(i) for Georgia, is a natural person who under Georgian law is a national of Georgia; and
(ii) for China, is a natural person who under the Chinese law is a national of China;
(j) owned means holding more than 50 percent of the equity interest in a juridical person;
(k) person of a Party means either a natural person or a juridical person of a Party;
(l) qualification procedures means administrative procedures relating to the administration of qualification requirements;
(m) qualification requirements means substantive requirements which a service supplier is required to fulfill in order to obtain certification or a licence;
(n) sector of a service means, with reference to a specific commitment, one or more or all subsectors of that service, as specified in a Party's Schedule in Annex 8-E and Annex 8-F, or otherwise the whole of that service sector, including all of its subsectors;
(o) 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, but do not include the pricing of air transport services nor the applicable conditions;
(p) services includes any service in any sector except services supplied in the exercise of governmental authority;
(q) service consumer means any person that receives or uses a service;
(r) 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;
(s) service supplier of a Party means any person of a Party that supplies a service; (1)
(t) supply of a service includes the production, distribution, marketing, sale and delivery of a service;
(u) trade in services means the supply of a service:
(i) from the territory of a Party into the territory of the other Party (“cross-border supply mode”);
(ii) in the territory of a Party to the service consumer of the other Party (“consumption abroad mode”);
(iii) by a service supplier of a Party, through commercial presence in the territory of the other Party (“commercial presence mode”); and
(iv) by a service supplier of a Party, through presence of natural persons of that Party in the territory of the other Party (“presence of natural persons mode” or “movement of natural persons mode”);
(v) traffic rights means the right for scheduled and non-scheduled services to operate and/or to 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.
Part II. GENERAL OBLIGATIONS AND DICIPLINES
Article 8.3. SCHEDULING OF SPECIFIC COMMITMENTS
1. Where a Party schedules commitments in accordance with this Part, it shall set out in a schedule, called its Schedule of Specific Commitments, the specific commitments it undertakes in accordance with Articles 8.4, 8.5 and 8.7. With respect to sectors where such commitments are undertaken, its Schedule 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 Articles 8.4 and 8.5 shall be inscribed in the column relating to Article 8.5. In this case the inscription will be considered to provide a condition or qualification to Article 8.4 as well.
3. Schedules of Specific Commitments are annexed to this Agreement as Annex 8-E and Annex 8-F and shall form an integral part thereof.
Article 8.4. NATIONAL TREATMENT
1. Where a Party schedules commitments in accordance with this Part, in the sectors inscribed in its Schedule of Specific Commitments in Annex 8-E and Annex 8-F and subject to any conditions and qualifications set out therein, it shall 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. (2)
2. A Party may meet the requirement in 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 by a Party shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 8.5. MARKET ACCESS
1. With respect to market access through the modes of supply identified in Article 8.2(u), a 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 of Specific Commitments in Annex 8-E and Annex 8-F. (3)
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 of Specific Commitments in Annex 8-E and Annex 8-F, 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; (4)
(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.
Article 8.6. MOST-FAVOURED-NATION TREATMENT
1. Without prejudice to measures taken in accordance with Article VII of the GATS, and except as provided for in its List of MFN Exemptions contained in Annex 8-E and Annex 8-F, each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of the other Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-party. (5)
2. Treatment granted under other existing or future agreements concluded by a Party and notified under Article V or Article V bis of the GATS shall not be subject to paragraph 1.
3. If a Party concludes or amends an agreement of the type referred to in paragraph 2, it shall, upon request from the other Party, endeavour to accord to the other Party treatment no less favourable than that provided under that agreement. The former Party shall, upon request from the other Party, afford adequate opportunity to the other Party to negotiate the incorporation into this Agreement of a treatment no less favourable than that provided under the former agreement.
4. The provisions of this Chapter shall not be so 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 8.7. ADDITIONAL COMMITMENTS
A Party may also negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 8.4 and 8.5, including but not limited to those regarding qualification, standards or licensing matters. Such commitments shall be inscribed in that Party's Schedule of Specific Commitments in Annex 8-E and Annex 8-F.
Part III. OTHER PROVISIONS
Article 8.8. 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. (a) 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.
(b) The provisions of subparagraph (a) shall not 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.
