related to this data exchange in English.
5. The exchange of import statistics and tariff rates shall start in the year following the first full calendar year after the entry into force of this Agreement.
6. Notwithstanding paragraphs 1 and 2, no Party shall be obliged to exchange data
that is confidential in accordance with its domestic laws and regulations.
Article 2. Review Clause
Five years from the entry into force of this Agreement, at the request of a Party, the Parties shall conduct a review of the provisions relating to trade in goods and explore opportunities for further liberalisation of trade in goods, including the possibility of additional tariff reductions. The review shall take account of the pattern of trade between the Parties, the sensitivities of such products, and the development of agricultural policy on either side.
Article 2.26. Sub-Committee on Trade In Goods 1. a Sub-Committee on Trade In Goods (Sub-Committee) Is Hereby Established.
2. The mandate of the Sub-Committee is set out in Annex VII (Mandate of the Sub- Committee on Trade in Goods).
-17-
Chapter 3. TRADE IN SERVICES
Article 3.1.
Scope and Coverage 1. This Chapter applies to measures by Parties affecting trade in services and taken by central, regional or local governments and authorities as well as by non-governmental
bodies in the exercise of powers delegated by central, regional or local governments or authorities. It applies to all services sectors.
2. This Chapter does not apply to air services, including domestic and international air transportation services, whether scheduled or non-scheduled, or to related services in support of air services, other than the following:
(a) aircraft repair and maintenance services;
(b) the selling and marketing of air transport services; (c) computer reservation system (CRS) services;
(d) ground handling services; and
(e) airport operation services.
3. Articles 3.4 (Most-Favoured-Nation Treatment), 3.5 (Market Access) and 3.6 (National Treatment) shall not apply to domestic laws and regulations governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.
Article 3.2.
Incorporation of Provisions from the GATS Where a provision of this Chapter provides that a provision of the GATS is incorporated into and made part of this Chapter, the meaning of the terms used in the GATS provision shall be understood as follows: (a) âMemberâ means Party;
(b) âScheduleâ means a Schedule referred to in Article 3.18 (Schedules of Specific Commitments) and contained in Annex VIII (Schedules of Specific Commitments); and
(c) âspecific commitmentâ means a specific commitment in a Schedule referred to in Article 3.18 (Schedules of Specific Commitments).
-18-
Article 3.3.
Definitions 1. The following definitions of Article I of the GATS are hereby incorporated into and made part of this Chapter: (a) âtrade in servicesâ; (b) âservicesâ; and (c) âa-service supplied in the exercise of governmental authorityâ.
2. For the purposes of this Chapter:
(a) âservice supplierâ means any person that supplies, or seeks to supply, a service;*
(b) ânatural person of another Partyâ means a natural person who, under the legislation of that other Party, is:
@
(ii)
a national of that other Party who resides in the territory of a Party or in the territory of any Member of the WTO; or
a permanent resident of that other Party who resides in the territory of a Party, if that other Party accords substantially the same treatment to its permanent residents as to its nationals in respect of measures affecting trade in services. For the purpose of the supply of a service through presence of natural persons (Mode 4), this definition covers a permanent resident of that other Party who resides in the territory of a Party or in the territory of any Member of the WTO;
(c) âSuridical person of another Partyâ means a juridical person which is
either:
@
3
constituted or otherwise organised under the law of that other Party, and is engaged in substantive business operations in the territory of:
(aa) a Party; or
Where the service is not supplied or sought to be supplied directly by a juridical person but through
other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such commercial presence be accorded the treatment provided for service suppliers under this Chapter. Such treatment shall be extended to the commercial presence through which the service is supplied or sought to be supplied and need not be extended to any other parts of the service supplier located outside the territory where the service is supplied or sought to be
supplied.
-19-
(bb) any Member of the WTO and is owned or controlled by natural persons of that other Party or by juridical persons that meet all the conditions of subparagraph (i)(aa); or
(ii) â in the case of the supply of a service through commercial presence, owned or controlled by:
(aa) natural persons of that other Party; or
(bb) juridical persons of that other Party identified under subparagraph (c)(i).
