(r) “universal service” means the minimum set of services that must be made available to all users in a Party; and
(s) “user” means a service consumer or a service supplier using a public telecommunications network or service.
Article 3.57. Access and Use
1. Each Party shall ensure that any covered enterprise or service supplier of another Party is accorded access to and use of public telecommunications networks or services, including private leased circuits, offered in that Party or across its borders on reasonable and non-discriminatory terms and conditions. This obligation shall be applied, inter alia, to paragraphs 2 to 6.
2. Each Party shall ensure that covered enterprises or service suppliers of another Party are permitted:
(a) to purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to conduct their operations;
(b) to interconnect private leased or owned circuits with public telecommunications networks and services or with circuits leased or owned by another covered enterprise or service supplier; and
(c) to use operating protocols of their choice in their operations, other than as necessary to ensure the availability of public telecommunications services.
3. Each Party shall ensure that covered enterprises or service suppliers of another Party may use public telecommunications networks and services for the movement of information in that Party or across its borders, including for their intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of communications, subject to the requirement that such measures are not applied in a manner which 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 and services other than as necessary:
(a) to safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their services available; or
(b) to 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 and services may include:
(a) restrictions on resale or shared use of such services;
(b) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks and services;
(c) a requirement, if necessary, for the interoperability of such services;
(d) 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;
(e) restrictions on interconnection of private leased or owned circuits with such networks or services or with circuits leased or owned by another service supplier; or
(f) notification, registration and licensing.
Article 3.58. Access to Major Suppliers’ Essential Facilities
Each Party shall ensure that a major supplier in that Party grants access to its essential facilities to suppliers of telecommunications networks or services on reasonable, transparent and non-discriminatory terms and conditions for the purpose of providing public telecommunications services, except when this is not necessary to achieve effective competition on the basis of the facts collected and the assessment of market conditions conducted by the Party’s telecommunications regulatory authority. The major supplier’s essential facilities may include, inter alia, network elements, leased circuit services and associated facilities.
Article 3.59. Interconnection
Each Party shall ensure that a supplier of public telecommunications networks or services has the right and, when requested by another supplier of public telecommunications networks or services, the obligation to negotiate interconnection for the purpose of providing public telecommunications networks or services.
Article 3.60. Interconnection with Major Suppliers
1. Each Party shall ensure that a major supplier of public telecommunications networks or services in that Party provides interconnection:
(a) at any technically feasible point in the major supplier’s network;
(b) under non-discriminatory terms and conditions (including as regards rates, technical standards, specifications, quality and maintenance) and of a quality no less favourable than that provided for the major supplier’s own like services, or for like services of its subsidiaries or other affiliates;
(c) on a timely basis, and on terms, conditions (including technical standards and specifications) and rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier does not need to pay for network components or facilities that it does not require for the service to be provided; and
(d) upon 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 major suppliers in that Party make publicly available, as appropriate:
(a) a reference interconnection offer or other standard interconnection offer containing the rates, terms and conditions that the major supplier offers generally to suppliers of public telecommunications services; or
(b) the terms and conditions of an interconnection agreement in effect.
Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in that Party.
Article 3.61. Number Portability
Each Party shall ensure that suppliers of public telecommunications services provide number portability on a timely basis, without impairment of quality, reliability or convenience, and on reasonable and non-discriminatory terms and conditions.
Article 3.62. Scarce Resources
1. Each Party shall ensure that the allocation and granting of rights of use of scarce resources, including radio spectrum, numbers and rights of way, is carried out in an open, objective, timely, transparent, non-discriminatory and proportionate manner and in pursuit of general interest objectives, including the promotion of competition. Procedures, and conditions and obligations attached to rights of use, shall be based on objective, transparent, non-discriminatory and proportionate criteria.
2. Each Party shall make publicly available the current use of allocated frequency bands, but detailed identification of radio spectrum allocated for specific government uses is not required.
3. Each Party may rely on market-based approaches, such as bidding procedures, to assign spectrum for commercial use.
4. A measure of a Party allocating and assigning spectrum and managing frequency is not per se inconsistent with Article 3.6 (Market Access) of Section 3.2 (Investment Liberalisation) and Article 3.14 (Market Access) of Section 3.3 (Cross-Border Trade in Services). Accordingly, each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of telecommunications services, provided that it does so in a manner consistent with this Agreement. This includes the ability to allocate frequency bands taking into account current and future needs and spectrum availability.
Article 3.63. Competitive Safeguards on Major Suppliers
1. Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks or services that, alone or together, are a major supplier from engaging in or continuing anticompetitive practices.
