(ii) custodial services and execution services that are not related to managing a collective investment scheme.
2. Paragraph 1 is subject to Article 11.6.3 (Cross-Border Trade). 3. For the purposes of paragraph 1, collective investment scheme means:
(a) For Australia, a "managed investment scheme" as defined under section 9 of the Corporations Act 2001 (Cth), other than a managed investment scheme operated in contravention of subsection 601ED (5) of the Corporations Act 2001 (Cth), or an entity that:
(i) carries on a business of investment in securities, interests in land, or other investments; and
(ii) in the course of carrying on that business, invests funds subscribed, whether directly or indirectly, after an offer or invitation to the public (within the meaning of section 82 of the Corporations Act 2001 (Cth)) made on terms that the funds subscribed would be invested.
(b) For Brunei Darussalam:
(i) A "collective investment scheme", defined under Section 203, of the Securities Market Order, 2013 as any investment arrangements with respect to assets of any description, including money, the purpose or effect of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of it or otherwise) to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the property or sums paid out of such profits or income.
(ii) The arrangements must be such that:
(A) the persons who are to participate (participants) do not have day-to-day control over the management of the property, whether or not they have the right to be consulted or to give directions;
(B) the arrangements must also have either or both of the following characteristics:
(1) the contributions of the participants and the profits or income out of which payments are to be made to them are pooled; and
(2) the property is managed as a whole, by or on behalf of the operator of the collective investment scheme; and
(C) the arrangements must satisfy the condition set out in subparagraph (iii).
(iii) The condition referred to in subparagraph (ii)(B) is that the property belongs beneficially to, and is managed by or on behalf of, a company, the trustee of a trust or some other entity or arrangement having as its purpose the investment of its funds with the aim of spreading the investment risk and giving its members the benefit of the results of the management of those funds for or on behalf of that company, trust, entity or arrangement.
(c) For Canada, an "investment fund" as defined under the relevant Securities Act (29)
(d) For Chile, a "General Management Fund" (Administradora General de Fondos) as defined in Law 20.712 which is subject to supervision by the Superintendence of Securities and Insurance (Superintendencia de Valores y Seguros), excluding the provision of custodial services that are related to managing a collective investment scheme.
(e) For Japan, a "financial instruments business operator" engaged in investment management business under the Financial Instruments and Exchange Law (Law No. 25 of 1948).
(f) For Malaysia, any arrangement where:
(i) the investment is made for the purpose, or having the effect, of providing facilities for persons to participate in or receive profits or income arising from the acquisition, holding, management or disposal of securities, futures contracts or any other property (referred to as "scheme's assets") or sums paid out of such profits or income;
(ii) the persons who participate in the arrangements do not have day-to-day control over the management of the scheme's assets; and
(iii) the scheme's assets are managed by an entity that is responsible for the management of the scheme's assets and is approved, authorised or licensed by a relevant regulator to conduct fund management activities,
and includes, among others, unit trust funds, real estate investment trusts, exchange-traded funds, restricted investment schemes and closed-end funds.
(g) For Mexico, the "Managing Companies of Investment Funds" established under the Investment Funds Law (Ley de Fondos de Inversion). A financial institution organised in the territory of another Party will only be authorised to provide portfolio management services to a collective investment scheme located in Mexico if it provides the same services in the territory of the Party where it is established.
(h) For New Zealand, a "registered scheme" as defined under the Financial Markets Conduct Act 2013.(30)
(i) For Peru:
(i) mutual funds for investments and securities, pursuant to Single Ordered Text approved by Supreme Decree N° 093- 2002-EF (Texto Unico Ordenado de la Ley de Mercado de Valores aprobado mediante Decreto Supremo N° 093- 2002-EF); or
(ii) investment funds, pursuant to Legislative Decree N° 862 (Decreto Legislativo N° 862, Ley de Fondos de Inversion y sus Sociedades Administradoras).
(j) For Singapore, a "collective investment scheme" as defined under the Securities and Futures Act (Cap. 289), and includes the manager of the scheme, provided that the financial institution in paragraph 1 is authorised or regulated as a fund manager in the territory of the Party it is organised in and is not a trust company.
