Australia
Insurance and insurance-related services
1. Article 8.5 shall apply to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of cross-border supply of financial services in Article 8.20 with respect to:(a)
(a) insurance of risks relating to:
(i) maritime shipping and commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability arising therefrom; and
(ii) goods in international transit;
(b) reinsurance and retrocession;
(c) services auxiliary to insurance, such as consultancy, risk assessment, actuarial and claim settlement services; and
(d) insurance intermediation, such as brokerage and agency as referred to in subparagraph (c) of the definition of financial service in Article 8.20 of insurance of risks related to services listed in subparagraphs (a) and (b) of this paragraph.
Banking and other financial services (excluding insurance)
2. Article 8.5.1 shall apply only with respect to:
(a) the provision and transfer of financial information;
(b) the provision and transfer of financial data processing and related software relating to banking and other financial services as referred to in subparagraph (o) of the definition of financial service in Article 8.20; and
(c) advisory and other auxiliary services, excluding intermediation, relating to banking and other financial services as referred to in subparagraph (p) of the definition of financial service in Article 8.20.
Korea
Insurance and insurance-related services
3. Article 8.5.1 shall apply to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of cross-border supply of financial services in Article 8.20 with respect to:
(a) insurance of risks relating to:
(i) maritime shipping and commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability arising therefrom; and
(ii) goods in international transit;
(b) reinsurance and retrocession;
(c) services auxiliary to insurance, such as consultancy, risk assessment, actuarial and claim settlement services; and
(d) insurance intermediation, such as brokerage and agency as referred to in subparagraph (c) of the definition of financial service in Article 8.20 of insurance of risks related to services listed in subparagraphs (a) and (b) of this paragraph.
4. Article 8.5.1 shall apply to the cross-border supply of or trade in financial services as defined in subparagraph (c) of the definition of cross-border supply of financial services in Article 8.20 with respect to services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.
Banking and other financial services (excluding insurance)
5. Article 8.5.1 shall apply only with respect to:
(a) the provision and transfer of financial information;
(b) the provision and transfer of financial data processing and related software relating to banking and other financial services as referred to in subparagraph (o) of the definition of financial service in Article 8.20, by no later than two years from the date of entry into force of this Agreement; and
(c) advisory and other auxiliary services, excluding intermediation, relating to banking and other financial services as referred to in subparagraph (p) of the definition of financial service in Article 8.20. This commitment applies to the supply of credit rating, credit reference and investigation, general fund administration, indirect investment vehicle appraisal, and bond appraisal with regard to securities issued in Korea only to the extent that Korea allows the supply of these services with respect to such assets. This commitment does not apply to:
(i) credit rating of enterprises in Korea; or
(ii) credit reference and investigation undertaken for purposes of lending and other financial transactions in Korea with respect to individuals or companies in Korea.
ANNEX 8-B. Specific commitments
Section A. Transfer of Information
1. Each Party shall allow a financial institution of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing where such processing is required in the institution's ordinary course of business. Korea shall give effect to this commitment no later than two years after the date of entry into force of this Agreement, and in no case later than the effective date of similar commitments stemming from other international trade agreements.
2. Nothing in paragraph 1 shall restrict the right of a Party to protect sensitive information of consumers and to prohibit unauthorised reuse of such information so long as such right is not used as a means of avoiding the Party's commitments or obligations under this Agreement. The Parties reserve the right of their financial regulators to have access to records of financial services suppliers relating to the handling of such information and to require for the location of technology facilities.
Section B. Performance of Functions
1. The Parties recognise the benefits of allowing a financial institution in a Party's territory to perform certain functions at its head office or affiliates located inside or outside the Party's territory. To the extent possible, each Party shall allow such an office or affiliate to perform these functions. These functions generally include, but are not limited to:
(a) trade and transaction processing functions, including confirmation and statement production;
(b) technology-related functions, such as data processing, programming, and system development;
(c) administrative services, including procurement, travel arrangements, mailing services, physical security, office space management, and secretarial services;
(d) human resource activities, including training and education;
(e) accounting functions, including bank reconciliation, budgeting, payroll, tax, account reconciliation, and customer and proprietary accounting; and
(f) legal functions, including the provision of advice and litigation strategy.
