1. With the objective of further liberalizing trade in services between them, the Parties agree to jointly review their Schedules of Specific Commitments taking into account any services liberalization developments as a result of on-going work under the auspices of the WTO.
2. The first such review shall take place no later than two years after the date of entry into force of this Agreement.
Article 8.17. Committee on Trade In Services
1. The Parties hereby establish a Committee on Trade in Services (referred to as the “Committee” in this Chapter), comprising representatives of each Party.
2. The Committee’s functions shall include:
(a) reviewing the implementation and operation of this Chapter;
(b) identifying and recommending measures to promote trade in services; and
(c) at a Party’s request, consulting on any matter arising under this Chapter.
3. The Committee shall meet within one year after the date of entry into force of this Agreement and every two years thereafter unless the Parties otherwise agree. The Committee shall inform the Joint Commission of the results of each meeting.
Annex 8-A. Financial Services (1)
Definitions
1. For purposes of this Annex:
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
(a) Direct insurance (including co-insurance):
(i) life
(ii) non-life
(b) Reinsurance and retrocession;
(c) Insurance intermediation, such as brokerage and agency;
(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 transaction;
(g) Financial leasing;
(h) All payment and money transmission services, including credit, charge and debit cards, travelers checks 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 checks, bills, certificates of deposits);
(ii) foreign exchange;
(iii) derivative products including, but not limited to, futures and options;
(iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(v) transferable securities;
(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 such 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;
(p) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
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.
Public entity means:
(a) a government, a central bank or a monetary authority, of a 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
(b) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
Scope and Definition
2. This Annex shall apply 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 Article 8.1
3. For purposes of the definition of services as set out in Article 8.1, services supplied in the exercise of governmental authority means the following:
(a) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; and
(c) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.
4. For purposes of the definition of services as set out in Article 8.1, if a Party allows any of the activities referred to in subparagraphs (b) or (c) of paragraph 2 to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, services shall include such activities.
5. A service supplied in the exercise of governmental authority as defined in Article 8.1 shall not apply to services covered by this Annex.
Domestic Regulation
6. Notwithstanding any other provisions of this Chapter, 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 this Chapter, they shall not be used as a means of avoiding the Party's commitments or obligations under this Chapter.
7. 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.
Recognition
8. 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.
9. A Party that is a party to such an agreement or arrangement referred to in paragraph 8, 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.
Dispute Settlement
10. Panels for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
Annex 8-B. Telecommunications (1)
Definitions
1. For purposes of this Annex:
end-user means a final consumer of or subscriber to a public telecommunications network or service, including a service supplier other than a supplier of public telecommunications networks or services;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to provide a service;
interconnection means linking with suppliers providing public telecommunications networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier, where specific commitments are undertaken;
international mobile roaming service means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications networks or services that enables end-users to use their home mobile handset or other device for voice, data, or messaging services while outside the territory in which the end-user’s home public telecommunications network is located;
license means any authorization that a Party may require of a person, in accordance with its laws and regulations, in order for such a person to offer a telecommunications network or service, including concessions, permits, or registrations;
major supplier means a supplier of public telecommunications networks or services that has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for public telecommunications networks or services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
public telecommunications network means public telecommunications infrastructure used to provide public telecommunications services between and among defined network termination points;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information, and excludes value-added services;
telecommunications means the transmission and reception of messages, sounds, visual images, or signals by any electromagnetic means;
telecommunications regulatory body means any body or bodies responsible under the laws and regulations of a Party for the regulation of telecommunications;
user means an end-user of or a supplier of public telecommunications networks or services; and
value-added services means services that add value to telecommunications services through enhanced functionality, and specifically means those services as respectively defined in the relevant laws or regulations of each Party.
Scope
2. This Annex applies to measures affecting trade in telecommunications services, including:
(a) measures relating to access to and use of public telecommunications services;
(b) measures relating to obligations of suppliers of public telecommunications services;
(c) other measures relating to public telecommunications networks or services; and
(d) measures relating to the supply of value-added services.
3. Except to ensure that service suppliers operating broadcast stations and cable systems have continued access to and use of public telecommunications networks or services, this Annex shall not apply to any measure relating to broadcast or cable distribution of radio or television programming.
4. Nothing in this Annex shall be construed to:
(a) require a Party, or require a Party to compel any service supplier, to establish, construct, acquire, lease, operate, or provide telecommunications networks or services not offered to the public generally; or
(b) require a Party to compel any service supplier exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network.