(k) For the United States, an investment company registered with the Securities and Exchange Commission under the Investment Company Act of 1940. (31)
(l) For Viet Nam, a fund management company established and operated under the Securities Law of Viet Nam, and subject to regulation and supervision by the State Securities Commission of Viet Nam, in case the services in paragraph 1 are provided to manage an investment fund which invests in the assets located outside Viet Nam.
Section B. Transfer of Information
Each Party shall allow a financial institution of another Party to transfer information in electronic or other form, into and out of its territory, for data processing if such processing is required in the institution's ordinary course of business. Nothing in this Section restricts the right of a Party to adopt or maintain measures to:
(a) protect personal data, personal privacy and the confidentiality of individual records and accounts; or
(b) require a financial institution to obtain prior authorisation from the relevant regulator to designate a particular enterprise as a recipient of such information, based on prudential considerations, (32)
provided that this right is not used as a means of avoiding the Party's commitments or obligations under this Section.
Section C. Supply of Insurance by Postal Insurance Entities
1. This Section sets out additional disciplines that apply if a Party allows its postal insurance entity to underwrite and supply direct insurance services to the general public. The services covered by this paragraph do not include the supply of insurance related to the collection, transport and delivery of letters or packages by a Party's postal insurance entity.
2. No Party shall adopt or maintain a measure that creates conditions of competition that are more favourable to a postal insurance entity with respect to the supply of insurance services described in paragraph 1 as compared to a private supplier of like insurance services in its market, including by:
(a) imposing more onerous conditions on a private supplier's licence to supply insurance services than the conditions the Party imposes on a postal insurance entity to supply like services; or
(b) making a distribution channel for the sale of insurance services available to a postal insurance entity under terms and conditions more favourable than those it applies to private suppliers of like services.
3. With respect to the supply of insurance services described in paragraph 1 by a postal insurance entity, a Party shall apply the same regulations and enforcement activities that it applies to the supply of like insurance services by private suppliers.
4. In implementing its obligations under paragraph 3, a Party shall require a postal insurance entity that supplies insurance services described in paragraph 1 to publish an annual financial statement with respect to the supply of those services.
The statement shall provide the level of detail and meet the auditing standards required under the generally accepted accounting and auditing principles, or equivalent rules, applied in the Partyâs territory with respect to publicly traded private enterprises that supply like services.
5. If a panel under Chapter 28 (Dispute Settlement) finds that a Party is maintaining a measure that is inconsistent with any of the commitments in paragraphs 2, 3 and 4, the Party shall notify the complaining Party and provide an opportunity for consultations prior to allowing the postal insurance entity to:
(a) issue a new insurance product, or modify an existing product in a manner equivalent to the creation of a new product, in competition with like insurance products supplied by a private supplier in the Party's market; or
(b) increase any limitation on the value of insurance, either in total or with regard to any type of insurance product, that the entity may sell to a single policyholder.
6. This Section shall not apply to a postal insurance entity in the territory of a Party:
(a) that the Party neither owns nor controls, directly or indirectly, as long as the Party does not maintain any advantages that modify the conditions of competition in favour of the postal insurance entity in the supply of insurance services as compared to a private supplier of like insurance services in its market; or
(b) if sales of direct life and non-life insurance underwritten by the postal insurance entity each account for no more than 10 per cent, respectively, of total annual premium income from direct life and non-life insurance in the Party's market as of January 1, 2013.
7. If a postal insurance entity in the territory of a Party exceeds the percentage threshold referred to in paragraph 6(b) after the date of signature of this Agreement by the Party, the Party shall ensure that the postal insurance entity is:
(a) regulated and subject to enforcement by the same authorities that regulate and conduct enforcement activities with respect to the supply of insurance services by private suppliers; and
(b) subject to the financial reporting requirements that apply to financial institutions supplying insurance services.
8. For the purposes of this Section, postal insurance entity means an entity that underwrites and sells insurance to the general public and that is owned or controlled, directly or indirectly, by a postal entity of the Party.
Section D. Electronic Payment Card Services
1. A Party shall allow the supply of electronic payment services for payment card transactions (33) into its territory from the territory of another Party by a person of that other Party. A Party may condition the cross-border supply of such electronic payment services on one or more of these requirements that a services supplier of another Party:
(a) register with or be authorised (34) by relevant authorities;
(b) be asupplier who supplies such services in the territory of the other Party; or
(c) designate an agent office or maintain a representative or sales office in the Party's territory,
provided that such requirements are not used as a means to avoid a Party's obligation under this Section.
