(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 8.3 (Market Access) and 8.4 (National Treatment) shall be inscribed in both the columns relating to Articles 8.3 (Market Access) and 8.4 (National Treatment).
3. Schedules of Specific Commitments shall be annexed to this Chapter as Annex 8-1 and shall form an integral part of this Agreement.
Article 8.7. Modification of Schedules
1. A Party may modify or withdraw any commitment in its Schedule of Specific Commitments in Annex 8-1, at any time after three year has elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article. It shall notify the other Party of its intent to so modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of the other Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Party shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of Specific Commitments prior to such negotiations.
3. If agreement on paragraph 2 is not reached between the modifying Party and the affected Party within six months, the affected Party may refer the matter in accordance with the procedures set out in Chapter 14 (Dispute Settlement).
Article 8.8. Review
The Parties shall review commitments on trade in services with the first review within five years from the date of entry into force of this Agreement. In this process, there shall be due respect for the national policy objectives and the level of development of the Parties, both overall and in individual sectors.
Article 8.9. 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. Each Party shall maintain or institute practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other 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.
3. The provisions of paragraph 2 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.
4. Where authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of that Party shall:
(a) within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application;
(b) at the request of the applicant, without undue delay provide information concerning the status of the application, including incomplete application. In the case of an incomplete application, identify all the additional information that is required to complete the application and provide an opportunity to the applicant to remedy deficiencies within a reasonable timeframe;
(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 shall have the possibility of resubmitting, at its discretion, a new application.
5. With a view to ensuring that domestic regulation, including 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 VI.4 of GATS, with a view to their incorporation into this Chapter. 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.
6. Pending the incorporation of disciplines pursuant to paragraph 5, for sectors where a Party has undertaken specific commitments and subject to any terms, limitations, conditions or qualifications set out therein, a Party shall not apply licensing and qualification requirements and procedures and technical standards that nullify or impair such specific commitments in a manner which:
(a) does not comply with the criteria outlined in paragraphs 5(a), 5(b) or 5(c);
(b) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made; and
(c) in determining whether the Party is in conformity with the obligation under paragraph 6, account shall be taken of international standards of relevant international organizations (6) applied by that Party.
7. 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 in accordance with the provisions in paragraph 6.
Article 8.10. Recognition
1. For the purposes of the fulfilment of its standards or criteria for the authorisation, licensing or certification of services suppliers, each Party shall give due consideration to any requests by the other Party to recognise the education or experience obtained, requirements met, or licenses or certifications granted in the other Party. Such recognition may be based upon an agreement or arrangement with the other Party, or otherwise be accorded autonomously.
2. Where a Party is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, that Party shall afford the other Party adequate opportunity, upon request to negotiate its accession to such an agreement or arrangement, or to negotiate a comparable agreement or arrangement with it. Where Party accords recognition autonomously, it shall afford adequate opportunity for the other 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. After the entry into force of this Agreement, the Parties shall encourage their relevant authorities or professional bodies in the service sectors such as accounting and auditing, architecture, medical (doctors), dental and nursing to negotiate and conclude, within twelve months or a reasonable period of time from the date of entry into force of this Agreement, any such agreements or arrangements providing mutual recognition of the education or experience obtained, qualification requirements and procedures and licensing requirements and procedures. Any delay or failure by these professional bodies to reach and conclude agreement on details of such agreement or arrangements shall not be regarded as a breach of a Party's obligation under this paragraph and shall not be subject to Chapter 14 (Dispute Settlement). Progress in this regard will be continuously reviewed by the Parties.
4. In respect of regulated service sectors, other than those mentioned in paragraph 3 above, upon a request being made in writing by a Party to the other Party in such sector, the Parties shall encourage that their respective professional bodies negotiate, in that service sector, agreements for mutual recognition of education, or experience obtained, qualifications requirements and procedures, and licensing requirements and procedures in that service sector, with a view to the achievement of early outcomes. The Parties shall report periodically to the Joint Committee on progress and on impediments experienced.
Article 8.11. 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 Schedule of 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 Schedule of 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 paragraphs 1 or 2 above, it may request that Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 8.12. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 8.11 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. A Party shall, at the request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its domestic law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 8.13. Safeguard Measures
1. The Parties note that multilateral negotiations pursuant to Article X of GATS on the question of emergency safeguard measures are based on the principles 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 the multilateral negotiations.