Access and Use
5. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 6 through 10. 6. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) provide services to individual or multiple end-users over owned or leased circuits;
(c) connect owned or leased circuits with public telecommunications networks or services in the territory, or across the borders, of that Party, or with circuits leased or owned by another service supplier;
(d) perform switching, signaling, processing, and conversion functions; and
(e) use operating protocols of their choice in the supply of any service.
7. Each Party shall ensure that service suppliers of the other Party may use public telecommunications services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
8. Notwithstanding paragraph 7, a Party may take such measures as are necessary to ensure the security and confidentiality of messages, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
9. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
10. Provided that conditions for access to and use of public telecommunications networks and services satisfy the criteria set out in paragraph 9, such conditions may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(b) requirements, where necessary, for the inter-operability of such networks and services; and
(c) type approval of terminal or other equipment that interfaces with the network and technical requirements relating to the attachment of that equipment to such networks.
Competitive Safeguard
11. Each Party shall maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks and services that, alone or together, are a major supplier in its territory from engaging in or continuing anticompetitive practices.
12. The anticompetitive practices referred to in paragraph 11 include in particular:
(a) engaging in anticompetitive cross-subsidization;
(b) using information obtained from competitors with anticompetitive results; and
(c) not making available, on a timely basis, to suppliers of public telecommunications networks or services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.
Number Portability
13. Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability for mobile services, to the extent technically feasible, on a timely basis, and on terms and conditions that are reasonable and non-discriminatory.
Interconnection
General Terms and Conditions
14. Each Party shall ensure that a major supplier in its territory is required to provide interconnection for the facilities and equipment of suppliers of public telecommunications services of the other Party at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including technical standards and specifications), and rates;
(b) of a quality no less favorable than that provided for its own like services, for like services of non-affiliated service suppliers, or for like services of its subsidiaries or other affiliates;
(c) in a timely fashion, on terms, conditions (including technical standards and specifications) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the suppliers need not pay for network components or facilities that it does not require for the services to be provided; and
(d) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities. Public Availability of the Procedures for Interconnection Negotiations
15. Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its territory.
Transparency of Interconnection Arrangements
16. Each Party shall ensure that major suppliers make their interconnection agreements available to service suppliers providing public telecommunications network or services of the other Party.
Unbundling of Network Elements
17. Each Party shall endeavor to ensure that a major supplier in its territory offers access to network elements on an unbundled basis on terms and conditions that are reasonable, non-discriminatory, and transparent for the supply of public telecommunications services. A Party may determine the network elements required to be made available in its territory, and the suppliers that may obtain those elements, in accordance with its laws and regulations.
Access to Poles, Ducts, and Conduits
18. Each Party shall endeavor to ensure that a major supplier in its territory provides access to poles, ducts, conduits, or any other structures as determined by the Party, owned or controlled by the major supplier, to suppliers of public telecommunications services of the other Party in the Party’s territory, on a timely basis, and on terms and conditions and at rates that are reasonable, nondiscriminatory, and transparent, subject to technical feasibility.
19. A Party may determine, in accordance with its laws and regulations, the poles, ducts, conduits, or any other structures to which it requires major suppliers in its territory to provide access in accordance with paragraph 18. When the Party makes this determination, it shall take into account factors such as the competitive effect of lack of such access, whether such structures can be substituted in an economically or technically feasible manner in order to provide a competitive service, or other specified public interest factors.
Conditions for the Supply of Value-Added Services
20. Neither Party may require an enterprise in its territory that it classifies as a supplier of value-added services and that supplies those services over facilities that the enterprise does not own to:
(a) supply those services to the public generally;
(b) cost-justify its rates for those services;
(c) file a tariff for those services;
(d) connect its networks with any particular customer for the supply of those services; or
(e) conform with any particular standard or technical regulation of the telecommunications regulatory body for connecting to any other network, other than a public telecommunications network.
21. Notwithstanding paragraph 20, a Party may take the actions described in paragraph 20 to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anticompetitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers.
International Mobile Roaming
22. The Parties shall endeavor to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade among the Parties and enhance consumer welfare.
23. A Party may take steps to enhance transparency and competition with respect to international mobile roaming services, such as:
(a) ensuring that information regarding retail rates is easily accessible to consumers; and
(b) minimizing impediments to roaming, whereby consumers when visiting the territory of a Party from the territory of the other Party can access telecommunications services using the device of their choice.
Universal Service
24. Each Party has the right to define the kind of universal service obligations it wishes to adopt or maintain.
25. Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Licensing Process
26. When a Party requires a supplier of public telecommunications networks or services to have a license, the Party shall make publicly available: