4. No Party shall accord recognition in a manner that would constitute a means of discrimination between Parties or between Parties and non-Parties in the application of its standards or criteria for the authorisation, certification or licensing of service suppliers, or a disguised restriction on trade in services.
5. As set out in Annex 9-A, the Parties shall endeavour to facilitate trade in professional services.
Article 9.11. Transfers and Payments (8)
1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment, through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences, or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
For greater certainty, this Article does not preclude the equitable, non-discriminatory, and good faith application of a Party's laws relating to its social security, public retirement, or compulsory savings programs.
Article 9.12. Administration of this Chapter
Matters relating to administration of this Chapter shall be considered by the Parties through the Services, Investment and E-Commerce Committee established under Article 22.5(b) (Establishment of Cross-Cutting Committees).
Article 9.13. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-Party or by persons of the denying Party that has no substantial business activities in the territory of the other Party.
2. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-Party, and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
Annex 9-A. PROFESSIONAL SERVICE
Within 1 year after the entry into force of this Agreement, the Parties shall initiate dialogue to:
1. identify professional services of mutual interest among the Parties;
2. discuss issues that relate to the recognition of professional qualifications, licensing or registration; and
3. encourage its relevant bodies to establish dialogues with the relevant bodies of the other Party, with a view to facilitate trade in professional services.
Chapter 10. INTERNATIONAL MARITIME TRANSPORT SERVICES
Article 10.1. Definitions
For the purposes of this Chapter:
international maritime transport services means maritime transport of cargo or passengers between a port of a Party and a port of the other Party or a non-Party;
maritime auxiliary services refers to the following services:
(a) maritime cargo handling services means cargo handling services provided for containerised freight, non-containerised freight or passenger baggage. Included are services of freight terminal facilities, on a fee or contract basis, for the maritime sector, i.e. ports, including stevedoring services (i.e. the loading, unloading and discharging of vessels' containerised and non-containerised freight, at ports), and maritime cargo handling services incidental to freight transport;
(b) storage and warehousing services means storage and warehousing services of frozen or refrigerated goods, including perishable food products, bulk storage and warehousing services of liquids and gases, and storage and warehousing services of other goods, including: cotton, grain, wool, tobacco, other farm products, and other household goods;
customs clearance services or customs house brokersâ services means activities consisting in carrying out on behalf of another customs formalities concerning import, export or through transport of cargoes, whether this service is the main activity of the service provider or a usual complement of its main activity but excludes the exercise of statutory powers by customs officers;
container station and depot services means activities consisting of storing containers with a view to their stuffing/stripping, repairing and making them available for shipments;
maritime agency services means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information; and
(ii) acting on behalf of the companies in organising the call of the ship or taking over cargoes when required; and
(f) maritime freight forwarding services means the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
services at the port means pilotage; towing and the tug assistance; provisioning, fuelling and watering; garbage collecting and ballast waste disposal; port captain's services; navigation aids; shore-based operational services essential to ship operations including communications, water and electrical supplies; emergency repair facilities; anchorage.
Article 10.2. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting international maritime transport services supplied by a service supplier of the other Party.
2. For greater certainty, measures affecting the supply of international maritime transport services are subject to the obligations contained in the relevant provisions of Chapter 8 (Investment) and Chapter 9 (Cross-Border Trade in Services), and any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
3. The Parties recognise their respective rights and obligations under any applicable international instruments that regulate international maritime transport and activities related to maritime transport. (1)
Article 10.3. Access to Ports, Services at the Port, and Maritime Auxiliary Services
1. No Party shall:
(a) adopt or maintain any measure that would deny international maritime transport services or service suppliers of the other Party access on non-discriminatory terms and conditions:
(i) to ports;
(ii) to infrastructure and services at the port; or
(ii) to maritime auxiliary services.
2. Paragraph 1 refers solely to the access to and use of the ports, infrastructure and services at the port, and maritime auxiliary services, but not the supply of such infrastructure and services at the port, or maritime auxiliary services, including the leasing of vessels, themselves.
Article 10.4. Cooperation
The Parties shall endeavour to undertake and strengthen cooperation activities between them in the international maritime transport services sector. Areas of cooperation may include, but are not limited to:
(a) working together through international fora to overcome obstacles that may arise in the provision of international maritime transport services and to sharing knowledge of best practices;
(b) sharing information about laws and regulations, public policies or programmes that contribute to greater efficiency in the provision of international maritime transport services and services;
(c) promoting and sharing information on education and training opportunities for personnel engaged in maritime transport services, including information required for the recognition of seafarers' qualifications;
(d) promoting the exchange of students between academic merchant marine training centres of the Parties subject to availability and the selection processes determined by each Party;
(e) encouraging the exchange of experiences on trade facilitation projects, such as the "Single Window", the concept of a "business single point of vessel-port interface," under recognition procedures for electronic documents related to vessels, crew and cargo; and
(f) exploring the possibility of working together in the pursuit of mechanisms to facilitate and promote the on board training for students on the vessels of the Parties.
Article 10.5. Repositioning of Empty Containers
Each Party shall permit international maritime transport service suppliers to reposition empty containers, whether owned or leased, which are not being carried as cargo against payment, between ports located in the Party.
Article 10.6. Port Fees and Charges
1. Each Party shall recognise the International Tonnage Certificate (1969) duly issued to a vessel of an international maritime transport service supplier of the other Party pursuant to the International Convention on Tonnage Measurement of Ships, 1969 ("Convention"). Tonnage-based port charges and expenses shall be collected on the basis of tonnage as stated in the International Tonnage Certificate (1969) or, in the case of a vessel not subject to the Convention, the certificate of registry.
2. If a Party decides to carry out an inspection related to the tonnage of a vessel, such inspection shall be carried out in compliance with the Convention.
Article 10.7. Administration of this Chapter
1. Matters relating to administration of this Chapter shall be considered by the Parties through the Services, Investment and E-Commerce Committee established under Article 22.5(b) (Establishment of Cross-Cutting Committees).
2. The Services, Investment and E-Commerce Committee shall have the following additional function under this Chapter:
(a) to consider further opportunities to facilitate the international maritime transport, including through the development of activities undertaken pursuant to Article 10.4.
Chapter 11. TEMPORARY ENTRY FOR BUSINESS PERSONS
Article 11.1. Definitions
For the purposes of this Chapter:
business person means a natural person who has the nationality of a Party according to Article 2.2 (Party-Specific Definitions), who is engaged in trading goods, providing services or conducting investment activities;
immigration formality means a visa, permit, pass or other document or electronic authorisation granting temporary entry;
immigration measure means any measure affecting the entry and stay of foreign nationals; and
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Article 11.2. Scope
1. This Chapter shall apply to measures that affect the temporary entry of business persons of a Party into the territory of the other Party.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of the other Party, nor shall it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of the other 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 those measures are not applied in a manner as to nullify or impair the benefits accruing to the other Party under this Chapter.
4. Thesole fact that a Party requires business persons of the other Party to obtain an immigration formality shall not be regarded as nullifying or impairing the benefits accruing to any Party under this Chapter.
Article 11.3. Application Procedures
1. Each Party shall, as expeditiously as possible following receipt of a complete application for an immigration formality, issue its decision to the applicant. If the application is approved, the decision shall specify the period of stay and other conditions as needed.
2. At the request of an applicant, a Party that has received a complete application for an immigration formality shall endeavour to promptly provide information concerning the status of the application.
3. Each Party shall ensure that fees charged by its competent authorities for the processing of an application for an immigration formality are reasonable, in that they do not unduly impair or delay trade in goods or services or conduct of investment activities under this Agreement.
4. Each Party shall endeavor to accept and process applications in electronic format.
Article 11.4. Grant of Temporary Entry
1. Each Party shall set out in Annex 11-A the commitments it makes with regard to temporary entry of business persons, which shall specify the conditions and limitations for entry and temporary stay, including length of stay, for each category of business persons specified by that Party.
2. A Party shall grant temporary entry or extension of temporary stay to business persons of the other Party to the extent provided for in those commitments made pursuant to paragraph 1, provided that those business persons:
(a) follow the granting Party's prescribed application procedures for the relevant immigration formality; and
(b) comply with all relevant eligibility requirements for temporary entry or extension of temporary stay.
3. The sole fact that a Party grants temporary entry to a business person of the other Party pursuant to this Chapter shall not be construed to exempt that business person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practise a profession or otherwise engage in business activities.
4. A Party may refuse to issue an immigration formality to a business person of the other Party in cases where the temporary entry of that business person might adversely affect:
(a) the settlement of any labour dispute that is in progress at the place or intended place of employment; or
(b) the employment of any natural person who is involved in such dispute.
5. When a Party refuses pursuant to paragraph 4 to issue an immigration formality, it shall inform the applicant accordingly.
Article 11.5. Provision of Information
1. Further to Article 21.2 (Publication) and Article 21.3 (Notification and Provision of Information), each Party shall:
(a) promptly publish online if possible or otherwise make publicly available, information on:
(i) current requirements for temporary entry under this Chapter, including explanatory material and relevant forms and documents that will enable interested persons of the other Party to become acquainted with those requirements; and
(ii) the typical timeframe within which an application for an immigration formality is processed; and
(b) establish or maintain appropriate mechanisms to respond to enquiries from interested persons regarding measures relating to temporary entry covered by this Chapter.
