2. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted in the territory of a non-Party, nothing in Article 107 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licences or certifications granted in the territory of the other Party.
3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 2, whether existing or future, shall afford adequate opportunity for the other Party, upon request, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognised.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
Article 113. Qualifications Recognition Cooperation
1. Both Parties acknowledge existing work on qualifications recognition taking place under the auspices of the New Zealand – China Education Joint Working Group ("JWG") and encourage the JWG to further explore cooperation in mutual recognition of respective academic degrees and qualifications.
2. The New Zealand Qualifications Authority ("NZQA") and the Ministry of Labour and Social Security of China shall establish a joint working group to strengthen cooperation and explore possibilities for mutual recognition of respective vocational qualifications.
3. Both Parties agree to encourage NZQA and the Chinese authorities responsible for issuance and recognition of professional and vocational qualifications to strengthen cooperation to explore possibilities for recognition of other qualifications and professional and vocational licences.
Article 114. Payments and Transfers
1. Except in the circumstances envisaged in Article 202, a Party shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties as members of the International Monetary Fund under the Articles of Agreement of the International Monetary Fund ("Articles of Agreement"), including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 202 or at the request of the International Monetary Fund.
Article 115. Denial of Benefits
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to:
(a) service suppliers of the other Party where the service is being supplied by a juridical person that is owned or controlled by persons of a non-Party and the juridical person has no substantive business operations in the territory of the other Party; or
(b) service suppliers of the other Party where the service is being supplied by a juridical person that is owned or controlled by persons of the denying Party and the juridical person has no substantive business operations in the territory of the other Party.
Article 116. Transparency
1. Each Party shall publish international agreements pertaining to or affecting trade in services to which that Party is a signatory.
2. Any information provided under this Article shall be conveyed through the contact points referred to in Article 118.
Article 117. Committee on Services
1. The Parties hereby establish a Committee on Trade in Services that shall meet on the request of either Party or the FTA Joint Commission to consider any matter arising under this Chapter.
2. The Committee's functions shall include:
(a) reviewing the implementation and operation of this Chapter;
(b) identification and recommendation of measures to promote increased services trade between the Parties; and
(c) considering other trade in services issues of interest to a Party.
Article 118. Contact Points
Each Party shall designate one or more contact points to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
Article 119. Subsidies
1. The Parties shall review the issue of disciplines on subsidies related to trade in services in the light of any disciplines agreed under Article XV of GATS with a view to their incorporation into this Agreement.
2. At the request of a Party which considers that it is adversely affected by a subsidy of the other Party, the Parties shall enter into consultations on such matters.
Article 120. Modification of Schedules
1. A Party (referred to in this article as the "modifying Party") may modify or withdraw any commitment in its Schedule of Specific Commitments, at any time after 3 years have elapsed from the date on which that commitment entered into force provided that:
(a) it notifies the other Party (referred to in this article as the "affected Party") of its intention to modify or withdraw a commitment no later than 3 months before the intended date of implementation of the modification or withdrawal; and
(b) upon notification of a Party's intent to make such modification, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment.
2. In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is not less favourable to trade than provided for in the Schedules of Specific Commitments prior to such negotiations.
3. If agreement under paragraph 1(b) is not reached between the modifying Party and the affected Party within 3 months, the affected Party may refer the matter to arbitration in accordance with the procedures set out in Chapter 16 (Dispute Settlement).
4. The modifying Party may not modify or withdraw its commitment until it has made the necessary adjustments in conformity with the findings of the arbitration in relation to the question of whether paragraph 1(b) is satisfied under paragraph 3.
Article 121. Safeguard Measures
The Parties note the multilateral negotiations pursuant to Article X of GATS on the question of emergency safeguard measures based on the principle of non-discrimination. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Agreement so as to incorporate the results of such multilateral negotiations.
Article 122. Cooperation
1. The Parties shall strengthen cooperation efforts in service sectors, including sectors which are not covered by existing cooperation arrangements, such as cooperation on human resources, data study and sharing and capacity building in order to improve their domestic capacities, efficiencies and competitiveness.
2. Both Parties recognise China's current status as a developing country, and commit to work together to explore ways to expand services trade between them in line with their different development situations.