3. The following definitions of Article XXVIII of the GATS are hereby incorporated into and made part of this Chapter:
(a) âmeasureâ;
(b) âsupply of a serviceâ;
(c) âmeasures by Members affecting trade in servicesâ; (d) âcommercial presenceâ;
(e) âsectorâ of a service;
(63) âservice of another Memberâ;
(g) âmonopoly supplier of a serviceâ;
(h) âservice consumerâ;
(i) âpersonâ;
qj) âSuridical personâ;
(k) âownedâ, âcontrolledâ and âaffiliatedâ; and
qa) âdirect taxesâ.
Article 3.4. Most-Favoured-Nation Treatment
1. Without prejudice to measures taken in accordance with Article 3.9 (Recognition), and except as provided for in its List of MFN Exemptions contained in Annex IX (List of MEN Exceptions) each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of another Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-Party.
-20-
2. Treatment granted under other existing or future agreements concluded by a Party and in compliance with the requirements of paragraph 1 of Article V or Article V bis paragraph (a), mutatis mutandis, of the GATS shall not be subject to paragraph 1.
3. If a Party enters into an agreement in compliance with the requirements of paragraph 1 of Article V or Article V bis paragraph (a), mutatis mutandis, of the GATS, it shall, upon request from another Party, afford adequate opportunity to that Party to negotiate the benefits granted therein.
4. Nothing in this Chapter shall be so construed as to prevent any Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous zones of services that are both locally produced and consumed.
Article 3.5.
Market Access Article XVI of the GATS applies and is hereby incorporated into and made part of this Chapter.
Article 3.6. National Treatment Article XVII of the GATS Applies and Is Hereby Incorporated Into and Made Part of this Chapter.
Article 3.7. Additional Commitments
Article Article XVIII of the GATS Applies and Is Hereby Incorporated Into and Made Part of this Chapter.
Article 3.8. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute, as soon as practicable, judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
-21-
3. Where authorisation is required by a Party for the supply of a service, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application is considered complete under that Partyâs domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of that Party shall provide, without undue delay, information concerning the status of the application.
4. Each Party shall ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures, in all services sectors, are based on objective and transparent criteria, such as competence and the ability to supply the service.
5. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures do not constitute unnecessary barriers to trade in services, the Joint Committee shall take a decision aiming at incorporating into this Agreement any disciplines developed in the WTO in accordance with paragraph 4 of Article VI of the GATS. The Parties may also, jointly or bilaterally, decide to develop further disciplines.
(a) In sectors in which a Party has undertaken specific commitments, pending the entry into force of a decision incorporating WTO disciplines for these sectors pursuant to paragraph 5, and, if agreed between Parties, disciplines developed jointly or bilaterally under this Agreement pursuant to paragraph 5, the Party shall not apply qualification requirements and procedures, technical standards and licensing requirements and procedures that nullify or impair such specific commitments in a manner which is:
(i) more burdensome than necessary to ensure the quality of the service; or
(ii) â_âin the case of licensing procedures, in itself a restriction on the supply of the service.
(b) Indetermining whether a Party is in conformity with the obligation under subparagraph (a), account shall be taken of international standards of relevant international organisationsâ applied by that Party.
6. Each Party shall provide for adequate procedures to verify the competence of professionals of any other Party.
Article 3.9. Recognition
1. For the purposes of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to any requests by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such
4 The term ârelevant international organisationsâ refers to international bodies whose membership
is open to the relevant bodies of at least all Parties.
-22-
recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-Party, that Party shall afford another Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted, in the territory of that other Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VII of the GATS.
Article 3.10. Movement of Natural Persons
1. This Article applies to measures affecting natural persons who are service suppliers of a Party, and natural persons ofa Party who are employed by a service supplier of a Party, with respect to the supply of a service.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, residence or employment on a permanent basis.
3. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment.*
Article 3.11. Transparency
Paragraphs 1 and 2 of Article I and Article III bis of the GATS apply and are hereby incorporated into and made part of this Chapter.
5 The sole fact of requiring a visa for natural persons shall not be regarded as nullifying or impairing benefits under a specific commitment.
-23 -
Article 3. Monopolies and Exclusive Service Suppliers
Paragraphs 1, 2 and 5 of Article VII of the GATS apply and are hereby incorporated into and made part of this Chapter.
Article 3.13. Business Practices
Article Article IX of the GATS Applies and Is Hereby Incorporated Into and Made Part of this Chapter.
