(i) the MFN rate of duty applied at the time the action is taken; or
(ii) the MFN rate of duty applied on the day immediately preceding entry into force of this Agreement.
5. Bilateral safeguard measures shall be taken for a period not exceeding one year. In very exceptional circumstances, after review by the Joint Committee, measures may be taken up to a total maximum period of three years. No bilateral safeguard measures shall be applied to the import of a product which has previously been subject to such a measure.
6. The Joint Committee shall, within 30 days from the date of notification, examine the information provided under paragraph 3 in order to facilitate a mutually acceptable resolution of the matter. In the absence of such resolution, the importing Party may adopt a measure pursuant to paragraph 4 to remedy the problem, and, in the absence of mutually agreed compensation, the Party against whose product the measure is taken may take compensatory action. The bilateral safeguard measure and the compensatory action shall be immediately notified to the other Parties. In the selection of the bilateral safeguard measure and the compensatory action, priority must be given to the measure which least disturbs the functioning of this Agreement. The compensatory action shall normally consist of suspension of concessions having substantially equivalent trade effects or concessions substantially equivalent to the value of the additional duties expected to result from the bilateral safeguard measure. The Party taking compensatory action shall apply the action only for the minimum period necessary to achieve the substantially equivalent trade effects and in any event, only while the bilateral safeguard measure under paragraph 4 is being applied.
7. Upon the termination of the bilateral safeguard measure, the rate of customs duty shall be the rate which would have been in effect but for the measure.
8. In critical circumstances, where delay in the introduction of a bilateral safeguard measure in accordance with this Article would cause damage which would be difficult to repair, a Party may take a provisional bilateral safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports constitute a substantial cause of serious injury, or threat thereof, to the domestic industry. The Party intending to take such a measure shall immediately notify the other Parties thereof. Within 30 days of the date of the notification, the procedures set out in paragraphs 2 to 6, including for compensatory action, shall be initiated. Any compensation shall be based on the total period of application of the provisional bilateral safeguard measure and of the bilateral safeguard measure.
9. Any provisional bilateral safeguard measure shall be terminated within 200 days at the latest. The period of application of any such provisional bilateral safeguard measure shall be counted as part of the duration of the bilateral safeguard measure set out in paragraph 5 and any extension thereof. Any tariff increases shall be promptly refunded if the investigation described in paragraph 2 does not result in a finding that the conditions of paragraph 1 are met.
10. Five years from entry into force of this Agreement, the Parties shall review in the Joint Committee whether there is need to maintain the possibility to take bilateral safeguard measures between them. If the Parties decide, after the first review, to maintain such possibility, they shall thereafter conduct biennial reviews of this matter in the Joint Committee.
Article 2.20. State Trading Enterprises
Article XVII of the GATT 1994 and the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994 shall apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.21. General Exceptions
For the purposes of this Chapter, Article XX of the GATT 1994 and its interpretative notes apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.22. Security Exceptions
For the purposes of this Chapter, Article XXI of the GATT 1994 and its interpretative notes apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.23. Balance-of-Payments
1. A Party, in serious balance-of-payments difficulties, or under imminent threat thereof, may, in accordance with the conditions set out in GATT 1994 and the WTO Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994, adopt trade restrictive measures, which shall be of limited duration and non-discriminatory, and may not go beyond what is necessary to remedy the balance of payments situation.
2. The Party introducing a measure under this Article shall promptly notify the other Parties.
Article 2.24. Preference Utilisation
1. For the purposes of monitoring the functioning of this Agreement and calculating preference utilisation rates, the Parties shall annually exchange import statistics and tariff rates under this Agreement.
2. Import statistics comprise all imports from the Party concerned, including trade values and volumes listed at the most detailed level of the national tariff structure. Each Party shall exchange separate statistics for imports from the other Parties:
(a) benefiting from preferential treatment under this Agreement;
(b) benefiting from any other reduced tariff rates; and
(c) under MFN tariff rates.
The Parties shall exchange import statistics on the trade with the individual Parties. Import statistics shall pertain to the three most recent years available.
3. The tariff rates exchanged shall include preferential tariff rates under this Agreement as well as applied MFN tariff rates. They shall pertain to the same year as the import statistics.
4. Upon request, the Parties shall exchange additional information and explanations related to this data exchange in English.
5. The exchange of import statistics and tariff rates shall start in the year following the first full calendar year after entry into force of this Agreement.
6. Notwithstanding paragraphs 1 and 2, no Party shall be obliged to exchange data that is confidential in accordance with its domestic laws and regulations.
Article 2.25. Sub-Committee on Trade In Goods
A Sub-Committee on Trade in Goods (Sub-Committee) is hereby established. The mandate of the Sub-Committee is set out in Annex VI (Mandate of the Sub-Committee on Trade in Goods).