2. For the purposes of this Section, electronic payment services for payment card transactions does not include the transfer of funds to and from transactors' accounts. Furthermore, electronic payment services for payment card transactions include only those payment network services that use proprietary networks to process payment transactions. These services are provided on a business to business basis.
3. Nothing in this Section shall be construed to prevent a Party from adopting or maintaining measures for public policy purposes, provided that these measures are not used as a means to avoid the Party's obligation under this Section. For greater certainty, such measures may include:
(a) measures to protect personal data, personal privacy and the confidentiality of individual records, transactions and accounts, such as restricting the collection by, or transfer to, the cross-border services supplier of another Party, of information concerning cardholder names;
(b) the regulation of fees, such as interchange or switching fees; and
(c) the imposition of fees as may be determined by a Party's authority, such as those to cover the costs associated with supervision or regulation or to facilitate the development of the Party's payment system infrastructure.
4. For the purposes of this Section, payment card means:
(a) For Australia, a credit card, charge card, debit card, cheque card, automated teller machine (ATM) card, prepaid card, and other physical or electronic products or services for performing a similar function as such cards, and the unique account number associated with that card, product or service.
(b) For Brunei Darussalam, in accordance with its laws and regulations, a payment instrument, whether in physical or electronic format, that enables a person to obtain money, goods or services, or to otherwise make payment, including credit card, charge card, debit card, cheque, automated teller machine (ATM) card, prepaid card or other instruments widely used for performing a similar function.
(c) For Canada, a "payment card" as defined under the Payment Card Networks Act as of January 1, 2015. For greater certainty, both the physical and electronic forms of credit and debit cards are included in the definition. For greater certainty, credit cards include pre-paid cards.
(d) For Chile, a credit card, a debit card and a prepaid card in physical form or electronic format, as defined under Chilean law.
(i) In respect of such payment cards, in lieu of the scope of the cross-border electronic payment services referred to in this commitment, only the following cross-border financial services may be supplied:
(A) receiving and sending messages among acquirers and issuers or their agents and representatives through electronic or informatic channels for: authorisation requests, authorisation responses (approvals or declines), stand-in authorisations, adjustments, refunds, returns, retrievals, charge backs and related administrative messages;
(B) calculation of fees and balances derived from transactions of acquirers and issuers by means of automated or computerised systems, and receiving and sending messages related to this process to acquirers and issuers, and their agents and representatives, provided that those calculations are subject to approval, recognition or confirmation by the acquiring and issuing parties involved;
(C) the provision of periodic reconciliation, summaries and instructions regarding the net financial position of acquirers and issuers, and their agents and representatives for approved transactions; and
(D) value-added services related to the main processing activities in subparagraphs (d)(i)(A), (d)(i)(B) and (d)(i(C), such as fraud prevention and mitigation activities, and administration of loyalty programmes.
Such cross-border financial services may only be supplied by a service supplier of another Party into the territory of Chile pursuant to this commitment, provided that such services are supplied to entities that are regulated by Chile in connection with their participation in card payment networks and that are contractually responsible for such services.
(ii) Nothing in this commitment restricts the right of Chile to adopt or maintain measures, in addition to all other measures set forth in this Section, that condition the cross-border supply of such electronic payment services into Chile by a service supplier of another Party on a contractual relationship between that supplier and an affiliate of the supplier established, authorised and regulated as a payments network participant under Chilean law in the territory of Chile, provided that such right is not used as a means of avoiding Chile's commitments or obligations under this Section.
(e) For Japan:
(i) a credit card and a prepaid card in physical or electronic form as defined under the laws and regulations of Japan; and
(ii) a debit card in physical or electronic form, provided that such a card is allowed within the framework of the laws and regulations of Japan.
(f) For Malaysia, a credit card, a debit card and a prepaid card as defined under Malaysian law.
(g) For Mexico, a credit card and a debit card in physical form or electronic format, as defined under Mexican law.
