(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, travellers cheques 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 cheques, 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.
Annex 10. Referred to in chapter 12 (movement of natural persons)
SPECIFIC COMMITMENTS ON THE MOVEMENT OF NATURAL PERSONS
Part 1. Specific Commitments of Australia
1. Australia requires a natural person of Japan seeking entry and temporary stay in Australia under the provisions of Chapter 12 (Movement of Natural Persons) and this Annex to obtain, prior to entry, an appropriate visa or permit or other document or electronic authority granting entry and temporary stay and comply with any relevant requirements.
2. For the categories of specific commitments in Part 1 of this Annex Australia shall not impose or maintain any limitations on the total number of visas to be granted to natural persons in the formof numerical quotas or the requirement of an economic needs test.
Note: For the purposes of this Part, the term "actively operating" means that the enterprise concerned is engaged in substantive business operations in Australia.
Section 1. Business Visitors of Japan
1. Entry and temporary stay shall be granted to a natural person of Japan referred to in subparagraph 3(a) for a period of up to 90 days.
2. Entry and temporary stay shall be granted to a natural person of Japan referred to in subparagraph 3(b) for a period of up to six months, with the possibility of further stay.
3. Abusiness visitor of Japan means a natural person of Japan who is:
(a) a natural person seeking to travel to Australia for business purposes, including for investment purposes, whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia, and who must not engage in making direct sales to the general public or in supplying goods or services themselves; or
(b) a service seller, who is a natural person not based in Australia whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia, and who is a sales representative of a service supplying enterprise, seeking entry and temporary stay for the purpose of negotiating for the sale of services or entering into agreements to sell services for that service supplying enterprise.
Section 2. Intra-corporate Transferees of Japan
1. Entry and temporary stay shall be granted to an intra-corporate transferee of Japan referred to in subparagraph 3(a) for a period of up to four years, with the possibility of further stay.
2. Entry and temporary stay shall be granted to an intra-corporate transferee of Japan referred to in subparagraph 3(b) for a period of up to two years, with the possibility of further stay.
3. An intra-corporate transferee of Japan means an employee of an enterprise of Japan established in Australia through a branch, subsidiary or affiliate which is lawfully and actively operating in Australia, who is transferred to fill a position in the branch, subsidiary or affiliate of the enterprise in Australia, and who is:
(a) an executive or a senior manager, who is a natural person responsible for the entire or a substantial part of the operations of the enterprise in Australia, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the enterprise, including directing the enterprise ora department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the enterprise; or
(b) a specialist, who is a natural person with advanced trade, technical or professional skills and experience who must be assessed as having the necessary qualifications, or alternative credentials accepted as meeting the domestic standards in Australia, for that occupation, and who must have been employed by the employer for not less than two years immediately preceding the date of the application for entry and temporary stay.
4. Entry and temporary stay of such a natural person who is seeking entry and temporary stay in accordance with paragraph 1 or 2 is subject to employer sponsorship. Full details of employer sponsorship requirements, including the list of eligible occupations for sponsorship, are available on the website of the Australian government department responsible for immigration matters. Employer sponsorship requirements and eligible occupations may change from time to time.
Section 3. Investors of Japan
1. Entry and temporary stay shall be granted to an investor of Japan for a period of up to two years.
2. An investor of Japan means an executive of an enterprise headquartered in Japan who is establishing a branch or subsidiary of that enterprise in Australia, and who is anatural person that will be responsible for the entire or a substantial part of the enterprise's operations in Australia, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the enterprise, including directing the enterprise or a department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the enterprise.
3. Entry and temporary stay of a natural person who is seeking entry and temporary stay pursuant to paragraph 1 is subject to employer sponsorship. Full details of employer sponsorship requirements, including the list of eligible occupations for sponsorship, are available on the website of the Australian government department responsible for immigration matters. Employer sponsorship requirements and eligible occupations may change from time to time.
Section 4. Contractual Service Suppliers of Japan
1. Entry and temporary stay shall be granted to a contractual service supplier of Japan for a period of up to one year, with the possibility of further stay.
2. A contractual service supplier of Japan means a natural person of Japan:
(a) who has trade, technical or professional skills and experience and:
(i) who is an employee of an enterprise of Japan that has concluded a contract for the supply of a service within Australia and which does not have a commercial presence within Australia; or
(ii) who is engaged by an enterprise lawfully and actively operating in Australia in order to supply a service under a contract within Australia; and
(b) who is assessed as having the necessary qualifications, skills and work experience accepted as meeting the domestic standard in Australia for their nominated occupation.
3. Entry and temporary stay of a natural person who is seeking entry and temporary stay pursuant to paragraph 1 is subject to employer sponsorship. Full details of employer sponsorship requirements, including the list of eligible occupations for sponsorship, are available on the website of the Australian government department responsible for immigration matters. Employer sponsorship requirements and eligible occupations may change from time to time.