2. Nothing in paragraph 1 shall prevent a Party from requiring a financial institution located in its territory to retain certain functions.
Section C. Supervisory Cooperation
The Parties support the efforts of their respective financial regulators to provide assistance to the regulators of the other Party to enhance consumer protection and those regulators' ability to prevent, detect, and prosecute unfair and deceptive practices. Each Party confirms that its financial regulators have the legal authority to exchange information in support of those efforts. The Parties shall encourage financial regulators to continue their ongoing efforts to strengthen this cooperation through bilateral consultations or bilateral or multilateral international cooperative mechanisms, such as memoranda of understanding or ad hoc undertakings.
Section D. Certain Government Entities
The Parties confirm that the following entities shall not be considered financial institutions for the purposes of this Chapter: the Korea Deposit Insurance Corporation (KDIC); Export-Import Bank of Korea; Korea Trade Insurance Corporation; Korea Technology Credit Guarantee Fund; Credit Guarantee Fund; Korea Asset Management Corporation (KAMCO); Korea Finance Corporation (KoFC); and Korea Investment Corporation (KIC). The Parties further recognise that Korea Post is currently a government agency that is not regulated as a financial institution.
Section E. Cross-border Trade
A Party may require a cross-border financial service supplier of the other Party to provide information, solely for informational or statistical purposes, on the financial services it has supplied within the territory of the Party. The Party shall protect such business information that is confidential from any disclosure that would prejudice the competitive position of the supplier.
Section F. Chief Executive Officer
For greater certainty, nothing in Article 8.8 shall limit a Party's ability to require the chief executive officer of a financial institution established under its laws to reside within its territory.
Section G. Portfolio Management
1. A Party shall allow a financial institution (other than a trust company), organised outside its territory, to provide investment advice and portfolio management services, excluding custodial services, trustee services, and execution services that are not related to managing a collective investment scheme, to a collective investment scheme located in its territory. This commitment is subject to Articles 8.1 and 8.5.3.
2. For the purposes of paragraph 1, with regard to Korean won-denominated assets, the supply of investment advice or portfolio management services applies only to the extent that Korea allows the supply of these services with respect to such assets.
3. For the purposes of paragraph 1, "collective investment scheme" means: (a) for Australia:
(i) a managed investment scheme as defined under section 9 of the Corporations Act 2001, other than a managed investment scheme operated in contravention of subsection 601ED(5) of the Corporations Act 2001; or
(ii) an entity that:
(A) carries on a business of investment in securities, interests in land, or other investments; and
(B) 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) made on terms that the funds subscribed would be invested; and
(b) for Korea, any of the schemes established for making collective investment as defined under articles 9.18.1 through 9.18.6 of the Financial investment Services and Capital Markets Act (FSCMA).
Section H. Government Procurement
1. Notwithstanding Article 8.1.4, each Party shall apply Articles 8.2 and 8.3 with respect to the acquisition or procurement of the following services to the extent this Chapter shall apply to measures adopted or maintained by the Party relating to activities or services set out in Article 8.1.3(a) and (b):
(a) services related to the sale, redemption, and distribution of central government debt;
(b) services related to the holding of central government fiscal and depository accounts; and
(c) services related to the management of the following assets:
(i) for Australia, assets of the Future Fund; and
(ii) for Korea, assets of the Korea Investment Corporation.
Chapter 9. Telecommunications
Article 9.1. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in telecommunications services.
2. Except to ensure that enterprises operating broadcast stations and cable systems have continued access to and use of public telecommunications networks or services, this Chapter shall not apply to any measure relating to broadcast or cable distribution of radio or television programming.