(i) In respect of such payment cards, in lieu of the scope of the cross-border electronic payment services set forth in paragraph 1, only the following cross-border services may be supplied:
(A) receiving and sending messages for: authorisation requests, authorisation responses (approvals or declines), stand-in authorisations, adjustments, refunds, returns, retrievals, charge backs and related administrative messages;
(B) calculation of fees and balances derived from transactions of acquirers and issuers, and receiving and sending messages related to this process to acquirers and issuers, and their agents and representatives;
(C) the provision of periodic reconciliation, summaries and instructions regarding the net financial position of acquirers and issuers, and their agents and representatives for approved transactions; and
(D) value-added services related to the main processing activities in subparagraphs (g)(i)(A), (g)(i)(B) and (g)(i)(C), such as fraud prevention and mitigation activities, and administration of loyalty programmes.
(ii) Such cross-border services may only be supplied by a service provider of another Party into the territory of Mexico pursuant to this commitment, provided that the services are supplied to entities that are regulated by Mexico in connection with their participation in card payment networks and that are responsible for such services.
(iii) Nothing in this commitment restricts the right of Mexico to adopt or maintain measures, in addition to all other measures set forth in this Section, that condition the cross- border supply of such electronic payment services into Mexico by a service supplier of another Party on a contractual relationship between that supplier and an affiliate of the supplier established and authorised as a payments network participant under Mexican law in the territory of Mexico, provided that such right is not used as a means of avoiding Mexico's commitments or obligations under this Section.
(h) For New Zealand, a credit or debit card in physical or electronic form.
(i) For Peru:
(i) credit and debit cards as defined under Peruvian laws and regulations; and
(ii) prepaid cards, as defined under Peruvian laws and regulations, that are issued by financial institutions.
(j) For Singapore:
(i) a credit card as defined in the Banking Act (Cap. 19), a charge card as defined in the Banking Act and a stored value facility as defined in the Payment Systems (Oversight) Act (Cap. 222A); and
(ii) a debit card and an automated teller machine (ATM) card.
For greater certainty, both the physical and electronic forms of the cards or facility as listed in subparagraphs (j)(i) and (j)(ii) above would be included as a payment card.
(k) For the United States, a credit card, charge card, debit card, cheque card, automated teller machine (ATM) card, prepaid card, and other physical or electronic products or services for performing a similar function as such cards, and the unique account number associated with that card, product or service.
(l) For Viet Nam, a credit card, debit card or prepaid card, in physical form or electronic format, as defined under the laws and regulations of Viet Nam for cards issued inside or outside the territory of Viet Nam using an international Issuer Identification Number or Bank Identification Number (international IIN or BIN).(35)
(i) Viet Nam shall allow the issuance of such cards using international IIN or BIN subject to conditions that are no more restrictive than the conditions applied to the issuance of such cards not using international IIN or BIN.
(ii) For greater certainty, nothing in this commitment restricts the right of Viet Nam to adopt or maintain measures, in addition to the measures set out in this Section, that condition the cross-border supply of such electronic payment services into Viet Nam by a service supplier of another Party on the provision of information and data to the Government of Viet Nam, for public policy purposes, regarding transactions that the supplier processes, provided that such measures are not used as a means of avoiding Viet Nam's obligation under this Section.
Section E. Transparency Considerations
In developing a new regulation of general application to which this Chapter applies, a Party may consider, in a manner consistent with its laws and regulations, comments regarding how the proposed regulation may affect the operations of financial institutions, including financial institutions of the Party or other Parties. These comments may include:
(a) submissions to a Party by another Party regarding its regulatory measures that are related to the objectives of the proposed regulation; or
(b) submissions to a Party by interested persons, including other Parties or financial institutions of other Parties, with regard to the potential effects of the proposed regulation.