Section 5. Accompanying Spouse and Dependents
For a natural person of Japan who has been granted the right of entry and temporary stay under this Chapter for a period of longer than 12 months and who has a spouse or dependent, Australia shall, upon application, grant the accompanying spouse or dependent the right of entry and temporary stay, movement and work for an equal period to that of the natural person.
Part 2. Specific Commitments of Japan
Japan may require a natural person of Australia seeking entry and temporary stay under the terms and conditions set out in each Section of this Part to obtain an appropriate visa or its equivalent prior to entry.
Section 1. Short-term Business Visitors of Australia
Entry and temporary stay for a period not exceeding 90 days, which may be extended, shall be granted to a natural person of Australia who stays in Japan without acquiring remuneration from within Japan and without engaging in making direct sales to the general public or in supplying goods or services himself or herself, for the purposes of participating in business contacts including negotiations for the sale of goods or services, or other similar activities including those to prepare for establishing commercial presence in Japan.
Section 2. Intra-corporate Transferees of Australia
1. Entry and temporary stay for a period of one or three years, which may be extended, shall be granted to a natural person of Australia who has been employed by an enterprise that supplies goods or services in Japan or by an enterprise that invests in Japan for a period of not less than one year immediately preceding the date of his or her application for entry and temporary stay in Japan, who is being transferred to its branch office or its representative office in Japan, or an enterprise constituted or organised in Japan owned or controlled by or affiliated with the aforementioned enterprise, and who will engage in one of the following activities during his or her temporary stay in Japan:
(a) activities to direct a branch office or a representative office as its head;
(b) activities to direct an enterprise as its board member or auditor;
(c) activities to direct one or more departments of an enterprise;
(d) activities which require technology or knowledge at an advanced level pertinent to physical sciences, engineering or other natural sciences, recognised under the status of residence of "Engineer" provided for in the Immigration Control and Refugee Recognition Act (Cabinet Order No. 319 of 1951); or
(e) activities which require knowledge at an advanced level pertinent to human science, including jurisprudence, economics, business management and accounting, or which require ideas and sensitivity based on culture of a country other than Japan, recognised under the status of residence of "Specialist in Humanities/International Services" provided for in the Immigration Control and Refugee Recognition Act.
Note: For the purposes of this Annex, an enterprise is "affiliated" with another enterprise when the latter can significantly affect the decision making of the former on finance and business policy.
2. Activities which require technology or knowledge at an advanced level pertinent to natural or human sciences referred to in subparagraphs 1(d) and (e) mean activities in which the natural person may not be able to engage without the application of specialised technology or knowledge of natural or human sciences acquired by him or her, by, in principle, completing college education (i.e. bachelor's degree) or higher education.
Section 3. Investors of Australia
Entry and temporary stay for a period of one or three years, which may be extended, shall be granted to a natural person of Australia who will engage in one of the following activities during his or her temporary stay in Japan:
(a) activities to invest in business in Japan and manage such business;
(b) activities to manage business in Japan on behalf of a person other than that of Japan who has invested in such business; or
(c) conduct of business in Japan in which a person other than that of Japan has invested.
Section 4. Natural Persons of Australia Who Engage In Professional Services
Entry and temporary stay for a period of one or three years, which may be extended, shall be granted to a natural person of Australia who is a legal, accounting or taxation service supplier qualified under the laws and regulations of Japan (as specified in the subparagraphs below) and who, not necessarily obtaining a contract to provide services, will engage in one of the following activities during his or her temporary stay in Japan:
(a) legal services supplied by a lawyer qualified as "Bengoshi";
(b) legal advisory services on law of jurisdiction where the service supplier is a qualified lawyer on condition that the service supplier is qualified as "Gaikoku-Ho-Jimu-Bengoshi";
(c) legal services supplied by a patent attorney qualified as "Benrishi";
(d) legal services supplied by amaritime procedure agent qualified as "Kaijidairishi";
(e) accounting, auditing and bookkeeping services supplied by an accountant qualified as "Koninkaikeishi";
(f) taxation services supplied by a tax accountant qualified as "Zeirishi";
(g) legal services supplied by a judicial scrivener qualified as "Shiho-Shoshi";
(h) legal services supplied by an administrative scrivener qualified as "Gyousei-Shoshi";
(i) legal services supplied by a certified social insurance and labour consultant qualified as "Shakai-Hoken-Romushi"; or
(3) legal services supplied by a land and house surveyor qualified as "Tochi-Kaoku-Chosashi".