2. The anticompetitive practices referred to in paragraph 1 include:
(a) engaging in anticompetitive cross-subsidisation;
(b) using information obtained from competitors with anticompetitive results; and
(c) not making available to other services suppliers on a timely basis technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
Article 3.64. Treatment by Major Suppliers
Each Party shall provide its telecommunications regulatory authority with the power to require, if appropriate, that a major supplier in that Party accords suppliers of public telecommunications networks or services of another Party treatment no less favourable than the major supplier accords, in like situations, to its subsidiaries or affiliates regarding:
(a) the availability, provisioning, rates or quality of like telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 3.65. Telecommunications Regulatory Authority
1. Each Party shall ensure that its telecommunications regulatory authority is legally distinct from, and functionally independent to any supplier of telecommunications networks, equipment and services. With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory authority does not hold a financial interest or maintain an operating or management role in any supplier of public telecommunications services, networks or equipment. A Party that retains ownership or control of suppliers of telecommunications networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
2. Each Party shall ensure that regulatory decisions and procedures of its telecommunications regulatory authority or other competent authority are impartial with respect to all market participants.
3. Each Party shall ensure that its telecommunications regulatory authority acts independently and does not seek or take instructions from any other body in relation to the exercise of the tasks assigned to it under the Party’s law to enforce the obligations set out in this Sub-Section concerning obligations relating to that Party’s telecommunications service suppliers. (49)
4. Each Party shall ensure that the telecommunications regulatory authority has the regulatory power, as well as adequate financial and human resources, to carry out the tasks assigned to it to enforce the obligations set out in this Sub-Section. Such power shall be exercised transparently and in a timely manner.
5. Each Party shall provide its telecommunications regulatory authority with the power to ensure that suppliers of telecommunications networks or services provide it, promptly on request, with all the information, including financial information, which is necessary to enable it to carry out its tasks in accordance with this Sub-Section. Information requested shall be treated in accordance with the Party’s requirements of confidentiality.
6. Each Party shall ensure that a user or supplier of telecommunications networks or services affected by a decision of the Party’s telecommunications regulatory authority has a right to appeal before an appeal body that is independent of the telecommunications regulatory authority and of the user or supplier affected by the decision. Pending the outcome of the appeal, the decision of the telecommunications regulatory authority shall stand, unless interim measures are granted in accordance with the Party’s law.
7. Each Party shall ensure that:
(a) its telecommunications regulatory authority reports annually, inter alia, on the state of the electronic communications market, on the decisions they issue, on their human and financial resources and how those resources are attributed, as well as on future plans; and
(b) the report referred to in subparagraph (a) is made publicly available.
Article 3.66. Authorisation to Provide Telecommunications Networks or Services
Each Party shall permit the provision of telecommunications networks or telecommunications services without a prior formal authorisation.
Each Party shall make publicly available all the criteria, applicable procedures and terms and conditions under which suppliers are permitted to provide telecommunications networks or telecommunications services.
Each Party shall ensure that:
(a) any authorisation criteria and applicable procedures are as simple as possible, objective, transparent, non-discriminatory and proportionate; and
(b) any obligations and conditions imposed on or associated with an authorisation are non-discriminatory, transparent, proportionate and related to the services or networks provided.
Each Party shall ensure that an applicant for an authorisation receives in writing the reasons for the denial or revocation of the authorisation, or the imposition of supplier-specific conditions. In such cases, an applicant shall have a right of appeal before an appeal body.
Each Party shall ensure that administrative fees imposed on suppliers are objective, transparent, non-discriminatory and commensurate with the administrative costs reasonably incurred in the management, control and enforcement of the obligations set out in this Sub-Section. Administrative fees do not include payments for rights to use scarce resources and mandated contributions to universal service provision.
Article 3.67. Transparency
To the extent not already provided for in this Agreement, each Party shall make each of the following, to the extent it exists, publicly available:
(a) the responsibilities of its telecommunications regulatory authority in an easily accessible and clear form;
(b) those measures it adopts or maintains relating to public telecommunications networks or services, including:
(i) regulations of its telecommunications regulatory authority, together with the basis for these regulations;
(ii) tariffs and other terms and conditions of services, except in circumstances otherwise provided for in its laws, regulations and decisions of its telecommunications regulatory authority;
(iii) specifications of technical interfaces;
(iv) conditions for attaching terminal or other equipment to the public telecommunications networks; and
(v) notification, permit, registration or licensing requirements; and
(c) information on bodies responsible for preparing, amending and adopting standards-related measures.
Article 3.68. Universal Service Obligation
Each Party has the right to define the kind of universal service obligation it wishes to maintain.
Each Party shall administer any universal service obligation that it maintains in a manner that is transparent, non-discriminatory and neutral with respect to competition. Each Party shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined. Universal service obligations defined according to these principles shall not be regarded per se as anticompetitive.
