(b) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the inter-operability of services or virtual network services;
(c) to provide co-location; and
(d) to provide services required to ensure interoperability of end-to-end services to users.
2. When a Party is considering the obligations referred in paragraph 1, it may take account of, inter alia, the follow- ing factors:
(a) the technical and economic viability of using or installing competing facilities, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access products such as access to ducts;
(b) the feasibility of providing the access proposed, in relation to the capacity available;
(c) the initial investment by the facility owner, taking into account the risks involved in making the investment; and
(d) the need to safeguard effective and sustainable competition.
Article 8.33. Co-location
1. Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications networks or services of the other Party physical co-location of equipment necessary for interconnection or access to unbundled network elements in a timely fashion and on terms and conditions that are reasonable and non-discriminatory.
2. Each Party may determine in accordance with its domestic law the locations at which it requires major suppliers in its territory to provide co-location under paragraph 1.
Article 8.34. Resale
Each Party shall ensure that major suppliers in its territory offer for resale to suppliers of public telecommunications networks or services of the other Party, public telecommunications services that such major suppliers provide at retail to end-users in accordance with the provisions of this Sub-Section and, in particular, with Article 8.32 (Unbundled Net- work Elements).
Article 8.35. Facility Sharing
1. Each Party shall be able, taking into account the principle of proportionality, to impose on any major supplier having the right to install facilities on, over or under public or private property, the sharing of such facilities or property, including buildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, poles, ducts, conduits, manholes and cabinets.
2. Each Party may determine in accordance with its domestic law the facilities to which it requires major suppliers in its territory to provide access under paragraph 1, on the basis that such facilities cannot feasibly be economically or technically substituted in order to provide a competing service.
Article 8.36. Provisioning of Leased Circuits Services
Each Party shall ensure that major suppliers of leased. circuits services in its territory provide juridical persons of the other Party leased circuits services that are public telecommunications services in a timely fashion on terms and conditions that are reasonable, non-discriminatory and transparent.
Article 8.37. Number Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability for those services designated by that Party, to the extent technically feasible, on a timely basis and on reasonable terms and conditions.
Article 8.38. Submarine Cable Landing Stations
Each Party shall ensure access to submarine cable systems, including landing facilities, in its territory, where a supplier is authorised to operate a submarine cable system as a public telecommunications service, on reasonable, non-discrimina- tory and transparent terms and conditions.
Article 8.39. Independent Regulatory Authority
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications networks or services or telecommunications equipment. To this end, each Party shall ensure that its telecommunications regulatory body does not hold any financial interest or control in such a supplier.
2. Each Party shall ensure that the decisions of, and procedures followed by, its telecommunications regulatory bodies are fair and impartial with respect to all market participants and that they are made and implemented without undue delay. To this end, each Party shall ensure that any financial interest that it holds in a supplier of public telecommunications networks or services does not influence the decisions of, and procedures followed by, its telecommunications regulatory body.
3. The powers of the regulatory authorities shall be exercised transparently in accordance with the applicable domestic law.
4. Regulatory authorities shall have the power to ensure that suppliers of telecommunications transport networks and services within their respective territories provide them, promptly upon request, with all the information, including financial information, which is necessary to enable the regulatory authorities to carry out their tasks in accordance with this Sub-Section. Information requested shall be reasonably proportionate to the performance of the regulatory authorities' tasks and treated in accordance with the requirements of confidentiality.
5. The regulatory authority shall be sufficiently empowered to regulate the sector. The tasks to be undertaken by a regulatory authority shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
Article 8.40. Universal Services
1. Each Party has the right to define the kind of universal service obligations that it wishes to maintain.
2. Such obligations will not be regarded as anti-competitive per se, provided that they are administered in a transparent, objective, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Party.
3. Where a Party requires a supplier of telecommunications services to provide directories of subscribers, that Party shall ensure that the supplier applies the principle of non-discrimination to the treatment of information that has been provided to them by other suppliers of such telecommunications services.
Article 8.41. Authorisation to Provide Telecommunications Services
1. Each Party shall ensure that licensing procedures are as simple as possible and do not unduly complicate or delay the provisions of the service.