2. In the event that the implementation of this Agreement causes substantial adverse impact to a service sector of a Party before the conclusion of the multilateral negotiations referred to in paragraph 1, the affected Party may request for consultations with the other Party for the purposes of discussing any measure with respect to the affected service sector. Any measure taken pursuant to this paragraph, including the duration for which the measure shall apply, shall be mutually agreed by the Parties concerned. The Parties concerned shall take into account the circumstances of the particular case and give sympathetic consideration to the Party seeking to take a measure.
Article 8.14. Subsidies
1. Notwithstanding Article 8.1 (Scope and Coverage), 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 Chapter.
2. The Parties recognise that, in certain circumstances, subsidies or grants may have distortive effects on trade in services. Any Party which considers that it is adversely affected by a subsidy or grants of the other Party may request consultations with that Party on such matters. Such request shall be accorded sympathetic consideration.
3. The provisions of Chapter 14 (Dispute Settlement) shall not apply to any requests made or consultations held under the provisions of this Article or to any disputes that may arise between the Parties out of, or under, the provisions of this Article.
Article 8.15. Payments and Transfers
1. Except under the circumstances envisaged in Article 12.4 (Measures to Safeguard the Balance of Payments) 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 Fund, 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 12.4 (Measures to Safeguard the Balance of Payments) or at the request of the Fund.
Article 8.16. Denial of Benefits
1. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter:
(a) to the supply of a service, if it establishes that the service is supplied from or in the territory of a country that is not a Party to this Agreement;
(b) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(i) by a vessel registered under the laws of a non-Party; and
(ii) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party;
(c) to the supply of a service from or in the territory of the other Party, if the Party establishes that the service is supplied by a service supplier that is owned or controlled by a person of a non-Party and the denying Party:
(i) does not maintain diplomatic relations with the non-Party; or
(ii) adopts or maintains measures with respect to the non-Party that prohibit transactions with the juridical person, or through other forms of commercial presence such as a branch or representative office that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person or through other forms of commercial presence such as a branch or representative office.
Article 8.17. Affirmation of GATS Annex on Financial Services
The Parties reaffirm their rights and obligations with respect to each other under the GATS Annex on Financial Services.
Article 8.18. Implementation
The Sub-Committee on Trade in Services established under Article 15.2 (Sub- Committees) shall consider matters relating to the implementation of this Chapter.
Chapter 9. MOVEMENT OF NATURAL PERSONS
Article 9.1. Objectives
The objectives of this Chapter are:
(a) to provide for rights and obligations additional to those set out in Chapters 8 (Trade in Services) and 10 (Investment) in relation to the movement of natural persons between the Parties while recognizing the need to ensure border security;
(b) to enhance and facilitate the movement of natural persons engaged in the conduct of trade in services, goods and investment between the Parties; and
(c) to establish simplified streamlined and transparent procedures for immigration formalities for the temporary entry of natural persons to whom this Chapter applies.
Article 9.2. Scope
1. This Chapter applies to measures affecting the temporary movement of natural persons of a Party into the territory of the other Party, where such natural persons are:
(a) business visitor;
(b) intra-corporate transferee;
(c) installer and servicer;
(d) contractual service supplier;
(e) independent professional.
2. This Chapter shall not apply to measures pertaining to citizenship, permanent residence, or employment on a permanent basis.
3. Nothing contained in this Chapter shall prevent a Party from applying measures to regulate the temporary entry or 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 unduly impair the benefits accruing to the other Party or delay trade in goods, services or conduct of investment activities under this Agreement. The sole fact of requiring a visa or other relevant document authorizing employment to a natural person, shall not be regarded as unduly impairing or delaying trade in goods or service or conduct of investment activities under this Agreement.