3. Nothing in this Chapter shall be construed to require a Party to compel any enterprise to:
(a) establish, construct, acquire, lease, operate, or provide telecommunications networks or services not offered to the public generally; or
(b) make available its broadcast or cable facilities as a public telecommunications network where the enterprise is exclusively engaged in the broadcast or cable distribution of radio or television programming.
Article 9.2. Relation to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Section A. Access to and Use of Public Telecommunications Networks or Services
Article 9.3. Access and Use
1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders on a timely basis, and on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 6.
2. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) provide services to individual or multiple end-users over owned or leased circuits; (c) connect owned or leased circuits with public telecommunications networks or services in the territory, or across the borders, of that Party, or with circuits leased or owned by another service supplier; (d) perform switching, signalling, processing and conversion functions; and (e) use operating protocols of their choice in the supply of any service.
3. Each Party shall ensure that service suppliers of the other Party may use public telecommunications networks or services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party or any non-Party which is a party to the WTO Agreement. 4, Notwithstanding paragraph 3, a Party may take such measures as are necessary to:
(a) ensure the security and confidentiality of messages; and
(b) protect the privacy of personal data of end-users of public telecommunications networks or services,
provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks or services may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(b) requirements, where necessary, for the inter-operability of such networks or services; and
(c) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks.
Section B. Suppliers of Public Telecommunications Networks or Services
Article 9.4. Obligations Relating to Suppliers of Public Telecommunications Networks or Services
Interconnection
1. Each Party shall ensure that:
(a) suppliers of public telecommunications networks or services in its territory provide, directly or indirectly, interconnection with suppliers of public telecommunications networks or services of the other Party. The rates, terms and conditions of such interconnection will generally be determined through commercial negotiation between the service suppliers concerned, in accordance with the laws and regulations of the Party; and
(b) in carrying out subparagraph (a), suppliers of public telecommunications networks or services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications networks or services and only use such information for the purpose of providing these services.
Number Portability
2. Each Party shall ensure that suppliers of public telecommunications networks or services in its territory provide number portability to the extent technically feasible, on a timely basis, and on terms and conditions that are reasonable and non-discriminatory. Dialling Parity 3. Each Party shall ensure that:
(a) its telecommunications regulatory body has the authority to require that suppliers of public telecommunications services in its territory provide dialling parity within the same category of service to suppliers of public telecommunications services of the other Party; and
(b) suppliers of public telecommunications services of the other Party are afforded non-discriminatory access to telephone numbers.
Section C. Additional Obligations Relating to Major Suppliers of Public Telecommunications Networks or Services
Article 9.5. Treatment by Major Suppliers
Each Party shall ensure that major suppliers in its territory accord suppliers of public telecommunications networks or services of the other Party treatment no less favourable than such major suppliers accord in like circumstances to its subsidiaries, its affiliates, or non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications networks or services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 9.6. Competitive Safeguards
1. Each Party shall maintain appropriate measures for the purposes of preventing suppliers of public telecommunications networks or services that, alone or together, are a major supplier in its territory, from engaging in or continuing anticompetitive practices.
2. The anticompetitive practices referred to in paragraph 1 include, in particular:
(a) engaging in anticompetitive cross-subsidisation;
(b) using information obtained from competitors with anticompetitive results;
(c) not making available, on a timely basis, to suppliers of public telecommunications networks or services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services; and
(d) pricing services in a manner that is likely to unreasonably restrict competition, including predatory pricing.
Article 9.7. Resale
1. Each Party shall ensure that major suppliers in its territory do not impose unreasonable or discriminatory conditions or limitations on the resale of their public telecommunications services by suppliers of public telecommunications services of the other Party, where such conditions or limitations would have anticompetitive results.
2. Where a Party requires a major supplier of public telecommunications services in its territory to offer for resale, to suppliers of public telecommunications services of the other Party, public telecommunications services that such major supplier provides at retail to end-users that are not suppliers of public telecommunications services, it shall ensure that such services are offered for resale at reasonable rates.