Article 123. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under its specific commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. If a Party has reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraph 1 or 2, that Party may request the other Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. If, after the date of entry into force of this Agreement, a Party grants monopoly rights regarding the supply of a service covered by its specific commitments, that Party shall notify the other Party no later than 3 months before the intended implementation of the grant of monopoly rights and paragraphs 1(b), 2, 3 and 4 of Article 120 shall apply.
5. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect, (a) authorizes or establishes a small number of service suppliers and (b) substantially prevents competition among those suppliers in its territory.
Article 124. Review
The Parties shall consult within 2 years of entry into force of this Agreement and at least every 3 years thereafter, or as otherwise agreed, to review the implementation of this Chapter and consider other trade in services issues of mutual interest, including the extension of most-favoured-nation treatment to additional services sectors not listed in Annex 9, with a view to the progressive liberalisation of the trade in services between them on a mutually advantageous basis.
Chapter 10. Movement of Natural Persons
Article 125. Definitions
For the purposes of this Chapter:
business visitor means a natural person of either Party who is:
(a) a service seller being a natural person who is a sales representative of a service supplier of that Party and is seeking temporary entry into the other Party for the purpose of negotiating the sale of services for that service supplier, where such representative will not be engaged in making direct sales to the general public or in supplying services directly;
(b) an investor of a Party, as defined in Chapter 11 (Investment), or a duly authorized representative of an investor of a Party, seeking temporary entry into the territory of the other Party to establish, expand, monitor, or dispose of an investment of that investor; or
(c) a goods seller, being a natural person who is seeking temporary entry into the territory of the other Party to negotiate for the sale of goods where such negotiations do not involve direct sales to the general public;
contractual service supplier means a natural person of a Party who:
(a) is an employee of a service supplier or an enterprise of a Party, whether a company, partnership or firm, who enters the territory of the other Party temporarily in order to perform a service pursuant to a contract(s) between his or her employer and a service consumer(s) in the territory of the other Party;
(b) is employed by a company, partnership or firm of the Party, which has no commercial presence in the territory of the other Party where the service is to be provided;
(c) receives his or her remuneration from that employer;
(d) has appropriate educational and professional qualifications relevant to the service to be provided;
executive means a natural person within an organization who primarily directs the management of the organization, exercises wide latitude in decision making, and receives only general supervision or direction from higher level executives, the board of directors or stockholders of the business. An executive would not directly perform tasks related to the actual provision of the service nor the operation of an investment;
immigration measure means any law, regulation, policy or procedure affecting the entry and sojourn of foreign nationals;
immigration formality means a visa, permit, pass, or other document or electronic authority granting a natural person of one Party the right to enter, reside or work in the territory of the other Party;
installer or servicer means a natural person who is an installer or servicer of machinery and/or equipment, where such installation and/or servicing by the supplying company is a condition of purchase of the said machinery or equipment. An installer or servicer cannot perform services which are not related to the service activity which is the subject of the contract;
intra-corporate transferee means a manager, an executive, or a specialist, who is an employee of a service supplier or investor of a Party with a commercial presence, as defined in Chapter 9 (Trade in Services), in the territory of the other Party;
manager means a natural person within an organization who primarily directs the organization or a department or subdivision of the organization, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire or take other personnel actions (such as promotion or leave authorization), and exercises discretionary authority over day-to-day operations;
natural person or natural person of a Party means a natural person of a Party as defined in Chapter 9 (Trade in Services);
skilled worker means a natural person of a Party who enters the other Party in order to work temporarily under an employment contract with a natural or juridical person of that other Party, and who is appropriately qualified and/or experienced for that employment;
specialist means a natural person within an organization who possesses knowledge at an advanced level of technical expertise, and who possesses proprietary knowledge of the organization's service, research equipment, techniques or management;
temporary employment entry means entry by a natural person of a Party, including a skilled worker, into the territory of the other Party in order to temporarily work under an employment contract concluded pursuant to the law of the receiving Party, without the intent to establish permanent residence;
temporary entry means entry by a business visitor, an intra-corporate transferee, an independent professional, a contractual service supplier, or an installer or servicer, as the case may be, without the intent to establish permanent residence and for the purpose of engaging in activities which are clearly related to their respective business purposes. Additionally, in the case of a business visitor, the salaries of and any related payments to such a visitor should be paid entirely by the service supplier or juridical person which employs that visitor in the visitor's home country.
