Obligations Concerned
Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
The HKSAR reserves the right to adopt or maintain any measure with respect to Gambling and betting services (part of CPC 964).
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to RECREATIONAL, CULTURAL AND SPORTING SERVICES, except for:
(a) Entertainment services (CPC 9619) (other than Circus, amusement park and similar attraction services (CPC 96194) and Other entertainment services n.e.c. (CPC 96199));
(b) Library and archives services (CPC 9631); and
(c) Sporting and other recreational services.
HKSAR-19
Sector
TRANSPORT SERVICES
Maritime Transport Services
Industry Classification
Obligations Concerned
Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to:
(a) Cabotage (37) transport; and
(b) Provision of certain port services (pilotage; anchorage, berth and berthing services; towing and tug assistance; provisioning, fuelling and watering; garbage collecting and ballast waste disposal; port captain's services; navigation aids; shore-based operational services essential to ship operation, including communications, water and electrical supplies; and emergency repair facilities). However, no measures shall be applied which deny Australian maritime transport service suppliers reasonable and non-discriminatory access to the above port services.
HKSAR-20
Sector
TRANSPORT SERVICES
Internal Waterways Transport
Space Transport
Other Transport Services (38)
Industry Classification
Obligations Concerned Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to the services as set out above.
HKSAR-21
Sector
TRANSPORT SERVICES
Air Transport Services or related services in support of air services
Industry Classification
Obligations Concerned Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Non-Discriminatory Treatment as Compared with a Non-Party's Investors (Article 5)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to Air Transport Services or related services in support of air services, except for:
(a) Selling and marketing of air transport services;
(b) Computer reservation system services;
(c) Airline representation services; except that airline representation services relating to passenger handling services are subject to the limitations as set out under paragraph (d) below;
(d) Passenger handling services (39); except that:
(i) Passenger handling permits may be granted to airlines or agents acting for airlines subject to land availability and the operational relationship of the permit applicant with the relevant airlines as well as reservation of autonomy by the Airport Authority to set a ceiling on the total number of Passenger Handling Permits at the Hong Kong International Airport based on review, from time to time, on the service demand and market sustainability, having regard to the optimisation of land usage and operation constraints;
(ii) Permit holders are required to provide a local presence to keep close liaison with the Airport Authority and offer fast response in service monitoring and maintaining efficient day-to-day airport operations; and
(iii) Permit holders shall implement a comprehensive quality management system addressing the quality aspects of its activities and work at the Hong Kong International Airport during the subsistence of the permit; and
(e) Ramp handling services (40); except that:
(i) Ramp handling licences may be granted subject to land availability and the operational relationship of the licence applicant with the relevant airlines as well as subject to the reservation of autonomy by the Airport Authority to set a ceiling on the total number of licensees at the Hong Kong International Airport based on review, from time to time, on the service demand and market sustainability having regard to the optimisation of land usage and operation constraints;
(ii) Unless with the Airport Authority's consent, the controlling shareholder of a licensee shall not be the controlling shareholder of any other service provider providing ground handling services (including similar services, i.e. ramp handling services) at the Hong Kong International Airport;
(iii) The licensee is required to be set up as a sole purpose company for the relevant licence only; and
(iv) The licensee shall provide services in accordance with the key performance indexes set up by the Airport Authority. The Airport Authority shall, at its absolute discretion, review and revise the key performance index and service standards when necessary.
HKSAR-22
Sector
TRANSPORT SERVICES
Rail Transport Services
Railway construction and project implementation
Industry Classification
Obligations Concerned Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to the services as set out above except for:
(a) Pushing and towing services (CPC 7113);
(b) Maintenance and repair of rail transport equipment (part of CPC 8868); and
(c) Supporting services for rail transport services (CPC 743).
Paragraph (a), paragraph (b) and paragraph (c) do not include those services relating to cross boundary train services (including Intercity Passenger Services and Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link).
Note: For transparency, the MTR Corporation Limited (Corporation) has been granted a franchise to operate railway (including maintenance of railway assets, construction of any extension and any other railway which the Secretary for Transport and Housing has authorised the Corporation to construct, and management of railway premises and related transport interchanges) in the HKSAR for a period of 50 years from 2 December 2007. The Corporation may apply for extension of the franchise.
HKSAR-23
Sector
TRANSPORT SERVICES
Road Transport Services
Industry Classification
Obligations Concerned
Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to Road Transport Services, except for:
(a) Freight transportation (CPC 7123);
(b) Rental services of commercial freight vehicles with operator (CPC 71240); and
(c) Maintenance and repair of road transport equipment (CPC 6112 and 8867).
HKSAR-24
Sector
TRANSPORT SERVICES
Services auxiliary to all modes of transport
Industry Classification
CPC 741 CPC 742
Cargo-handling services
Storage and warehousing services, including distribution centre services and materials handling and equipment services such as container station and depot services
Obligations Concerned
Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to:
(a) Cargo-handling services in respect of air (except in respect of ramp handling services (41)) and rail; and
(b) Storage and warehousing services, including distribution centre services and materials handling and equipment services such as container station and depot services, in respect of air (except in respect of ramp handling services41) and rail.
HKSAR-25
Sector
OTHER SERVICES NOT INCLUDED ELSEWHERE
Industry Classification
CPC 95 Services of membership organisations
CPC 97 Other services
CPC 98 Private households with employed persons
CPC 99 Services provided by extraterritorial organisations and bodies
Obligations Concerned
Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description
For Mode 3, the HKSAR reserves the right to adopt or maintain any measure with respect to the services as set out above, except for Spa services (part of CPC 9702).
Annex II. Expropriation
The Parties confirm their shared understanding that:
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Article 10.1 (Expropriation and Compensation) addresses two situations. The first is direct expropriation, in which an investment is directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by Article 10.1 (Expropriation and Compensation) is indirect expropriation, in which an action or a series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or a series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) The economic impact of the government action, although the fact that an action or a series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) The extent to which the government action interferes with distinct, reasonable investment-backed expectations (42); and
(iii) The character of the government action.
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health (43), safety and the environment, do not constitute indirect expropriations.
Annex III.
A decision under Australia's foreign investment framework, which consists of the Foreign Acquisitions and Takeovers Act 1975 (Cth), Foreign Acquisitions and Takeovers Regulation 2015 (Cth), Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth), Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 (Cth), Financial Sector (Shareholdings) Act 1998 (Cth), the Foreign Investment Policy, and associated Ministerial Statements, on whether or not to approve a foreign investment proposal, shall not be subject to the dispute settlement provisions under Section B (Settlement of Disputes between the Parties) or Section C (Settlement of Disputes between an Investor and the Host Party).
Annex IV. Service of Documents on a Party Under Section C (Settlement of Disputes Between an Investor and the Host Party)
Australia
Notices and other documents in investment disputes under Section C (Settlement of Disputes between an Investor and the Host Party) shall be served on Australia by delivery to:
Department of Foreign Affairs and Trade
R.G. Casey Building
John McEwen Crescent Barton ACT 0221
Australia
The HKSAR
Notices and other documents in investment disputes under Section C (Settlement of Disputes between an Investor and the Host Party) shall be served on the HKSAR by delivery to:
Trade and Industry Department
Trade and Industry Tower
3 Concorde Road
Kowloon City
Hong Kong