Article 9.3. Definitions
For the purposes of this Chapter, the following definitions shall apply:
(a) natural person of a Party means a natural person who resides in the territory of a Party or elsewhere, and who under the law of that Party:
(i) is a citizen of that Party; or
(ii) has the right of permanent residence in that Party, provided that such Party accords substantially the same treatment to its permanent residents as it does to its citizens in respect of measures affecting trade in services. The other Party is not obligated to accord to such permanent residents treatment more favourable than would be accorded by a Party to such permanent residents;
(b) immigration formality or visa:
(i) in respect of Malaysia means a visa, permit, pass or other document or electronic authority granting natural person of one Party the right to enter, reside or work or establish commercial presence in the territory of the other Party;
(ii) in respect of India, immigration visa or visa refers to an employment visa or business visa or other document issued by a Party granting a natural person of the other Party the right to enter, reside or work or remain or establish commercial presence in the territory of the granting party, without the intent to reside permanently;
(c) temporary entry means entry by a business visitor, an intra-corporate transferee, or a professional, installer and servicer, contractual service supplier and spouses or dependants covered by this Chapter without the intent to establish permanent residence;
(d) business visitor means a natural person of either Party who is:
(i) a service seller being a natural person who is a 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 direct sales to the general public or in supplying services directly;
(ii) 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, or to enter into a distribution or retailing arrangement where such negotiations do not involve direct sales to the general public; or
(iii) an investor of a Party, as defined in Chapter 10 (Investment), seeking temporary entry into the territory of the other Party to establish an investment and a natural person employed or otherwise engaged by an investor of the first mentioned Party in respect of an investment of that investor in the territory of the other Party;
(e) intra-corporate transferee means:
(i) in respect of Malaysia:
(AA) senior manager being person within an organization that provides services within Malaysia:
(1) having proprietary information of the organization;
(2) exercise wide latitude in decision making relating to the establishment, control and operation of the organization;
(3) primarily direct the management of the organization; and
(4) receive only general supervision or direction from the board of directors or partners of the organization;
(BB) specialists or experts being person within the organization who possess knowledge at an advanced level of continued expertise and who possess proprietary knowledge of the organizationâs new service products and technology, research equipment and techniques or management,
provided that such persons are employees of the foreign service supplier and have been in the employment of that foreign service supplier for a period of not less than one year immediately preceding the date of their application for a work permit and he is to serve in at least a similar capacity.
(ii) in respect of India:
an employee of a juridical person of a Party as defined in Chapter 8 (Trade in Services), or of an investor of a Party or enterprise of a Party as defined in the Chapter 10 (Investment) established in the territory of the other Party (such juridical person or investor or enterprise, as the case may be referred to below as an organization), who is being transferred temporarily to a branch or a representative office or an affiliate or subsidiary of the said juridical person or investor or enterprise in the other Party, and who has been so employed by the relevant organization for the period of not less than one year immediately preceding the date of the application for the temporary entry and who is a manager, executive or specialist as defined below:
(AA) manager means a natural person within an organization who primarily directs the organization or a department or sub-division 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;
(BB) 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;
(CC) specialist means a natural person within an organization who possesses knowledge at an advanced level of expertise and who possesses relevant knowledge of the organizationâs service, research, equipment, techniques or management. (A specialist may include, but is not limited to, members of a licensed profession);
(f) installer or servicer means persons who are installer or servicer of machinery and/or equipment who is employed or appointed by a supplying company, where such installation and/or servicing by the supplying company is a condition of purchase of the said machinery and/or equipment, and are not performing activities which are not related to the installing or servicing activities which is the subject of the contract, and receives his or her remuneration from the supplying company;
(g) contractual service supplier means natural persons of a Party who:
(i) is an employee of a juridical person of the Party, who enters the territory of the other Party temporarily in order to perform a service pursuant to a contract between his or her employer and a person in the territory of the other Party;
(ii) is employed by a juridical person, of the Party, which has no commercial presence in the territory of the other Party where the service is to be provided;
(iii) receives his or her remuneration from that juridical person;
(iv) possesses appropriate educational and professional qualifications relevant to the service to be provided and has obtained, wherever necessary registration with the relevant professional body or regulator; and
(v) may not engage in other employment in the territory of the other Party where the service is being provided.