Each Party shall ensure that procedures for the designation of universal service suppliers are open to all suppliers of public telecommunications networks or services. The designation shall be made through an efficient, transparent and non-discriminatory mechanism.
If a Party decides to compensate a universal service supplier, it shall ensure that such compensation does not exceed the needs directly attributable to the universal service obligation, as determined through a competitive process or a determination of net costs.
Article 3.69. International Mobile Roaming Services (50)
The Parties recognise the importance of international mobile roaming services for enhancing consumer welfare and promoting the growth of trade between the Parties.
With a view to facilitating surcharge-free international mobile roaming for end-users of each Party, the maximum rates that a supplier of public telecommunications services of a Party may levy on a supplier of public telecommunications services of another Party for the provision of wholesale international mobile roaming services (IMRS Rates) shall be the IMRS rates specified in Annex XX.
The Sub-Committee on Services and Investment shall, within a reasonable period of time, make a recommendation to the Joint Committee concerning the adoption, by amending Annex XX, of the IMRS rates the Sub- Committee on Services and Investment considers appropriate, provided that those rates are:
(a) reasonable and reciprocal; and
(b) based on the cost to suppliers of a Party of supplying wholesale international mobile roaming services to suppliers of the other Parties, which may include a reasonable profit.
The Sub-Committee on Services and Investment, in making its recommendation:
(a) shall take into account relevant international benchmarks;
(b) may consult with the telecommunications regulatory authority of each Party by any means it considers appropriate; and
(c) may adopt its own rules of procedure for determining the IMRS rates.
The Sub-Committee on Services and Investment shall review the IMRS rates in Annex XX every two years, unless it otherwise decides, with a view to determining whether those rates are still appropriate. The review shall consider, inter alia, the implementation and effect of the IMRS rates, particularly for consumers and suppliers of public telecommunications services of each Party, and the views of each Party’s telecommunications regulatory authority. Following a review, the Sub-Committee on Services and Investment may make a recommendation to the Joint Committee, in accordance with paragraphs 3 and 4, that the IMRS rates be modified.
Each Party shall monitor the rates for retail international mobile roaming services offered by suppliers of public telecommunication services in that Party and may take such measures it considers necessary to facilitate surcharge-free international mobile roaming for end-users of the Party when roaming in another Party.
For greater certainty, this Article does not prevent:
(a) a supplier of public telecommunications services of a Party from applying a “fair use” policy for the provision of retail international mobile roaming services; or
(b) a Party from adopting or maintaining measures to prohibit permanent international mobile roaming services.
The Sub-Committee on Services and Investment shall review the implementation and functioning of this Article within three years of entry into force of this Agreement.
Article 3.70. Dispute Resolution
Each Party shall ensure that, in the event of a dispute arising between suppliers of telecommunications networks or services in connection with the rights and obligations that arise from this Sub-Section, and at the request of either supplier involved in the dispute, its telecommunications regulatory authority issues a binding decision within the timeframe stipulated in the Party’s law to resolve the dispute.
Each Party shall ensure that if its telecommunications regulatory authority declines to initiate any action on a request to resolve a dispute, the telecommunications regulatory authority shall, upon request, provide a written explanation for its decision within a reasonable period of time.
Each Party shall ensure that a decision issued by its telecommunications regulatory authority is made publicly available, having regard to the requirements of business confidentiality.
Each Party shall ensure that the suppliers involved in the dispute:
(a) are given a full statement of the reasons on which the decision is based; and
(b) may appeal the decision, in accordance with paragraph 6 of Article 3.65 (Telecommunications Regulatory Authority).
For greater certainty, the procedure referred to in paragraphs 1 and 2 shall not preclude a supplier of telecommunications networks or services involved in a dispute from bringing an action before a judicial authority.
Article 3.71. Confidentiality
Each Party shall ensure that suppliers that acquire information from another supplier in the process of negotiating arrangements pursuant to Article 3.57 (Access and Use), Article 3.58 (Access to Major Suppliers’ Essential Facilities), Article 3.59 (Interconnection) and Article 3.60 (Interconnection with Major Suppliers) use that information solely for the purpose for which it was supplied and respect, at all times, the confidentiality of information transmitted or stored.
Each Party shall ensure, in accordance with its law, the confidentiality of communications and related traffic data transmitted in the use of public telecommunications networks or public telecommunications services, subject to the requirement that measures applied to that end do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Subsection 3.5.5. INTERNATIONAL MARITIME TRANSPORT SERVICES
Article 3.72. Scope and Definitions
This Sub-Section shall apply to measures of a Party affecting the supply of international maritime transport services in addition to Sections 3.1 to 3.4 (General Provisions, Investment Liberalisation, Cross-Border Trade in Services, and Entry and Temporary Stay of Natural Persons for Business Purposes) of this Chapter and Sub-Section 3.5.1 (Domestic Regulation) and Sub-Section 3.5.2 (Provisions of General Application) of this Section.