2. Where a Party requires a supplier of public telecommunications networks or services to have a licence, that Party shall make publicly available:
(a) all the licensing criteria, terms, conditions and procedures it applies; and
(b) a reasonable period of time that would normally be required to reach a decision concerning an application for a licence.
3. Each Party shall ensure that, if it so requests, the applicant receives in writing the reasons for the denial of a licence.
4. Where a licence has been unduly denied, the applicant for a licence shall be able to seek recourse before an appeal body.
5. Any licensing or authorisation fees (29) which the applicants may incur from their application should be reasonable and should not in themselves restrict the supply of the service.
Article 8.42. Allocation and Use of Scarce Resources
1. Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, timely, transparent and non-discriminatory manner. The current state of allocated frequency bands shall be made publicly available, but detailed identification of frequencies allocated for specific government uses is not required.
2. The Parties understand that decisions on allocating and assigning spectrum and frequency management are not measures that are per se inconsistent with Articles 8.5 (Market Access) and 8.10 (Market Access). Accordingly, each Party retains the right to exercise its spectrum and frequency management policies, which may affect the number of suppliers of public telecommunications services, provided that this is done in a manner that is consistent with this Chapter. The Parties also retain the right to allocate frequency bands in a manner that takes existing and future needs into account.
Article 8.43. Enforcement
1. Each Party shall ensure that its telecommunications regulatory body maintains appropriate procedures and has the authority to enforce domestic measures relating to the obligations under this Sub-Section. Such procedures and authority shall include the ability to impose timely, proportionate and effective sanctions, and the ability to modify, suspend, and revoke licences.
2. Where a major supplier refuses the application of the rights and obligations provided for in Article 8.29 (Interconnection with Major Suppliers), Article 8.30 (Conduct of Major Suppliers), Article 8.31 (Competitive Safeguards on Major Suppliers), Article 8.32 (Unbundled Network Elements), Article 8.33 (Co-location), Article 8.34 (Resale), Article 8.35 (Facility Sharing) or Article 8.36 (Provisioning of Leased Circuit Services), the requesting service supplier may seek the intervention of the regulatory body, which shall issue, in accordance with its domestic law, a binding decision, in the shortest possible period of time, and in any case within a reasonable period of time.
Article 8.44. Resolution of Telecommunications Disputes
1. Each Party shall ensure that suppliers of public telecommunications networks or services of the other Party have timely recourse to a telecommunications regulatory body or other relevant body to resolve disputes arising under domestic measures that address a matter set out in this Sub-Section.
2. Each Party shall ensure that any supplier of public telecommunications networks or services of the other Party that is affected by a decision of its telecommunications regulatory body may appeal against that decision to a judicial or administrative authority independent of the parties involved.
3. Where the appeal body is not judicial in character, written reasons for its decision shall be given and its decision shall be subject to review by an impartial and independent judicial authority.
4. Decisions taken by appeal bodies shall be effectively implemented by the parties concerned. in accordance with the applicable domestic law and internal procedures. An appeal shall not relieve a party concerned of its obligation to comply with the underlying regulatory decision unless an appropriate authority has stayed that regulatory decision.
Article 8.45. Transparency
When regulatory bodies intend to take measures related to the provisions of this Sub-Section, they shall give interested parties the opportunity to comment on the draft measure within a reasonable period of time, in accordance with their domestic law. Regulatory bodies shall make their consultation procedures for such draft measures publicly available. The results of the consultation procedure should be made publicly available by the regulatory body except in the case of confidential information in accordance with the domestic law on business confidentiality.
Article 8.46. Flexibility In the Choice of Technologies
Neither Party shall prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, subject to the ability of each Party to take measures to ensure that end-users of different networks are able to communicate with each other.
Article 8.47. Relationship to other Sub-Sections, Sections and Chapters
In the event of any inconsistency between this Sub-Section and another Sub-Section or Section in this Chapter or another Chapter, this Sub-Section shall prevail to the extent of such inconsistency.
Article 8.48. Cooperation
1. The Parties, recognising the rapid development of the telecommunications and information technology industry, both in the domestic and international contexts, shall cooperate to promote the development of such services with a view to obtaining the maximum benefit for the Parties from the use of telecommunications and information technology.