Article 126. Objectives
The objective of this Chapter, which reflects the preferential trading relationship between the Parties and their mutual desire to facilitate temporary entry and temporary employment entry of natural persons, is to establish transparent criteria and streamlined procedures for temporary entry and temporary employment entry, while recognising the need to ensure border security and to protect the domestic labour force in the territories of the Parties.
Article 127. Scope
1. This Chapter applies to measures affecting the movement of natural persons of a Party into the territory of the other Party, where such persons are:
(a) business visitors;
(b) contractual services suppliers;
(c) intra-corporate transferees;
(d) skilled workers; or
(e) installers and servicers.
2. Nothing in this Chapter, Chapter 9 (Trade in Services) or Chapter 11 (Investment) shall apply to measures pertaining to citizenship, nationality, residence or employment on a permanent basis.
3. Nothing contained in this Chapter, Chapter 9 (Trade in Services) or Chapter 11 (Investment) shall prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of the other Party in its territory, including measures necessary to protect the integrity of its territory and to ensure the orderly movement of natural persons across its borders, provided such measures are not applied in a manner so as to nullify or impair the benefits accruing to the other Party under this Agreement. (7)
Article 128. Expeditious Application Procedures
1. Each Party shall process expeditiously applications for immigration formalities from natural persons of the other Party, including further immigration formality requests or extensions thereof, so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement. Each Party shall notify applicants for temporary entry and temporary employment entry, either directly or through their authorized representative or their prospective employer, of the outcome of their applications, including the period of stay and other conditions.
2. Each Party shall, within 10 working days after an application requesting temporary entry or temporary employment entry is considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application, or advise the applicant when a decision will be made. At the request of the applicant, the Party shall provide, without undue delay, information concerning the status of the application. The contact point for each Party for such queries is set out in Article 132.
3. The Parties affirm their commitments established in the APEC Business Travel Card Operating Framework.
4. Any fees imposed in respect of the processing of an immigration formality shall be limited to the approximate cost of services rendered.
Article 129. Grant of Temporary Entry
1. The Parties may make commitments in respect of temporary entry of natural persons.
2. Such commitments and the conditions governing them shall be inscribed in Annex 10.
3. Where a Party makes a commitment under paragraphs 1 and 2, that Party shall grant temporary entry to the extent provided for in that commitment, provided that such natural persons are otherwise qualified under all applicable immigration measures.
4. In respect of the commitments on temporary entry in Annex 10, unless otherwise specified therein, neither Party may:
(a) require labour certification tests, or other procedures of similar effect;
(b) impose or maintain any numerical restriction relating to temporary entry; or
(c) require labour market testing, economic needs testing or other procedures of similar effect as a condition for temporary entry.
5. Each Party shall limit any fees for processing applications for temporary entry of natural persons in a manner consistent with Article 128.
6. The temporary entry granted by virtue of this Chapter does not replace the requirements needed to carry out a profession or activity according to the specific laws and regulations in force in the territory of the Party authorizing the temporary entry.
Article 130. Grant of Temporary Employment Entry
1. The Parties may make commitments in respect of the temporary employment entry of natural persons.
2. Such commitments and the conditions governing them shall be inscribed in Annex 11.
3. Where a Party makes a commitment under paragraphs 1 and 2, that Party shall grant temporary employment entry to the extent provided for in that commitment, provided that such natural persons:
(a) are otherwise qualified under all applicable immigration measures; and
(b) are in possession of a genuine employment offer from an employer in that Party.
4. In respect of temporary employment entry under paragraphs 1 and 2, the Parties shall not require labour market testing, economic needs testing or other procedures of similar effect.
5. The Parties shall limit any fees for processing applications for temporary employment entry in a manner consistent with Article 128.
6. The temporary employment entry granted by virtue of this Chapter does not replace the requirements to carry out a profession or activity according to the specific laws and regulations in force in the territory of the Party authorizing the temporary employment entry.