3. Where authorisation is required for the supply of a service on which a specific commitment under this Agreement has been made, the competent authorities of each Party shall:
(a) In the case of an incomplete application, 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;
(b) On request of the applicant, provide without undue delay information concerning the status of the application; and
(c) If an application is terminated or denied, to the maximum extent possible, 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. To ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measures pursuant to paragraph 4 of Article VI of GATS, with a view to their incorporation into this Agreement. The Parties note that such disciplines aim to ensure that such requirements are, inter alia:
(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.
5. (a) In sectors in which a Party has undertaken specific commitments, pending the incorporation of the disciplines referred to in paragraph 4, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair its obligation under this Agreement in a manner which:
(i) Does not comply with the criteria outlined in subparagraphs 4(a), (b) or (c); and
(ii) Could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under subparagraph 5(a), account shall be taken of international standards of relevant international organisations applied by that Party. (6)
6. 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.
7. A Party shall, in accordance with its laws and regulations, permit services suppliers of the other Party to use enterprise names under which they trade in the territory of the other Party.
8. In accordance with Georgian legislation, Georgia permits Chinese nationals to participate in Georgia's qualification examination for auditors and permits Chinese Nationals who have passed such examination to be registered/licensed and practice in Georgia on the same condition as provided for Georgian service suppliers.
Article 8.9. RECOGNITION
1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to the requirements of 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. Where 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 8.6 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licences or certifications granted in the territory of the other Party.
3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 2, whether existing or in the future, shall afford adequate opportunity for the other Party, on request, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones 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.
Article 8.10. QUALIFICATIONS RECOGNITION COOPERATION
1. 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 strengthen cooperation and to explore possibilities for mutual recognition of respective professional and vocational qualifications.
2. The Parties may discuss, as appropriate, relevant bilateral, plurilateral and multilateral agreements relating to professional and vocational services.
Article 8.11. PAYMENTS AND TRANSFERS
1. Except in the circumstances envisaged in Article 16.6 (Measures to Safeguard
The Balance-of-Payments) of Chapter 16 (General Provisions and Exceptions), 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 the Parties as members of the International Monetary Fund in accordance with the Articles of Agreement of the International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 16.6 (Measures to Safeguard the Balance of Payments) of Chapter 16 (General Provisions and Exceptions), or at the request of the International Monetary Fund.
Article 8.12. DENIAL OF BENEFITS
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is a juridical person:
(a) Owned or controlled by persons of a non-party or of the denying Party; and
(b) Has no substantive business operations in the territory of the other Party.
Article 8.13. TRANSPARENCY
1. Each Party shall ensure that:
(a) Regulatory decisions, including the basis for such decisions, are promptly published or otherwise made available to all interested persons; and
(b) Its measures relating to public networks or services are made publicly available, including the requirements, if any, for permits.
2. Each Party shall ensure that, where a licence is required, all measures relating to the licensing of suppliers of public networks or services are made publicly available, including:
(a) The circumstances in which a licence is required;
(b) All applicable licencing procedures;
(c) The period of time normally required to reach a decision concerning a licence application;
(d) The cost of, or fees for applying for, or obtaining, a licence; and
(e) The period of validity of a licence.
3. Each Party shall, in accordance with its laws and regulations, ensure that, on request, an applicant receives reasons for the denial of, revocation of, refusal to renew, or the imposition or modification of conditions on, a licence. Each Party shall endeavour to provide, to the extent possible, such information in writing.
Article 8.14. CONTACT POINTS
Each Party shall designate one or more contact points to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
Article 8.15. MODIFICATION OF SCHEDULES
1. A Party (referred to in this Article as the "modifying Party") may modify or withdraw any commitment in its Schedule in Annex 8-E and Annex 8-F at any time after three years have elapsed from the date on which that commitment entered into force, provided that:
(a) It notifies the other Party (referred to in this Article as the "affected Party") of its intention to modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal; and
(b) Upon notification of a Party's intent to make such modification, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment.
2. In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is not less favourable to trade than provided for in the Schedules prior to such negotiations.
3. If agreement under paragraph 1(b) is not reached between the modifying Party and the affected Party within three months, the affected Party may refer the matter to an arbitral tribunal in accordance with the procedures set out in Chapter 15 (Dispute Settlement) or, where agreed between the Parties, to an alternative arbitration procedure.
4. The modifying Party may not modify or withdraw its commitment until it has made the compensatory adjustments in conformity with the findings of the arbitral tribunal in accordance with paragraph 3.
5. If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the arbitral tribunal, the affected Party may modify or withdraw substantially equivalent benefits in conformity with the findings of the arbitral tribunal.
Article 8.16. 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 its Schedule in Annex 8-E and Annex 8-F.
2. Where a Party's monopoly supplier 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 specific commitments in its Schedule in Annex 8-E and Annex 8-F, the 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. If a Party has reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraph 1 or 2, that Party may request the other Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. If, after the date of entry into force of this Agreement, a Party grants monopoly rights regarding the supply of a service covered by its specific commitments in its Schedule in Annex 8-E and Annex 8-F, that Party shall notify the other Party no later than three months before the intended implementation of the grant of monopoly rights, and paragraphs 1(b) and 2 of Article 8.16 shall apply.
5. 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 8.17. REVIEW
1. The Parties shall consult within two years of the date of entry into force of this Agreement and every two years thereafter, or as otherwise agreed, to review the implementation of this Chapter and consider other trade in services issues of mutual interest, with a view to the progressive liberalisation of the trade in services between them on a mutually advantageous basis.
2. Where a Party unilaterally liberalises a measure affecting market access of a service supplier or suppliers of the other Party, the other Party may request consultations to discuss the measure. Following such consultations, if the Parties agree to incorporate the liberalised measure into the Agreement as a new commitment, the relevant Schedule in Annex 8-E and Annex 8-F shall be amended.
Chapter 9. ENVIRONMENT AND TRADE
Article 9.1. LEVELS OF PROTECTION
The Parties reaffirm each Party's sovereign right to establish its own levels of environmental protection and its own environmental development priorities, and to adopt or modify its environmental laws and policies.
Article 9.2. ENFORCEMENT OF ENVIRONMENTAL MEASURES INCLUDING LAWS AND REGULATIONS
1. The Parties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in its environmental laws, regulations, policies and practices. Accordingly, neither Party shall waive or otherwise derogate from such laws, regulations, policies and practices in a manner that weakens or reduces the protections afforded in those laws, regulations, policies and practices.
2. Nothing in this Chapter shall be construed to empower a Party's authorities to undertake environmental law enforcement activities in the territory of the other Party.
Article 9.3. MULTILATERAL ENVIRONMENTAL AGREEMENTS
The Parties recognize that multilateral environmental agreements (hereinafter referred to as "MEAs") play an important role globally and domestically in protecting the environment, and reaffirm their commitments to the effective implementation in their laws and practices of the MEAs to which both Parties are party.
Article 9.4. REVIEW OF ENVIRONMENTAL IMPACT
The Parties endeavor to review the impact of the implementation of this Agreement on environment as appropriate, at any time after the entry into force of this Agreement, through their respective participative processes and institutions.
Article 9.5. COOPERATION
Recognizing the importance of cooperation in the field of environment in achieving the goals of sustainable development, the Parties commit to conducting cooperative activities in areas of common interest as appropriate.
Article 9.6. CONSULTATIONS
The Parties shall only conduct consultation on any matter arising under this Chapter in the framework of the FTA Joint Commission. The parties shall consult aiming to reach a mutually satisfactory solution.
Chapter 10. COMPETITION
Article 10.1. OBJECTIVES
Each Party understands that proscribing anticompetitive business practices, implementing competition policies, and cooperating on competition issues contribute to enhancing trade liberalization and promoting economic efficiency and consumer welfare.
Article 10.2. DEFINITIONS
For purposes of this Chapter:
1. anti-competitive business practices means business activities or transactions that are incompatible with the proper functioning of this Agreement in so far as they may affect trade between the Parties, such as:
(a) Agreements between enterprises, decisions by associations of enterprises, and concerted practices, which have as their object or effect the prevention, restriction, or distortion of competition in the territory of either Party as a whole or in a substantial part thereof;
(b) Any abuse by one or more enterprises of a dominant position in the territory of either Party as a whole or in a substantial part thereof; or
(c) Concentrations between enterprises, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position in the territory of either Party as a whole or in a substantial part thereof;
2. competition laws means:
(a) For China, Anti-monopoly Law and its implementing regulations and amendments; and
(b) For Georgia, Georgian law on Competition, its implementing regulations and amendments and legislation of regulated sectors of the economy.
Article 10.3. COMPETITION LAWS AND AUTHORITIES
1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anticompetitive business practices.