2. The areas of cooperation may include the following:
(a) exchanging views on policy issues such as the regulatory framework for high speed broadband networks and the reduction of international mobile roaming charges; and
(b) promoting the use by consumers, the public sector and the private sector of telecommunications and information technology services, including newly emerging services.
3. The forms of cooperation may include the following:
(a) promoting dialogue on policy issues;
(b) enhancing cooperation in international fora relating to telecommunications and information technology; and
(c) other forms of cooperation activities.
Subsection 6. FINANCIAL SERVICES
Article 8.49. Scope and Definitions
1. This Sub-Section sets out the principles of the regulatory framework for all financial services liberalised pursuant to Sections B (Cross-border Supply of Services), C (Establishment) and D (Temporary Presence of Natural Persons for Business Purposes).
2. For the purposes of this Sub-Section:
(a) "financial service" means any service of a financial nature, including a service incidental or auxiliary to a service of a financial nature, offered by a financial service supplier of a Party; financial services include the following activities:
(i) insurance and insurance-related services:
(1) direct insurance (including co-insurance):
(aa) life insurance;
(bb) non-life insurance;
(2) reinsurance and retrocession;
(3) insurance inter-mediation, such as brokerage and agency; and
(4) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services; and
(ii) banking and other financial services (excluding insurance):
(1) the acceptance of deposits and other repayable funds from the public;
(2) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(3) financial leasing;
(4) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(5) guarantees and commitments;
(6) the trading on own account or for the account of customers, whether on an exchange, in an over-the-counter market or otherwise, of the following:
(aa) money market instruments (including cheques, bills, certificates of deposits);
(bb) foreign exchange;
(cc) derivative products including, but not limited to, futures and options;
(dd) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(ee) transferable securities;
(ff) other negotiable instruments and financial assets, including bullion;
(7) the participation in issues of securities of all kinds, including underwriting and placement as agent, whether publicly or privately, and provision of services related to such issues;
(8) money broking;
(9) asset management, such as cash or portfolio management, any form of collective investment management, pension fund management, custodial, depository and trust services;
(10) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(11) the provision and transfer of financial information, and the provision of financial data processing and related software by suppliers of other financial services; and
(12) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (1) to (11), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party that is engaged or is seeking to engage in the business of supplying financial services within the territory of that Party but does not include a public entity;
(c) "new financial service" means a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of the other Party;
(d) "public entity" means:
(i) a government, central bank or monetary authority of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, other than an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions; and
(e) "self-regulatory organisation" means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from central, regional or local governments or authorities.
Article 8.50. Prudential Carve-out
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining reasonable measures for prudential reasons, such as:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier;
(b) the maintenance of the safety, soundness, integrity or financial responsibility of financial service suppliers; or
(c) ensuring the integrity and stability of the Party's financial system.
2. These measures shall not be more burdensome than necessary to achieve their aim, and shall not constitute a means of arbitrary or unjustifiable discrimination against financial service suppliers of the other Party in comparison to its own like financial service suppliers, or a disguised restriction on trade in services.
3. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual consumers or to disclose any confidential or proprietary information in the possession of public entities.
4. Each Party shall use its best endeavours to ensure that the Basel Committee's "Core Principles for Effective Banking Supervision", the standards and principles of the International Association of Insurance Supervisors and the International Organisation of Securities Commissions' "Objectives and Principles of Securities Regulation", and the internationally agreed Standard for transparency and exchange of information for tax purposes, as spelled out in the 2017 OECD Model Tax Convention on Income and on Capital, are implemented. and applied in its territory.
5. Subject to Article 8.6 (National Treatment) and without prejudice to other means of prudential regulation of cross- border trade in financial services, a Party may require the registration or authorisation of cross-border financial service suppliers of the other Party and of financial instruments.
Article 8.51. Self-regulatory Organisations
When membership or participation in, or access to, any self-regulatory organisation is required by a Party in order for financial service suppliers of the other Party to supply financial services in or into the territory of the first Party, the Party shall ensure observance of the obligations under Article 8.6 (National Treatment) and Article 8.11 (National Treatment) by such self-regulatory organisation.
