1. Each Party recognises the rights and obligations relating to technical assistance in the TBT Agreement, especially for developing country Members. The Parties, through the Joint TBT Committee established under Article 100, shall jointly decide technical assistance projects in the field of technical barriers to trade for the purposes of implementing this Chapter. Such technical assistance projects may include, but are not limited to:
(a) providing training programmes for government officials;
(b) providing training programmes for technical personnel, including but not limited to inspection and test technical personnel, and standardisation personnel;
(c) providing technical assistance in the development and improvement of technical regulations and conformity assessment procedures;
(d) assisting to design and implement programmes to substantially improve a Party's ability to participate in international standardisation activities and the activities of international conformity assessment organizations; and
(e) any other forms of technical assistance jointly decided by the Parties.
2. The details of any technical assistance projects may be set out in Implementing Arrangement: Chapter 8 C.
Article 100. Implementation
1. The Parties hereby establish a Joint Technical Barriers to Trade Committee ("the Joint TBT Committee") which shall be co-chaired by senior officials of the competent authorities.
2. The Joint TBT Committee shall:
(a) take any action it decides appropriate for the implementation of this Chapter;
(b) establish working groups to consider issues relating to: (i) WTO enquiry and notification points;
(ii) standardisation; and
(iii) accreditation and conformity assessment;
(c) identify priority sectors for enhanced cooperation, including giving favourable consideration to any sector-specific proposal made by either Party;
(d) establish ad hoc working groups to develop and implement work programmes with clear targets, design structures and timelines in priority sectors;
(e) monitor the progress of work programmes and the implementation of Annexes and Implementing Arrangements;
(f) consult with a view to resolving any matter arising under this Chapter, in accordance with Article 101;
(g) review this Chapter in light of any developments under the TBT Agreement, and develop recommendations for amendments to this Chapter in light of those developments;
(h) take any other steps the Parties consider will assist them in implementing the TBT Agreement and in facilitating trade in goods between them; and
(i) report to the FTA Joint Commission on the implementation of this Chapter, as it considers appropriate.
3. After obtaining any necessary authorisation from their respective competent authorities, the Joint TBT Committee may:
(a) initiate and develop proposals for the conclusion of new Annexes to this Chapter in accordance with Article 102.1 and review existing Annexes with a view to developing proposals for their amendment, and submit any such proposals to the FTA Joint Commission for approval; and
(b) initiate, develop, conclude, review and modify Implementing Arrangements in accordance with Article 102.2. 4. The Joint TBT Committee shall conduct meetings to promote and monitor the implementation and administration of this Chapter at least once a year, or more frequently on the request of one of the Parties, via teleconference, video-conference or any other means mutually determined by the Parties.
5. The Parties shall ensure that the persons and organizations in their respective territories that have responsibility for relevant standards, technical regulations and conformity assessment procedures including accreditation, shall participate in working groups or other consultations decided by the Joint TBT Committee as appropriate where the Joint TBT Committee has:
(a) identified a priority sector for enhanced cooperation under paragraph 2(c);
(b) established a work programme under paragraph 2(d); or (c) been requested to undertake technical consultations under Article 101.
6. Each Party shall establish a contact point which shall have responsibility to coordinate the implementation of this Chapter.
7. The Parties shall provide each other with the name of the governmental organization that shall be their contact points and the contact details of relevant officials in that organization, including telephone, fax, email and other relevant details.
8. The Parties shall notify each other promptly of any change of their contact points or any amendments to the details of the relevant officials.
9. For the purposes of implementing this Chapter, the contact point of each Party shall:
(a) coordinate participation in work programmes established under paragraph 2 with persons and organizations in their respective territories that have responsibility for accreditation or relevant regulations;
(b) ensure appropriate steps are taken to consider any issue that a Party may raise related to the development, adoption, application or enforcement of technical regulations and conformity assessment procedures;
(c) facilitate, where appropriate, sectoral cooperation between governmental and non-governmental regulatory authorities, accreditation agencies and conformity assessment bodies in the Parties' territories; and
(d) exchange information on developments in non-governmental, regional and multilateral fora engaged in activities related to standardisation, technical regulations and conformity assessment procedures.
Article 101. Technical Consultations
1. Either Party may request technical consultations in accordance with Article 100.2(f) and unless the Parties mutually determine otherwise, the Parties shall hold technical consultations within 60 days from the request for technical consultations by email, teleconference, video-conference, or through any other means, as mutually determined by the Parties.
2. Where either Party has requested technical consultations on the application of any technical regulation or the recognition of any standard or conformity assessment procedure, the other Party shall investigate the issues that gave rise to the request for consultations, shall address any irregularities in the implementation of its technical regulations or conformity assessment procedures, and shall report back to the other Party on the outcome of its investigations, stating its reasons.
3. Technical consultations held pursuant to this Article are without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement).
Article 102. Annexes and Implementing Arrangements
1. The Parties may conclude Annexes to this Chapter setting out agreed principles and procedures relating to technical regulations and conformity assessments applicable to goods traded between them.
2. The Parties may, through the Joint TBT Committee, conclude Implementing Arrangements setting out:
(a) details for the implementation of the Annexes to this Chapter;
(b) arrangements on information exchange reached in accordance with Article 98;
(c) arrangements on technical assistance reached in accordance with Article 99; or
(d) arrangements resulting from work programmes established under Article 100.
3. The Parties acknowledge that Annexes and Implementing Arrangements concluded in accordance with this Chapter may take the form of a variety of mechanisms. This may include the use of asymmetrical approaches, where appropriate.
4. The Parties agree to maintain a programme of ongoing review and enhancement of Annexes and Implementing Arrangements concluded in accordance with this Chapter.