Article 3.14. Payments and Transfers
1. Except under the circumstances envisaged in Article 3.15 (Restrictions to Safeguard the Balance of Payments), a Party shall not apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of Agreement of the International Monetary Fund (IMF), including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 3.15 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 3.15. Restrictions to Safeguard the Balance of Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. Paragraphs 1 to 3 of Article XII of the GATS apply and are hereby incorporated into and made part of this Chapter.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
-24-
Article 3.16. Subsidies
1. A Party which considers that it is adversely affected by a subsidy of another Party may request ad hoc consultations with that Party on such matters. The requested Party shall enter into such consultations.
2. The Parties shall review any disciplines agreed under Article XV of the GATS with a view to incorporating them into this Chapter.
Article 3.17.
Exceptions Article XIV and paragraph 1 of Article XIV bis of the GATS apply and are hereby incorporated into and made part of this Chapter.
Article 3.18. Schedules of Specific Commitments
1. Each Party shall set out in a Schedule the specific commitments it undertakes under Articles 3.5 (Market Access), 3.6 (National Treatment) and 3.7 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access; (b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 3.7 (Additional Commitments); and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 3.5 (Market Access) and 3.6 (National Treatment) shall be subject to paragraph 2 of Article XX of the GATS.
3. The Partiesâ Schedules of Specific Commitments are set out in Annex VIII (Schedules of Specific Commitments).
Article 3.19. Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Partyâs
-25 -
Schedule of Specific Commitments. The consultations shall be held within three months from the receipt of the request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in Annex VIII (Schedule of Specific Commitments) prior to such consultations is maintained. Modifications of Schedules of Specific Commitments are subject to the procedures set out in Articles 7.1 (Joint Committee) and 9.2 (Amendments).
Article 3.20.
Review With the objective of further liberalising trade in services between them, the Parties shall review at least every five years, or more frequently if so agreed, their Schedules of Specific Commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and on-going work under the auspices
of the WTO. The first such review shall take place no later than five years from entry into force of this Agreement.
Article 3.21. Annexes the Following Annexes Form an Integral Part of this Chapter: (a) Annex VIII (Schedules of Specific Commitments); (b) Annex IX (List of MFN Exemptions); (c) Annex X (Financial Services); (d) Annex XI (Telecommunication Services); and(e) Annex XII (Movement of Natural Persons).
- 26 -
Chapter 4. PROTECTION OF INTELLECTUAL PROPERTY
Article 4.1. Protection of Intellectual Property
1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, including counterfeiting and piracy, in accordance with this Chapter and Annex XIII (Protection of Intellectual Property Rights), and the international agreements referred to therein.
2. The Parties shall accord to each otherâs nationals treatment no less favourable than that they accord to their own nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
3. The Parties shall grant to each otherâs nationals treatment no less favourable than that accorded to nationals of a non-Party. Exemptions from this obligation must be in accordance with the substantive provisions of the TRIPS Agreement, in particular Articles 4 and 5.
4. On request of a Party, the Joint Committee shall review this Chapter and Annex XIII (Protection of Intellectual Property Rights), with a view to further improving the levels of protection and to avoiding or remedying trade distortions caused by actual levels of protection of intellectual property rights.
-27-
Chapter 5. COMPETITION
Article 5.1. Rules of Competition
1. The following practices of enterprises are incompatible with the proper functioning of this Agreement in so far as they may affect trade between the Parties:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices between enterprises which have as their object or effect the prevention, restriction or distortion of competition; and
(b) abuse by one or more enterprises of a dominant position in the territory of a Party as a whole or in a substantial part thereof.
2. Paragraph 1 shall also apply to the activities of public enterprises, and enterprises to which the Parties grant special or exclusive rights, in so far as the application of these provisions does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
3. This Chapter shall be without prejudice to the autonomy of each Party to develop, maintain and enforce its competition laws and regulations.
4. This Article shall not be construed to create any direct obligations for enterprises. ARTICLE 5.2 Cooperation
1. The Parties shall cooperate and consult in their dealings with anti-competitive
practices referred to in paragraph 1 of Article 5.1 (Rules of Competition), with the aim of putting an end to such practices or their adverse effects on trade.
2. Cooperation may include the exchange of pertinent information that is available to the Parties. No Party shall be required to disclose information that is confidential according to its domestic laws and regulations.