Article 8.52. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall, as permitted by its access criteria, grant to financial service suppliers of the other Party that are established in its territory and regulated or supervised as financial service suppliers under its domestic law, access to payment and clearing systems operated by public entities and to official funding and refinancing facilities available in the normal course of ordinary business. This Article is not intended to confer access to a Party's lender-of-last-resort facilities.
Article 8.53. New Financial Services
Each Party shall permit a financial service supplier of the other Party to supply any new financial service that the first Party would permit its own like financial service suppliers to supply without additional legislative action required by the first Party. Each Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorisation for the supply of the service. Where a Party requires such authorisation, a decision shall be made within a reasonable time and the authorisation may only be refused for prudential reasons under Article 8.50 (Prudential Carve-out).
Article 8.54. Data Processing
1. Each Party shall, subject to appropriate safeguards on privacy and confidentiality, permit a financial service supplier 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 ordinary course of business of such financial service supplier.
2. Each Party shall adopt or maintain appropriate safeguards to protect privacy and personal data, including individual records and accounts, as long as these safeguards are not used to circumvent the provisions of this Agreement.
Article 8.55. Specific Exceptions
1. Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing activities or services in its territory that form part of a public retirement plan or statutory system of social security, except where those activities may be carried out, by financial service suppliers in competition with public entities or private institutions, as provided by the Party's domestic regulation.
2. Nothing in this Agreement applies to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies.
3. Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing activities or services in its territory for the account or with the guarantee or using the financial resources of the Party, or its public entities, except where that Party's domestic regulation provides that those activities may be carried out by financial service suppliers in competition with public entities or private institutions.
Subsection 7. INTERNATIONAL MARITIME TRANSPORT SERVICES
Article 8.56. Scope, Definitions and Principles
1. This Sub-Section sets out the principles regarding the liberalisation of international maritime transport services pursuant to Sections B (Cross-border Supply of Services), C (Establishment) and D (Temporary Presence of Natural Persons for Business Purposes).
2. For the purposes of this Sub-Section, "international maritime transport" includes door-to-door and multi-modal transport operations, which means the carriage of goods using more than one mode of transport, and which involves a sea-leg, where such carriage takes place under a single transport document, and to this effect involves the right to contract directly with providers of other modes of transport.
3. As regards international maritime transport, the Parties agree to ensure the effective application of the principles of unrestricted access to cargoes on a commercial basis, the freedom to supply international maritime transport services, as well as national treatment in the framework of the supply of such services.
In view of the existing levels of liberalisation between the Parties in international maritime transport:
(a) the Parties shall effectively apply the principle of unrestricted access to the international maritime transport markets and trades on a commercial and non-discriminatory basis; and
(b) each Party shall grant to ships flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than the treatment that the granting Party accords to its own ships or those of any third country, whichever is better, with regard to, inter alia, access to ports, the use of infrastructure and auxiliary maritime services of the ports, as well as with regard to related fees and charges, customs facilities and access to berths and facilities for loading and unloading.
4. In applying these principles, the Parties shall:
(a) not introduce cargo-sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and shall terminate, within a reasonable period of time, any such cargo-sharing arrangements that exist in previous agreements; and
(b) upon the entry into force of this Agreement, abolish and abstain from introducing any unilateral measures (30) or administrative, technical and other obstacles which could constitute a disguised restriction or could have discriminatory effects on the free supply of services in international maritime transport.
5. Each Party shall permit international maritime transport service suppliers of the other Party to have an establishment in its territory under conditions of establishment and operation in accordance with the conditions inscribed in its Schedule of Specific Commitments.
6. The Parties shall make the use of the following services at the port available to international maritime transport suppliers of the other Party on reasonable and non-discriminatory terms and conditions:
(a) pilotage;
(b) towing and tug assistance;
(c) provisioning;
(d) fuelling and watering;
(e) garbage collecting and ballast waste disposal;
(f) port captain's services;
(g) navigation aids;
(h) shore-based operational services that are essential to ship operations, including communications, water and electrical supplies; and
(i) emergency repair facilities, anchorage, berth and berthing services.