respect to cross-border supply as defined in subparagraph (a) of the definition of "cross-border trade in financial services", this Article only applies to the financial services specified by the Party in Annex 9A (Cross-Border Trade in Financial Services).
Article 9.8. Most-Favoured-Nation Treatment
Each Party shall accord to:
(a) investors and investments of investors of the other Party in established financial service suppliers, treatment no less favourable than that it accords, in like circumstances, to investors and investments of investors of a non-party in established financial service suppliers;
(b) established financial service suppliers of the other Party, treatment no less favourable than that it accords, in like circumstances, to established financial service suppliers of a non-party;
(c) financial services or cross-border financial service suppliers of the other Party, treatment no less favourable than that it accords, in like circumstances, to financial services and cross-border financial service suppliers of a non-party. (6)
2. For greater certainty, the treatment referred to in this Article does not encompass international dispute resolution procedures or mechanisms.
Article 9.9. Senior Management and Boards of Directors
1. Neither Party shall require established financial service suppliers of the other Party, to engage natural persons of any particular nationality as members of the board of directors, senior managerial or other essential personnel.