Article 131. Transparency
Each Party shall:
(a) provide to the other Party such materials as will enable it to become acquainted with its measures relating to this Chapter;
(b) no later than 6 months after the date of entry into force of this Agreement, prepare, publish, and make available in its own territory, and in the territory of the other Party, explanatory material in a consolidated document regarding the requirements for temporary entry and temporary employment entry under this Chapter in such a manner as will enable natural persons of the other Party to become acquainted with them; and
(c) upon modifying or amending an immigration measure that affects the temporary entry and temporary employment entry of natural persons, ensure that such modifications or amendments are promptly published and made available in such a manner as will enable natural persons of the other Party to become acquainted with them.
Article 132. Contact Points
Each Party shall designate a contact point to facilitate communication and the effective implementation of this Chapter, and respond to inquiries from the other Party regarding regulations affecting the movement of natural persons between the Parties or on any matter covered by this Chapter, and shall provide details of this contact point to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact point. The contact point should identify and recommend areas for and ways of furthering cooperation between the Parties.
Article 133. Committee on Movement of Natural Persons
1. The Parties hereby establish a Committee on Movement of Natural Persons that shall meet on the request of either Party or the FTA Joint Commission to consider any matter arising under this Chapter.
2. The Committee's functions shall include:
(a) reviewing the implementation and operation of this Chapter;
(b) identification and recommendation of measures to promote increased movement of natural persons between the Parties; and
(c) considering other issues with respect to movement of natural persons of interest to a Party.
Article 134. Dispute Settlement
1. The relevant authorities of both Parties shall endeavour to favourably resolve any specific or general problems (within the framework of their domestic laws, regulations and other similar measures governing the movement of natural persons) that may arise from the implementation and administration of this Chapter.
2. If both Parties cannot reach agreement with regard to any specific issues raised from the implementation and administration of this Chapter as provided for in paragraph 1, Chapter 16 (Dispute Settlement) shall apply to the issues.
Chapter 11. Investment
Section 1. Investment
Article 135. Definitions
For the purposes of this Chapter:
Enterprise means any entity constituted or otherwise organized under applicable law, whether or not for profit, and whether privately owned or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association or similar organization;
Enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a subsidiary located in the territory of a Party and engaged in substantive business operations there;
investment means every kind of asset invested, directly or indirectly, by the investors of a Party in the territory of the other Party including, but not limited to, the following:
(a) movable and immovable property and other property rights such as mortgages and pledges;
(b) shares, debentures, stock and any other kind of participation in companies;
(c) claims to money or to any other contractual performance having an economic value associated with an investment;
(d) intellectual property rights, in particular, copyrights, patents and industrial designs, trade-marks, trade-names, technical processes, trade and business secrets, know-how and good-will;
(e) concessions conferred by law or under contract permitted by law, including concessions to search for, cultivate, extract or exploit natural resources;
(f) bonds, including government issued bonds, debentures, loans and other forms of debt (8) , and rights derived therefrom;
(g) any right conferred by law or under contract and any licences and permits pursuant to law; Any change in the form in which assets are invested does not affect their character as investments;
investments includes investments of legal persons of a third country which are owned or controlled by investors of one Party and which have been made in the territory of the other Party. The relevant provisions of this Agreement shall apply to such investments only when such third country has no right or abandons the right to claim compensation after the investments have been expropriated by the other Party;
investor of a Party means a natural person or enterprise of a Party who seeks to make, is making, or has made an investment in the territory of the other Party; (9)
natural person of a Party means a national or a 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, this Chapter does not impose obligations on a Party with respect to the permanent residents of the other Party except for the obligations in Articles 142, 143, 144, 145 and 148.
Article 136. Objectives
The objectives of this Chapter are to:
(a) encourage and promote the flow of investment between the Parties and cooperation between the Parties on investment-related matters on a mutually beneficial basis;
(b) establish a framework of rules conducive to increasing investment flows between the Parties and to ensure the protection and security of investments of the other Party within each Party's territory; and
(c) promote cooperation between a Party and investors of the other Party who have investments in the territory of the former Party, on a mutually beneficial basis.
Article 137. Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; (b) investments of investors of the other Party.