Section 5. Natural Persons of Australia Who Engage In Business Activities, Which Require Technology or Knowledge at an Advanced Level, on the Basis of a Personal Contract with Public or Private Organisations In Japan
1. Entry and temporary stay for a period of one or three years, which may be extended, shall be granted to a natural person of Australia who will engage in one of the following business activities, during his or her temporary stay in Japan on the basis of a personal contract with a public or private organisation in Japan:
(a) activities which require technology or knowledge at an advanced level pertinent to physical sciences, engineering or other natural sciences under the status of residence of "Engineer" provided for in the Immigration Control and Refugee Recognition Act; or
(b) activities which require knowledge at an advanced level pertinent to human science, including jurisprudence, economics, business management and accounting, or which require ideas and sensitivity based on culture of a country other than Japan, under the status of residence of "Specialist in Humanities/International Services" provided for in the Immigration Control and Refugee Recognition Act.
2. Activities which require technology or knowledge at an advanced level pertinent to natural or human sciences referred to in paragraph 1 mean activities in which the natural person may not be able to engage without the application of specialised technology or knowledge of natural or human sciences acquired by him or her, by, in principle, completing college education (i.e. bachelor's degree) or higher education.
Note: Activities that meet the requirement specified in subparagraph 1(a) include those related to architectural services, civil engineering services, and urban planning and landscape architectural services. Activities that meet the requirement specified in subparagraph 1 (b) include those related to accounting, auditing and bookkeeping services, specialty design services, trade fair and exhibition organisation services, travel agencies and tour operator services, and tourist guide services.
Section 6. Accompanying Spouse and Children
1. Entry and temporary stay shall be granted to a spouse and children accompanying a natural person of Australia who has been granted entry and temporary stay in accordance with Sections 2 through 5, in principle for the same period as the period of temporary stay granted to the natural person, provided that such spouse and children obtain maintenance from the natural person and engage in daily activities recognised under the status of residence of "Dependent" provided for in the Immigration Control and Refugee Recognition Act.
2. A spouse who has been granted entry and temporary stay in accordance with paragraph 1 may, upon application, have his or her status of residence changed to that under which he or she is allowed to work, subject to the approval of the Government of Japan in accordance with the Immigration Control and Refugee Recognition Act.
Note: For the purposes of this Section, the terms "spouse" and "children" respectively mean a spouse or children recognised as such in accordance with the laws and regulations of Japan.
Annex 12. Referred to in chapter 14 (investment)
EXPROPRIATION
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Paragraph 1 of Article 14.11 (Investment - Expropriation and Compensation) addresses two situations:
(a) direct expropriation, where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure; and
(b) indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
3. The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by- case, fact-based inquiry that considers, among other factors:
(a) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(b) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(c) the character of the government action, including its objectives.
4. Except in rare circumstances, such as when an action or a series of actions by a Party is so severe in light of its purpose that it cannot be reasonably viewed as having been applied in good faith, non-discriminatory regulatory actions designed and applied by the Party for the purpose of legitimate public welfare objectives, such as the protection of public health, safety, and the environment, do not constitute indirect expropriation.
Attachments
Implementing agreement between the government of japan and the government of australia pursuant to article 1.12 of the agreement between japan and australia for an economic partnership
PREAMBLE
The Government of Japan and the Government of Australia (hereinafter referred to as "the Parties"),
In accordance with Article 1.12 (General Provisions - Implementing Agreement) of the Agreement between Japan and Australia for an Economic Partnership (hereinafter referred to as "the Basic Agreement"),
HAVE AGREED as follows:
Chapter 1. General Provisions
1.1. Scope and Relationship to the Basic Agreement
1. This Agreement sets out the details and procedures for the implementation of certain provisions of the Basic Agreement.
2. Unless otherwise provided for in this Agreement, the definitions set out in the Basic Agreement shall apply to this Agreement, mutatis mutandis.
3. Chapter 19 (Dispute Settlement) of the Basic Agreement shall apply mutatis mutandis with respect to the settlement of disputes between the Parties concerning the implementation, interpretation or application of this Agreement.
Chapter 2. Rules of Origin
2.1. Issuance of Certificate of Origin
1. Signatures of the representatives of the authorised body of the exporting Party or its other certification bodies on a Certificate of Origin shall be autographed or electronically printed. Stamps or official seals of the authorised body or other certification bodies may be printed electronically as well.
2. In principle, a Certificate of Origin shall be issued by the time of shipment.
3. In exceptional cases where the Certificate of Origin has not been issued by the time of shipment, on request of the exporter or producer, the Certificate of Origin may be issued retrospectively in accordance with the domestic laws and regulations of the exporting Party within 12 months from the date of shipment, in which case it shall be necessary to indicate "ISSUED RETROSPECTIVELY" in the relevant field of the Certificate of Origin. The Certificate of Origin issued retrospectively shall indicate the date of shipment in the relevant field of the Certificate of Origin.