2. The information referred to in subparagraph 1(a) shall include, where applicable, the following information:
(a) types of immigration formality or any similar authorisation regarding temporary entry and temporary stay
(b) documentation required and conditions to be met; and (c) methods of filing an application and options on where to file, such as consular or visa offices or online. Article 11.6: Administration of the Chapter Matters relating to the administration of this Chapter shall be considered by the Parties through the Services, Investment and E-Commerce Committee established under paragraph Article 22.5(b) (Establishment of Cross-Cutting Committees) in consultation with the competent authorities.
Article 11.7. Cooperation
The Parties shall consider undertaking mutually agreed cooperation activities subject to available resources including by sharing experiences on regulations and the implementation of programs for expediting of certain categories of applicants, and technology related to border security, including security of travel documents.
Article 11.8. Relation to other Chapters
1. Except as provided in this Chapter, Chapter 1 (Initial Provisions), Chapter 2 (General Definitions), Chapter 22 (Administration of the Agreement), Chapter 23 (Dispute Settlement), Chapter 25 (Final Provisions), Article 21.2 (Publication) and Article 21.3 (Notification and Provision of Information), this Agreement shall not impose any obligation on a Party regarding its immigration measures.
2. This Chapter shall not be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Article 11.9. Dispute Settlement
1. No Party shall have recourse to dispute settlement under Chapter 23 (Dispute Settlement) regarding a refusal to grant temporary entry unless:
(a) the matter involves a pattern of practice; and
(b) the business persons affected have exhausted all available administrative remedies regarding the refusal of temporary entry.
2. The remedies referred to in paragraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the other Party within a reasonable period of time after the date of the institution of proceedings for the remedy, including any proceedings for review or appeal, and the failure to issue such a determination is not attributable to delays caused by the business persons concerned.
Chapter 12. TELECOMMUNICATIONS
Article 12.1. Definitions
For the purposes of this Chapter:
co-location means access to and use of a physical space to install, maintain or repair equipment, at premises owned or controlled and used by a major supplier to provide public telecommunications services;
cost-oriented means based on cost, and may include a reasonable profit and may involve different cost calculation methodologies for different facilities or services;
end-user means a final consumer of or a subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
enterprise means an enterprise as defined in Article 2.1 (General Definitions) and a branch of an enterprise;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to supply a service;
interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
international mobile roaming service means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables end-users to use their home mobile handset or other device for voice, data or messaging services while outside the territory in which the end-user's home public telecommunications network is located;
leased circuit means a telecommunications facility between two or more designated points that is set aside for the dedicated use of, or availability to, a particular user;
licence means any authorisation that a Party may require of a person, in accordance with its laws and regulations, in order for that person to offer a telecommunications service, including concessions, permits or registrations;
major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services, as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications services in like circumstances, including with respect to timeliness;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
public telecommunications network means telecommunications infrastructure used to provide public telecommunications services between defined network termination points;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. These services may include telephone and data transmission typically involving transmission of customer-supplied information between two or more defined points without any end-to-end change in the form or content of the customer's information;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with, approved by or determined by a telecommunications regulatory body that sufficiently details the terms, rates, and conditions for interconnection so that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;
telecommunications means the transmission and reception of signals by any electromagnetic means;
telecommunications regulatory body means a body or bodies responsible for the regulation of telecommunications; and
user means a service consumer or a service supplier.
Article 12.2. Scope
1. This Chapter shall apply to measures by a Party affecting trade in public telecommunications services, including:
(a) any measure relating to access to and use of public telecommunications networks or services; and
(b) any measure relating to obligations regarding suppliers of public telecommunications networks or services
2. This Chapter shall not apply to any measure relating to broadcast or cable distribution of radio or television programming except that:
(a) Article 12.4 shall apply with respect to a cable or broadcast service supplier's access to and use of public telecommunications services; and
(b) Article 12.22 shall apply to any technical measure to the extent that the measure also affects public telecommunications services.
3. Nothing in this Chapter shall be construed to:
(a) require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate or supply telecommunications networks or services not offered to the public generally;
(b) require a Party to compel any enterprise, exclusively engaged in the broadcast or cable distribution of radio or television programming, to make available its cable or broadcast facilities as a public telecommunications network; or
(c) prevent a Party from prohibiting a person who operates a private network from using its private network to supply a public telecommunications network or service to third persons.
4. Annex 12-A includes additional provisions relating to the scope of this Chapter.