For the purposes of this Sub-Section, Sub-Section 3.5.1 (Domestic Regulation) of this Section and Sections 3.1 to 3.4 (General Provisions, Investment Liberalisation, Cross-Border Trade in Services, and Entry and Temporary Stay of Natural Persons for Business Purposes) of this Chapter:
(a) “container station and depot services” means activities consisting in storing, stuffing, stripping or repairing of containers and making containers available for shipment, whether in port areas or inland;
(b) “customs clearance services” means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or through transport of cargoes, irrespective of whether these services are the main activity of the service supplier or a usual complement of its main activity;
(c) “door-to-door or multimodal transport operations” means the transport of cargo using more than one mode of transport, that includes an international sea-leg, under a single transport document;
(d) “feeder services” means the pre- and onward transportation by sea of international cargo, including containerised, break bulk and dry or liquid bulk cargo, between ports located in a Party, provided such international cargo is “en route”, that is, directed to a destination, or coming from a port of shipment, outside of that Party;
(e) “international cargo” means cargo transported between a port of one Party and a port of another Party or of a non-Party;
(f) “international maritime transport services” means the transport of passengers or cargo by sea-going vessels between a port of one Party and a port of another Party or of a non-Party, including the direct contracting with providers of other transport services, with a view to covering door-to-door or multimodal transport operations under a single transport document, but does not include the right to provide such other transport services;
(g) “maritime agency services” means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, issuance of bills of lading on behalf of the shipping lines or shipping companies, acquisition and resale of the necessary related services, preparation of documentation and provision of business information; and
(ii) acting on behalf of the shipping lines or shipping companies organising the call of the ship or taking over cargoes when required;
(h) “maritime auxiliary services” means maritime cargo handling services, customs clearance services, container station and depot services, maritime agency services, maritime freight forwarding services and storage and warehousing services;
(i) “maritime cargo handling services” means activities exercised by stevedore companies, including terminal operators but not including the direct activities of dockers if the workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(i) the loading or discharging of cargo to or from a ship;
(ii) the lashing or unlashing of cargo; and
(iii) the reception or delivery and safekeeping of cargoes before shipment or after discharge;
(j) “maritime freight forwarding services” means the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the arrangement of transport and related services, preparation of documentation and provision of business information;
(k) “port services” means services provided inside a maritime port area or on the waterway access to such area by the managing body of a port, its subcontractors, or other service providers to support the transport of cargo or passengers; and
(l) “storage and warehousing services” means storage services of frozen or refrigerated goods, bulk storage services of liquids or gases, and other storage or warehousing services.
Article 3.73. Obligations
1. Without prejudice to non-conforming measures or other measures referred to in Article 3.12 (Non-Conforming Measures) of Section 3.2 (Investment Liberalisation) and Article 3.18 (Non-Conforming Measures) of Section 3.3 (Cross-Border Trade in Services), each Party shall implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis by:
(a) according to ships flying the flag of another Party, or operated by international maritime transport service suppliers of another Party, treatment no less favourable than that accorded to its own ships or ships of a non-Party, with regard to, inter alia:
(i) access to ports;
(ii) the use of port infrastructure;
(iii) the use of maritime auxiliary services; and
(iv) customs facilities and the assignment of berths and facilities for loading and unloading;
including related fees and charges;
(b) making available to international maritime transport service suppliers of another Party on terms and conditions which are both reasonable and no less favourable than those applicable to its own suppliers or vessels or to vessels or suppliers of a non-Party (including fees and charges, specifications and quality of the service to be provided), the following port services: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain’s services, navigation aids, emergency repair facilities, anchorage, berth, berthing and unberthing services and shore-based operational services essential to ship operations, including communications, water and electrical supplies;
(c) permitting international maritime transport service suppliers of another Party to re-position owned or leased empty containers, which are not being carried as cargo against payment, between ports of that Party; and
(d) permitting international maritime transport service suppliers of another Party to provide feeder services between their national ports.
2. In applying the principle referred to in paragraph 1, a Party shall not:
(a) introduce cargo-sharing arrangements in future agreements with non- Parties concerning maritime transport services, including dry and liquid bulk and liner trade, and shall terminate, within a reasonable period of time, such cargo-sharing arrangements in case they exist in previous agreements;
(b) adopt or maintain a measure that requires all or part of any international cargo to be transported exclusively by vessels registered in that Party or owned or controlled by natural persons of that Party;
(c) introduce unilateral measures or administrative, technical and other obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of international maritime transport services, and that Party shall remove any such measures or administrative, technical and other obstacles should they already exist; or
(d) prevent international maritime transport service suppliers of another Party from directly contracting with other transport service suppliers for door-to-door or multimodal transport operations.