Chapter 9. Trade In Services
Article 103. Definitions
For the purposes of this Chapter:
commercial presence means any type of business or professional establishment, including through:
(a) the constitution, acquisition or maintenance of a juridical person, or
(b) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
controlled means having the power to name a majority of directors or otherwise legally direct the legal entity's actions;
juridical person of a Party means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association, which is either:
(a) constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party; or
(b) in the case of the supply of a service through commercial presence, owned or controlled by:
(i) natural persons of that Party; or
(ii) juridical persons of that Party identified under subparagraph (a);
measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form taken by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
measures by Parties affecting trade in services include measures in respect of:
(a) the purchase, payment or use of a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally;
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorized or established formally or in effect by that Party as the sole supplier of that service;
natural person of a Party means a national or permanent resident of a Party under its laws. Until such time as China enacts its domestic law on the treatment of permanent residents of foreign countries, the obligations of each Party with respect to the permanent residents of the other Party shall be limited to the extent of its obligations under GATS;
owned means holding more than 50 percent of the equity interest in the legal entity;
person of a Party means either a natural person or a juridical person of a Party;
qualification procedures means administrative procedures relating to the administration of qualification requirements;
qualification requirements means substantive requirements which a service supplier is required to fulfil in order to obtain certification or a licence;
sector of a service means, with reference to a specific commitment one or more or all subsectors of that service, as specified in a Party's Schedule; otherwise, the whole of that service sector, including all of its subsectors;
service consumer means any person that receives or uses a service;
service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
service supplier of a Party means any person of a Party that supplies a service; (1)
supply of a service includes the production, distribution, marketing, sale and delivery of a service;
trade in services is defined as the supply of a service:
(a) from the territory of one Party into the territory of the other Party ("cross-border mode");
(b) in the territory of one Party to the service consumer of the other Party ("consumption abroad mode");
(c) by a service supplier of one Party, through commercial presence in the territory of the other Party ("commercial presence mode"); or
(d) by a service supplier of one Party, through presence of natural persons of a Party in the territory of the other Party ("presence of natural persons mode").
Article 104. Objectives
The objective of this Chapter is to facilitate expansion of trade in services on a mutually advantageous basis, under conditions of transparency and progressive liberalisation. Both Parties recognise the role of governments in regulating services, and in providing and funding public services; the need for this to take into consideration national policy objectives and local circumstances; and the asymmetries existing with respect to the degree of development of services regulation between the Parties.
Article 105. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services. 2. This Chapter shall not apply to:
(a) laws, regulations, policies, or procedures of general application governing the procurement by government 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;
(b) services supplied in the exercise of governmental authority;
(c) subsidies or grants provided by a Party, except as provided for in Article 119;
(d) measures affecting natural persons seeking access to the employment market of a Party.
3. This Chapter shall not apply to measures affecting:
(a) air traffic rights, however granted; or
(b) services directly related to the exercise of air traffic rights, except as provided in paragraph 4.
4. This Chapter shall apply to measures affecting:
(a) aircraft repair and maintenance services;
(b) the selling and marketing of air transport services;
(c) computer reservation system ("CRS") services.
Article 106. National Treatment
1. In the sectors inscribed in its schedule of commitments, and subject to any conditions and qualifications set out therein, a 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 favourable than that it accords to its own like services and service suppliers. (2)
2. A Party may meet the requirement in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to the like service or service suppliers of the other Party.
Article 107. Most-favoured-nation Treatment
1. In respect of the services sectors listed in Annex 9, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a third country.
2. Notwithstanding paragraph 1, the Parties reserve the right to adopt or maintain any measure that accords differential treatment to third countries under any free trade agreement or multilateral international agreement in force or signed prior to the date of entry into force of this Agreement.
3. For greater certainty, paragraph 2 includes, in respect of agreements on the liberalisation of trade in goods or services or investment, any measures taken as part of a wider process of economic integration or trade liberalization between the parties to such agreements.
Article 108. Market Access
1. With respect to market access through the modes of supply identified in the definition of trade in services contained in Article 103, a Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Commitments. (3)
2. In sectors where market-access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional sub-division or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (4)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 109. Specific Commitments
1. Each Party shall set out in a Schedule the Specific Commitments it undertakes under Articles 106, 108 and 110. 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; and
(d) where appropriate the time-frame for implementation of such commitments.
2. Measures inconsistent with both Articles 106 and 108 shall be inscribed in the column relating to Article 108. In this case the inscription will be considered to provide a condition or qualification to Article 106 as well.
3. Schedules of Specific Commitments are annexed to this Agreement as Annex 8. 5
Article 110. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 106 or 108, including but not limited to those regarding qualification, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule.
Article 111. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. Where authorization is required for the supply of a service on which a specific commitment under this Agreement has been made, the competent authorities of each Party shall:
(a) in the case of an incomplete application, at the request of the applicant, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) at the request of the applicant, provide without undue delay information concerning the status of the application; and
(c) if an application is terminated or denied, to the maximum extent possible, inform the applicant in writing and without delay the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
4. With the objective of ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measures pursuant to Article Vl.4 of GATS, with a view to their incorporation into this Agreement. The Parties note that such disciplines aim to ensure that such requirements are, inter alia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
5. (a) In sectors in which a Party has undertaken specific commitments, pending the incorporation of the disciplines referred to in paragraph 4, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair its obligation under this Agreement in a manner which:
(i) does not comply with the criteria outlined in subparagraphs 4(a), (b) or (c); and
(ii) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under paragraph 5(a), account shall be taken of international standards of relevant international organizations applied by that Party. (6)
6. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party.
Article 112. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise, or encourage its relevant competent bodies to recognise, the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or their relevant competent bodies, or may be accorded autonomously.