4. A Certificate of Origin issued retrospectively shall remain valid for one year from the date of shipment.
5. In the event of theft, loss or destruction of an issued Certificate of Origin before the expiration of its validity, the exporter, the producer or their authorised representative may request the authorised body of the exporting Party or its other certification bodies to issue a new Certificate of Origin as a duplicate of the original Certificate of Origin on the basis of the documents in their possession. The Certificate of Origin issued in this way shall bear the word "DUPLICATE OF THE ORIGINAL CERTIFICATE OF ORIGIN NUMBER_DATED_" in the relevant field of the Certificate of Origin. The date of issuance of the original Certificate of Origin shall be indicated in the new Certificate of Origin. The new Certificate of Origin shall be valid during the term of the validity of the original Certificate of Origin.
2.2. Modification
1. In case a Documentary Evidence of Origin contains incorrect information:
(a) the exporter, producer or their authorised representative may request the issuance of a new Certificate of Origin and the invalidation of the original Certificate of Origin; or
(b) the importer, exporter, or producer may complete a new origin certification document and withdraw the original origin certification document.
2. Notwithstanding paragraph l(a), the authorised body of the exporting Party or its other certification bodies may, in response to the request for the issuance of a new Certificate of Origin or at their own initiative, make modifications to the Certificate of Origin by striking out errors and making any additions required. Such modifications shall be certified by the authorised signature and stamp or official seal of the authorised body of the exporting Party or its other certification bodies.
3. Erasures, superimpositions and modifications other than those referred to in paragraph 2 shall not be allowed on the issued Certificate of Origin.
2.3. Language of Documentary Evidence of Origin
1. The Documentary Evidence of Origin shall be completed in the English language.
2. Notwithstanding paragraph 1, in the case of importation into Japan, an importer may complete an origin certification document in the Japanese language.
2.4. Consignment
For the purposes of subparagraph (a) of Article 3.8 (Rules of Origin - Consignment) of the Basic Agreement, in case a good undergoes repacking, relabeling or splitting up, an importer shall provide, on request of the customs administration of the importing Party, a Documentary Evidence of Origin which is consistent with the state of consignment after such operations.
2.5. Minor Errors
The customs administration of the importing Party shall disregard minor errors, such as slight discrepancies or omissions, typing errors or protrusions from the designated field, provided that these minor errors are not such as to create doubts concerning the accuracy of the information included in the Documentary Evidence of Origin.
2.6. Communications on Origin Verification
1. For the purposes of Articles 3.21 (Rules of Origin - Origin Verification) and 3.22 (Rules of Origin - Verification Visit) of the Basic Agreement, communication between the customs administration of the importing Party and the exporters, the producers, the authorised body or the customs administration of the exporting Party shall be made through diplomatic channels unless otherwise agreed by the Parties.
2. Notwithstanding paragraph 1, for the purposes of Articles 3.21 (Rules of Origin - Origin Verification) and 3.22 (Rules of Origin - Verification Visit) of the Basic Agreement, the customs administration of the importing Party may communicate with the authorised body or the customs administration of the exporting Party and the exporter or the producer of the good who applied for the Certificate of Origin or completed the origin certification document, by any method with a confirmation of receipt, in parallel with the communications set out in paragraph 1.
3. Notwithstanding paragraphs 1 and 2, the customs administration of Australia may access the EPA CO Reference System provided by the Ministry of Economy, Trade and Industry of Japan for the purposes of verifying the authenticity of Certificates of Origin issued in Japan.
4. The language to be used for communications between the Parties in accordance with Articles 3.21 (Rules of Origin - Origin Verification) and 3.22 (Rules of Origin - Verification Visit) of the Basic Agreement shall be English.
Chapter 3. Customs Procedures
3.1. Mutual Assistance
1. To the extent permitted by the competence and available resources of their respective customs administrations, the Parties shall assist each other through their customs administrations to ensure proper application of customs laws, and to prevent, investigate and combat any violation or attempted violation of customs laws.
2. The Parties shall cooperate through their customs administrations, when necessary and appropriate, in the area of research, development, and testing of new customs procedures and new enforcement aids and techniques, training activities of customs officers, and exchange of personnel between them.
3.2. Information and Communications Technology
1. The customs administrations of the Parties shall make cooperative efforts to promote the use of information and communications technology in their customs procedures, including possible electronic data interchange between the customs administrations, taking into account international standards or methods developed under the auspices of international organisations or fora such as the Customs Cooperation Council, the International Organization for Standardization, and the United Nations Centre for Trade Facilitation and Electronic Business.
2. The customs administrations of the Parties shall exchange information, including best practices, on the use of information and communications technology for the purpose of improving customs procedures.
3. The introduction and enhancement of individual information and communications technology by the customs administrations of the Parties shall, to the greatest extent possible, be carried out taking into account the views expressed by relevant parties.
3.3. Risk Management
1. In order to facilitate customs clearance of goods traded between Australia and Japan, the customs administrations of the Parties shall continue to use risk management and promote the improvement of risk management techniques.