Article 9.8. Unbundling of Network Elements
Each Party shall provide its telecommunications regulatory body with the authority to require major suppliers in its territory to provide suppliers of public telecommunications networks or services of the other Party, on a timely basis, access to network elements for the provision of public telecommunications networks or services on an unbundled basis, and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent.
Article 9.9. Interconnection
1. Each Party shall ensure that major suppliers in its territory provide interconnection for the facilities and equipment of suppliers of public telecommunications networks or services of the other Party:
(a) at any technically feasible point in the major supplier's network;
(b) under non-discriminatory terms, conditions (including technical standards and specifications) and rates;
(c) of a quality no less favourable than that provided by the major supplier for its own like services, for like services of non-affiliated service suppliers, or for its subsidiaries or other affiliates;
(d) in a timely fashion, and on terms and conditions (including technical standards and specifications) and at cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the suppliers seeking interconnection need not pay for network components or facilities that they do not require for the service to be provided; and
(e) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that suppliers of public telecommunications networks or services of the other Party may interconnect their facilities and equipment with those of major suppliers in its territory in accordance with at least one of the following options:
(a) a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services;
(b) the terms and conditions of an existing interconnection agreement; or (c) through negotiation of a new interconnection agreement.
3. Each Party shall ensure that applicable procedures for interconnection negotiations with major suppliers in its territory are made publicly available.
4, Each Party shall ensure that major suppliers in its territory may be required to file interconnection agreements with the Party's telecommunications regulatory body.
5. Each Party shall ensure, where interconnection is provided under paragraph 2(a), that the rates, terms and conditions are made publicly available.
Article 9.10. Provisioning and Pricing of Leased Circuit Services
1. Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications networks or services of the other Party leased circuit services that are public telecommunications services in a reasonable period of time, on terms and conditions, and at rates, that are reasonable, non-discriminatory and transparent.
2. In carrying out paragraph 1, each Party shall provide its telecommunications regulatory body with the authority to require major suppliers in its territory to offer leased circuit services that are public telecommunications services to suppliers of public telecommunications networks or services of the other Party at capacity-based, cost-oriented prices.
Article 9.11. Co-location
1. Each Party shall ensure that major suppliers in its territory provide to suppliers of publictelecommunications networks or services of the other Party physical co-location of equipment necessary for interconnection or access to unbundled network elements on a timely basis and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent.
2. Notwithstanding paragraph 1, where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that major suppliers in its territory provide an alternative solution on a timely basis and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent.
3. Each Party may determine, in accordance with its laws and regulations, which premises in its territory are subject to paragraphs 1 and 2.
Article 9.12. Access to Telecommunications Facilities
1. Each Party shall ensure that major suppliers in its territory provide access to poles, ducts, conduits, rights of way and any other structures deemed necessary by the Party, owned or controlled by major suppliers to suppliers of public telecommunications networks or services of the other Party in the Party's territory on a timely basis and on terms and conditions, and at rates, that are reasonable, non-discriminatory and transparent.
2. Each Party may determine in accordance with its laws and regulations the poles, ducts, conduits, rights of way or other structures to which it requires major suppliers in its territory to provide access under paragraph 1.
Section D. Other Measures
Article 9.13. Submarine Cable Systems
Where a supplier of telecommunications networks or services operates a submarine cable system to provide public telecommunications networks or services, the Party in whose territory the supplier is located shall ensure that such supplier accords the suppliers of public telecommunication networks or services of the other Party reasonable and non-discriminatory treatment with respect to access to that submarine cable system (including landing facilities) in its territory.
Article 9.14. Conditions for the Supply of Value-added Services
1. Neither Party shall require a service supplier in its territory that it classifies as a supplier of value-added services and that supplies those services over facilities that the supplier does not own to:
(a) supply those services to the public generally;