Chapter 3. TRADE IN SERVICES
Article 3.1. Scope and Coverage
1. This Chapter applies to measures by Parties affecting trade in services. It applies to all services sectors.
2. In respect of air transport services, this Chapter shall not apply to measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, except as provided for in paragraph 3 of the GATS Annex on Air Transport Services. The definitions of paragraph 6 of the GATS Annex on Air Transport Services are hereby incorporated and made part of this Chapter.
3. Articles 3.4 (Most-Favoured-Nation Treatment), 3.5 (Market Access) and 3.6 (National Treatment) shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.
Article 3.2. Incorporation of Provisions from the GATS
Wherever a provision of this Chapter provides that a provision of the GATS is incorporated into and made part of this Chapter, the meaning of the terms used in the GATS provision shall be understood as follows:
(a) "Member" means Party;
(b) "Schedule" means a Schedule referred to in Article 3.17 (Schedules of Specific Commitments) and contained in Annex VII (Schedules of Specific Commitments); and
(c) "specific commitment" means a specific commitment in a Schedule referred to in Article 3.17 (Schedules of Specific Commitments).
Article 3.3. Definitions
For the purpose of this Chapter:
(a) the following definitions of Article I of the GATS are incorporated into and made part of this Agreement:
(i) “trade in services”;
(ii) “services”; and
(iii) “a service supplied in the exercise of governmental authority”;
(b) “measures by Parties” means measures taken by the Parties as defined in Article I subparagraphs 3 (a) (i) and (ii) of the GATS;
(c) “service supplier” means any person that supplies, or seeks to supply, a service; (2)
(d) “natural person of another Party” means a natural person who, under the legislation of that other Party, is:
(i) a national of that other Party who resides in the territory of any WTO Member; or
(ii) a permanent resident of that other Party who resides in the territory of any Party, if that other Party accords substantially the same treatment to its permanent residents as to its nationals in respect of measures affecting trade in services. For the purpose of the supply of a service through presence of natural persons (Mode 4), this definition covers a permanent resident of that other Party who resides in the territory of any Party or in the territory of any WTO Member;
(e) “juridical person of another Party” means a juridical person which is either:
(i) constituted or otherwise organised under the law of that other Party, and is engaged in substantive business operations in the territory of:
(aa) any Party; or
(bb) any Member of the WTO and is owned or controlled by natural persons of that other Party or by juridical persons that meet all the conditions of subparagraph (i) (aa); or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(aa) natural persons of that other Party; or
(bb) juridical persons of that other Party identified under subparagraph (e) (i);
(f) the following definitions of Article XXVIII of the GATS are hereby incorporated into and made part of this Chapter:
(i) “measure”;
(ii) “supply of a service”;
(iii) “measures by Members affecting trade in services”;
(iv) “commercial presence”;
(v) “sector” of a service;
(vi) “service of another Member”;
(vii) “monopoly supplier of a service”;
(viii) “service consumer”;
(ix) “person”;
(x) “juridical person”;
(xi) “owned”, “controlled” and “affiliated”; and
(xii) “direct taxes”.
Article 3.4. 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 VIII (Lists of MFN Exemptions), a Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of another Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-Party.
2. Treatment granted under other existing or future agreements concluded by one of the Parties 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 notify the other Parties without delay and endeavour to accord to the other Parties treatment no less favourable than that provided under that agreement. The former Party shall, upon request by any other Party, negotiate the incorporation into this Agreement of a treatment no less favourable than that provided under the former agreement.
4. The rights and obligations of the Parties in respect of advantages accorded to adjacent countries shall be governed by paragraph 3 of Article Il of the GATS, which is hereby incorporated into and made part of this Chapter.
Article 3.5. Market Access
Commitments on market access shall be governed by Article XVI of the GATS, which is hereby incorporated into and made part of this Chapter.
Article 3.6. National Treatment
Commitments on national treatment shall be governed by Article XVI of the GATS, which is hereby incorporated into and made part of this Chapter.
Article 3.7. Additional Commitments
Additional commitments shall be governed by Article XVIII of the GATS, which is hereby incorporated into and made part of this Chapter.
Article 3.8. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, 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.
3. Where authorisation is required by a Party for the supply of a service, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application is considered complete under that Party's domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of that Party shall provide, without undue delay, information concerning the status of the application.
4. Each Party shall provide for adequate procedures to verify the competence of professionals of another Party.
Article 3.9. Recognition
1. For the purpose of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to any requests by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of anon-Party, that Party shall afford another Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted in the territory of that other Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VI of the GATS.
