(d) measures affecting air traffic rights, however granted or measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services; or
(iv) ground handling services.
3. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment. (3)
Article 8.3. Market Access
1. With respect to market access through the modes of supply identified in Article 8.1, each Party shall accord services and service suppliers of the other Party treatment no less favorable than that provided for under the terms, limitations, and conditions agreed and specified in its Schedule of Specific Commitments. (4)
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, 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; (5)
(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 8.4. National Treatment
1. In the sectors inscribed in its Schedule of Specific Commitments, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers. (6)
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 favorable if it modifies the conditions of competition in favor of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 8.5. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 8.3 and 8.4, including those regarding qualifications, standards, or licensing matters. Such commitments shall be inscribed in a Party's Schedule of Specific Commitments.
Article 8.6. Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 8.3, 8.4, and 8.5. With respect to sectors where such commitments are undertaken, each 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;
(d) where appropriate, the time-frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 8.3 and 8.4 shall be inscribed in the column relating to Article 8.3. 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 shall be annexed to this Chapter and shall form an integral part of this Agreement.
Article 8.7. Most-Favored Nation Treatment
If, after the date of entry into force of this Agreement, a Party enters into an agreement notified under Article V or Article V bis of GATS, it shall upon request from the other Party afford adequate opportunity to that Party to negotiate the benefits granted therein.
Article 8.8. Modification of Schedules
1. (a) A Party (referred to in this Article as the “modifying Party”) may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article.
(b) A modifying Party shall notify its intent to modify or withdraw a commitment pursuant to this Article to the Committee on Trade in Services no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of a Party the benefits of which under this Chapter may be affected (referred to in this Article as an “affected Party”) by a proposed modification or withdrawal notified under paragraph 1(b), the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Parties shall endeavor to maintain a general level of mutually advantageous commitments not less favorable to trade than that provided for in Schedules of Specific Commitments prior to such negotiations.
3. If agreement is not reached between the modifying Party and the affected Party before the end of the period provided for negotiations, the affected Party may refer the matter to the Committee on Trade in Services. Where the Committee on Trade in Services fails to reach an agreement on the matter, the Committee on Trade in Services may refer the matter to the Joint Committee to adopt a decision or make a recommendation.
4. The Joint Committee shall establish procedures for rectification or modification of Schedules. A Party which has modified or withdrawn scheduled commitments under this Article shall modify its Schedule according to such procedures.
Article 8.9. Domestic Regulation
Scope
1. This Article shall apply to measures by a Party relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards affecting trade in services.
2. 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.
3. This Article shall not apply to any terms, limitations, conditions, or qualifications set out in a Party’s Schedule pursuant to Articles 8.3 or 8.4.
4. For the purpose of this Article, authorization means the permission to supply a service, resulting from a procedure to which an applicant must adhere in order to demonstrate compliance with licensing requirements, qualification requirements, or technical standards.
Submission of Applications
5. Each Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorization. If a service is within the jurisdiction of multiple competent authorities, multiple applications for authorization may be required.
Application Timeframes
6. If a Party requires authorization for the supply of a service, it shall ensure that its competent authorities to the extent practicable permit submission of an application at any time throughout the year. (7) If a specific time period for applying exists, the Party shall ensure that the competent authorities allow a reasonable period for the submission of an application.
Electronic Applications and Acceptance of Copies
7. If a Party requires authorization for the supply of a service, it shall ensure that its competent authorities:
(a) taking into account their competing priorities and resource constraints, endeavor to accept applications in electronic format; and
(b) accept 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 authorization process.
Processing of Applications
8. If a Party requires authorization for the supply of a service, it shall ensure that its competent authorities:
(a) to the extent practicable, provide an indicative timeframe for processing of an application;
(b) at the request of the applicant, provide without undue delay information concerning the status of the application;
(c) to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party’s domestic laws and regulations;
(d) if they consider an application complete for processing under the Party’s domestic laws and regulations, (8) within a reasonable period of time after the submission of the application ensure that:
(i) the processing of the application is completed; and
(ii) the applicant is informed of the decision concerning the application, (9)
to the extent possible in writing; (10)
(e) if they consider an application incomplete for processing under the Party’s domestic laws and regulations, within a reasonable period of time, to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant, identify the additional information required to complete the application, or otherwise provide guidance on why the application is considered incomplete; and
(iii) provide the applicant with the opportunity (11) to provide the additional information that is required to complete the application;
however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they so inform the applicant within a reasonable period of time; and
(f) if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant of the reasons for rejection and, if applicable, the procedures for resubmission of an application; an applicant should not be prevented from submitting another application (12) solely on the basis of a previously rejected application.
9. The competent authorities of a Party shall ensure that authorization, once granted, enters into effect without undue delay, subject to applicable terms and conditions. (13)
Fees
10. Each Party shall ensure that the authorization fees (14) charged by its competent authorities are reasonable, transparent, based on authority set out in a measure, and do not in themselves restrict the supply of the relevant service.
Assessment of Qualifications
11. If a Party requires an examination for authorization for the supply of a service, that Party shall ensure that its competent authorities schedule such an examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination. Having regard to the cost, administrative burden, and the integrity of the procedures involved, the Parties are encouraged to accept requests in electronic format to take such examinations, and to consider, to the extent practicable, the use of electronic means in other aspects of examination processes.
Recognition
12. Where professional bodies of the Parties are mutually interested in establishing dialogues on issues relating to recognition of professional qualifications, licensing or registration, the Parties should consider supporting the dialogue of those bodies where requested and appropriate.
Independence
13. If a Party adopts or maintains measures relating to the authorization for the supply of a service, the Party shall ensure that its competent authorities reach and administer their decisions in a manner independent from any supplier of the service for which authorization is required. (15)
Publication and Information available (16)
14. Further to Article 1.7 (Transparency), if a Party requires authorization for the supply of a service, the Party shall promptly publish, (17) or otherwise make publicly available in writing, the information necessary for service suppliers or persons seeking to supply a service to comply with the requirements and procedures for obtaining, maintaining, amending, and renewing such authorization. Such information shall include, inter alia, where it exists:
(a) the requirements and procedures;
(b) contact information of relevant competent authorities;
(c) fees;
(d) technical standards;
(e) procedures for appeal or review of decisions concerning applications;
(f) procedures for monitoring or enforcing compliance with the terms and conditions of licenses or qualifications;
(g) opportunities for public involvement, such as through hearings or comments; and
(h) indicative timeframes for processing of an application.
Enquiry Points
15. Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from service suppliers or persons seeking to supply a service regarding the measures referred to in paragraph 1. (18) A Party may choose to address such enquiries through either the enquiry and contact points or any other mechanisms as appropriate.
Technical Standards
16. Each Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage any body, including relevant international organizations, (19) designated to develop technical standards to use open and transparent processes.
Development of Measures
17. If a Party adopts or maintains measures relating to the authorization for the supply of a service, the Party shall ensure that:
(a) such measures are based on objective and transparent criteria; (20)
(b) the procedures are impartial, and that the procedures are adequate for applicants to demonstrate whether they meet the requirements, if such requirements exist;
(c) the procedures do not in themselves unjustifiably prevent the fulfilment of requirements; and
(d) such measures do not discriminate between men and women. (21)
Article 8.10. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of service suppliers, and subject to the requirements of paragraph 3, a Party may recognize, or encourage its relevant competent bodies to recognize, the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned, or may be accorded autonomously.
2. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, 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, licenses or certifications obtained or requirements met in that other Party's territory should also be recognized.
3. 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 authorization, licensing or certification of service suppliers, or a disguised restriction on trade in services.
4. Wherever appropriate, recognition should be based on multilaterally agreed criteria. In appropriate cases, the Parties shall work in cooperation with relevant intergovernmental and non-governmental organizations towards the establishment and adoption of common international standards and criteria for recognition and common international standards for the practice of relevant services trades and professions.
Article 8.11. Payments and Transfers
1. Except under the circumstances envisaged in Article 8.12, 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 under the Articles of Agreement of the International Monetary Fund (hereinafter referred to as the “Articles of Agreement”), 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 8.12 or at the request of the International Monetary Fund.
Article 8.12. Restrictions to Safeguard the Balance-of-Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments.
2. The restrictions referred to in paragraph 1:
(a) shall not discriminate between the other Party and non-Party;
(b) shall be consistent with the Articles of Agreement;
(c) shall avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(d) shall not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
3. In determining the incidence of such restrictions, a Party may give priority to the supply of services which are more essential to its economic or development programs. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.
4. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the Committee on Trade in Services.
Article 8.13. 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 and specific commitments.
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, 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 authorizing such supplier to provide specific information concerning the relevant operations.
4. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect, (a) authorizes or establishes a small number of service suppliers and (b) substantially prevents competition among those suppliers in its territory.
Article 8.14. Business Practices
1. The Parties recognize that certain business practices of service suppliers, other than those falling under Article 8.13, may restrain competition and thereby restrict trade in services.
2. Each Party shall, on the request of the other Party (referred to in this Article as the “Requesting Party”), enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed (referred to in this Article as 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 shall also provide other information available to the Requesting Party, subject to its domestic law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the Requesting Party.
Article 8.15. Denial of Benefits
1. 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 owned or controlled by persons of a non-Party, 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 Chapter were accorded to the juridical person. A Party may deny the benefits of this Chapter in the case of the supply of a maritime transport service, 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 which operates and/or uses the vessel in whole or in part but which is of a non-Party;
2. 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 owned or controlled by persons of a non-Party or of the denying Party that has no substantial business activities in the territory of the other Party.