The service contract pursuant to which the natural person seeks to travel as a contractual service supplier has to be obtained in any one of the sectors or professions listed in the Horizontal Section of the Schedule of Specific Commitments;
(h) independent professional means a self-employed natural person of one Party who seeks to travel to the other Party temporarily, in order to perform a service pursuant to a contract with a person of the other Party, for which that natural person possesses appropriate educational and other qualifications relevant to the service to be provided, and has obtained wherever required, registration or license from the relevant professional body or regulator. The service contract pursuant to which the natural person seeks to travel as an independent professional has to be obtained in any one of the sectors or professions listed in the Horizontal Section of the Schedule of Specific Commitments and remuneration under such service contract should be payable directly to such natural person.
Article 9.4. Grant of Temporary Entry
1. Each Party shall, in accordance with this Chapter, grant temporary entry or extension of temporary stay to natural persons of the other Party, provided such persons are otherwise qualified for entry under applicable measures relating to public health and safety and national security. The conditions governing the temporary entry of natural persons including the duration of stay is inscribed in Annex 9-1.
2. Any fees imposed in respect of the processing of such applications for temporary stay or extension of temporary entry shall be reasonable and in accordance with domestic laws and regulations.
Article 9.5. Spouses and Dependents
For natural persons of a Party who have been granted the right to long term temporary entry and have been allowed to bring in their spouses and dependents, a Party shall, upon application and in accordance with that Party's domestic laws and regulation, and relevant licensing, administrative and registration requirements grant the accompanying spouses and dependents of such natural persons of the other Party, the right to work. The Parties agree that a natural person shall not be barred from working solely on the ground that he or she is a spouse or dependent of a natural person already employed in the other Party.
Article 9.6. Regulatory Transparency
1. Each Party shall publish or otherwise make publicly available explanatory material on all relevant visa formalities which pertain to or affect the operation of this Chapter.
2. Each Party shall maintain or establish contact points to respond to inquiries from interested persons regarding regulations affecting the temporary entry of natural persons. These contact points shall also be the authorized points allowing business persons to report and seek clarifications, if any, on instances where they have encountered special difficulties in the process of seeking temporary entry in the other Party.
3. To the extent possible, each Party shall allow reasonable time between publication of final regulations affecting the temporary entry of natural persons and their effective date, and such notification to the other Party can be made electronically available.
Article 9.7. Procedures and Notification of Outcome
1. Each Party shall process expeditiously completed applications for temporary entry of natural persons of the other Party including requests for further extension of visas and permits, as applicable.
2. Each Party shall, at the request of the applicant, provide without undue delay, information concerning the status of the application. Each Party shall notify the applicant for temporary entry, either directly or through his or her prospective employers, of the outcome of the final determination, including period of stay and other conditions. In the case of an incomplete application, the Party shall notify the applicant of all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies.
3. If an application is terminated or denied, each Party shall, 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. Each Party shall maintain or institute as soon as practicable procedures which provide, at the request of an affected applicant for temporary entry, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting such temporary entry.
Article 9.8. Consultations
A Party may request a consultation with the other Party regarding any matter arising under this Chapter. The other Party shall give sympathetic consideration to the request and shall endeavour to favourably resolve any specific or general problems which may arise from the implementation and administration of this Chapter.
Article 9.9. Dispute Settlement
1. A Party may not initiate proceedings under Chapter 14 (Dispute Settlement) regarding a refusal to grant temporary entry under this chapter unless:
(a) the matter involves a breach of any of the provisions relating to the grant of temporary entry accruing under this Chapter;
(b) the matter involves a pattern of practice; and
(c) that Party's natural persons affected by the pattern of practice have exhausted the available domestic administrative remedies.
Article 9.10. Reservations
The commitments made by each Party under this Chapter shall be subject to any terms, conditions, reservations or limitations it has scheduled in its Schedule of Specific Commitments under Chapter 8 (Trade in Services).
Article 9.11. Implementation
The Sub-Committee on Trade in Services established under Article 15.2 (Sub- Committees) shall consider matters relating to the implementation of this Chapter.
Chapter 10. Investment
Article 10.1. Scope of Application
1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and
(b) investments of investors of the other Party in the territory of the former Party.
2. This Chapter shall not apply to:
(a) any taxation measure, except under Article 10.8 (Transfers), unless otherwise provided;
(b) government procurement;
(c) subsidies or grants provided by a Party; and