Article 3.10. Movement of Natural Persons
1. This Article applies to measures affecting natural persons who are service suppliers of a Party, and natural persons ofa Party who are employed by a service supplier of a Party, in respect of the supply of a service.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, residence or employment on a permanent basis.
3. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party 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 3.11. Transparency
The rights and obligations of the Parties in respect of transparency shall be governed by paragraphs 1 and 2 of Article III and by Article III bis of the GATS, which are hereby incorporated into and made part of this Chapter.
Article 3.12. Monopolies and Exclusive Service Suppliers
The rights and obligations of the Parties in respect of monopolies and exclusive service suppliers shall be governed by paragraphs 1, 2 and 5 of Article VIII of the GATS, which are hereby incorporated into and made part of this Chapter.
Article 3.13. Business Practices
The rights and obligations of the Parties in respect of business practices shall be governed by Article [X of the GATS, which is hereby incorporated into and made part of this Chapter.
Article 3.14. Payments and Transfers
1. Except under the circumstances envisaged in Article 3.15 (Restrictions to Safeguard the Balance-of-Payments), a Party shall not apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the International Monetary Fund (IMF), including the use of exchange actions which are in conformity with the Articles of the Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 3.15 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
Article 3.15. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance-of-payments.
2. Any restriction to safeguard the balance-of-payments adopted or maintained by a Party under and in conformity with Article XII of the GATS shall apply under this Chapter.
Article 3.16. Exceptions
The rights and obligations of the Parties in respect of general exceptions and security exceptions shall be governed by Article XIV and paragraph 1 of Article XIV bis of the GATS, which are hereby incorporated into and made part of this Chapter.
Article 3.17. Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 3.5 (Market Access), 3.6 (National Treatment) and 3.7 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 3.7 (Additional Commitments); and
(d) where appropriate, the timeframe for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 3.5 (Market Access) and 3.6 (National Treatment) shall be dealt with as provided for in paragraph 2 of Article XX of the GATS.
3. The Parties' Schedules of Specific Commitments are set out in Annex VII (Schedules of Specific Commitments).
Article 3.18. Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Party's Schedule of Specific Commitments. The consultations shall be held within three months after the requesting Party made its request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in the Schedule of Specific Commitments prior to such consultations is maintained. Modifications of Schedules are subject to the procedures set out in Articles 12.1 (Joint Committee) and 14.3 (Amendments).
Article 3.19. Review
With the objective of further liberalising trade in services between them, in particular eliminating substantially all remaining discrimination within a period of ten years, the Parties shall review at least every other year, or more frequently if so agreed, their Schedules of Specific Commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and on-going work under the auspices of the WTO. The first such review shall take place no later than three years after the entry into force of this Agreement.
Article 3.20. Annexes
The following Annexes form an integral part of this Chapter: - Annex VII (Schedules of Specific Commitments);
- Annex VIII (Lists of MFN Exemptions);
- Annex IX (Financial Services); and
- Annex X (Telecommunications Services).
Chapter 4. ELECTRONIC COMMERCE
Article 4.1. Definitions
1. For the purposes of this Chapter, Article 3.3 (Definitions) applies.
2. For the purposes of this Chapter:
(a) "electronic signature" means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;
(b) "electronic seal" means data in electronic form, which is attached to or logically associated with other data in electronic form to ensure the latter's origin and integrity;
(c) "electronic transmissions" means transmissions of electronic data through the Internet;
(d) "electronic trust service" means an electronic service normally provided for remuneration, which consists of any of the following:
(i) the issuance and validation of certificates for electronic signatures, electronic seals, website authentication or certificates for the provision of other trust services;
(ii) the creation and validation of electronic signatures, electronic seals and electronic time stamps;
(iii) the preservation of electronic signatures, electronic seals and related certificates;
(iv) the management of remote electronic signature creation devices or remote electronic seal creation devices;
(vy) the issuance and validation of electronic attestations of attributes;
(vi) the provision of electronic registered delivery services and validation of data transmitted through electronic registered delivery services and related evidence;
(vii) the electronic archiving of electronic data and electronic documents;
(viii) the recording of electronic data in an electronic ledger.
(e) “end-user” means a person who purchases or subscribes to an Internet access service from an Internet access service provider;
(f) “surveillance (control)” means activities carried out and measures taken by authorities authorised by domestic law or regulations to ensure that goods and services comply with domestic laws and regulations and do not pose a threat to health and safety or any other aspect of public interest protection;
(g) “surveillance (control) authority” means an authority responsible for carrying out surveillance (control);
(h) “personal data” means any information relating to an identified or identifiable natural person;
(i) “processing” of personal data means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, accumulation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, depersonalisation, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data, including by using information (automated) systems;