ANNEX 11-C . NON-CONFORMING MEASURES RATCHET MECHANISM
Notwithstanding Article 11.10.1(c) (Non-Conforming Measures), for Viet Nam for three years after the date of entry into force of this Agreement for it:
(a) Article 11.3 (National Treatment), Article 11.4 (Most-Favoured- Nation Treatment), Article 11.5 (Market Access for Financial Institutions) and Article 11.9 (Senior Management and Boards of Directors) shall not apply to an amendment to any non-conforming measure referred to in Article 11.10.1(a) (Non-Conforming Measures) to the extent that the amendment does not decrease the conformity of the measure, as it existed at the time of entry into force of this Agreement for Viet Nam, with Article 11.3 (National Treatment), Article 11.4 (Most-Favoured-Nation Treatment), Article 11.5 (Market Access for Financial Institutions) and Article 11.9 (Senior Management and Boards of Directors);
(b) Viet Nam shall not withdraw a right or benefit from: 6D) a financial institution of another Party;
(i) investors of another Party, and investments of such investors, in financial institutions in Viet Nam's territory; or
(ii) cross-border financial service suppliers of another Party,
in reliance on which the investor or covered investment has taken any concrete action, (36) through an amendment to any non-conforming measure referred to in Article 11.10.1(a) (Non- Conforming Measures) that decreases the conformity of the measure as it existed immediately before the amendment; and
(c) Viet Nam shall provide to the other Parties the details of any amendment to any non-conforming measure referred to in Article 11.10.1(a) (Non-Conforming Measures) that would decrease the conformity of the measure, as it existed immediately before the amendment, at least 90 days before making the amendment.
ANNEX 11-D . AUTHORITIES RESPONSIBLE FOR FINANCIAL SERVICES
The authorities for each Party responsible for financial services are:
(a) for Australia, the Treasury and the Department of Foreign Affairs and Trade;
(b) for Brunei Darussalam, the Monetary Authority of Brunei Darussalam (Autoriti Monetari Brunei Darussalam);
(c) for Canada, the Department of Finance of Canada;
(d) for Chile, the Ministry of Finance (Ministerio de Hacienda);
(e) for Japan, the Ministry of Foreign Affairs and the Financial Services Agency, or their successors;
(f) for Malaysia, Bank Negara Malaysia and the Securities Commission Malaysia;
(g) for Mexico, the Ministry of Finance and Public Credit (Secretaria de Hacienda y Crédito Publico);
(h) for New Zealand, the Ministry of Foreign Affairs and Trade, in coordination with financial services regulators;
(i) for Peru, the Ministry of Economy and Finance (Ministerio de Economia y Finanzas), in coordination with financial regulators;
(j) for Singapore, the Monetary Authority of Singapore;
(k) for United States, the Department of the Treasury for purposes of Article 11.22 (Investment Disputes in Financial Services) and for all matters involving banking, securities, and financial services other than insurance, the Department of the Treasury, in cooperation with the Office of the U.S. Trade Representative, for insurance matters; and
(l) for Viet Nam, the State Bank of Viet Nam and the Ministry of Finance.
ANNEX 11-E .
1. Brunei Darussalam, Chile, Mexico and Peru do not consent to the submission of a claim to arbitration under Section B of Chapter 9 (Investment) for a breach of Article 9.6 (Minimum Standard of Treatment), as incorporated into this Chapter, in relation to any act or fact that took place or any situation that ceased to exist before:
(a) the fifth anniversary of the date of entry into force of this Agreement for Brunei Darussalam, Chile and Peru, respectively; and
(b) the seventh anniversary of the date of entry into force of this Agreement for Mexico.
2. If an investor of a Party submits a claim to arbitration under Section B of Chapter 9 (Investment) that Brunei Darussalam, Chile, Mexico or Peru has breached Article 9.6 (Minimum Standard of Treatment), as incorporated into this Chapter, it may not recover for loss or damage that it incurred before:
(a) the fifth anniversary of the date of entry into force of this Agreement for Brunei Darussalam, Chile and Peru, respectively; and
(b) the seventh anniversary of the date of entry into force of this Agreement for Mexico.
Chapter 12. TEMPORARY ENTRY FOR BUSINESS PERSONS
Article 12.1. Definitions
For the purposes of this Chapter:
Business Person means:
(a) a natural person who has the nationality of a Party according to Annex 1-A (Party-Specific Definitions); or
(b) a permanent resident of a Party that, prior to the date of entry into force of this Agreement, has made a notification consistent with Article XXVIII(9)(i)(2) of GATS that that Party accords substantially the same treatment to its permanent residents as it does to its nationals (1),
who is engaged in trade in goods, the supply of services or the conduct of investment activities;
immigration formality means a visa, permit, pass or other document or electronic authority granting temporary entry;