(d) recognises a body assessing conformity with a specific technical regulation or standard in its territory and refuses to recognise a body assessing conformity with that technical regulation or standard in the territory of another Party; or
(e) applies a technical regulation that, in the view of another Party, is more trade restrictive than necessary to fulfil a legitimate objective, taking account of the risks that non-fulfilment would create; or
(f) applies a conformity assessment procedure that, in the view of another Party, is more strict or applied more strictly than necessary to give adequate confidence that products conform with the applicable technical regulation or standard, taking account of the risks that non-conformity would create; or
(g) applies a technical regulation that, in the view of another Party, is not in conformity with Article 5.1 of this Chapter; or
(h) applies conformity assessment procedures in a manner that, in the view of another Party, is not in conformity with Article 5.2 of this Chapter;
it shall on request explain its reasons in writing. If the Party requesting an explanation so desires, it may request further technical discussions in accordance with the procedure under Article 11.
Article 7. Code of Good Practice for the Preparation, Adoption and Application of Standards
Each Party in respect of central government bodies shall ensure, and in respect of local government and non-governmental bodies shall take such reasonable measures as may be available to it to ensure, that standardising bodies in its territory:
(a) in the case of a Party that is a WTO Member, accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards at Annex 3 to the TBT Agreement; and
(b) in the case of a Party that is not a WTO Member, observe to the extent of its capacity the Substantive Provisions of the Code of Good Practice for the Preparation, Adoption and Application of Standards at Annex 3 to the TBT Agreement.
Article 8 . Transparency
1. Consistent with Articles 2.9, 2.10, 5.6 and 5.7 of the TBT Agreement, where a relevant international standard, guide or recommendation does not exist or the technical content of a proposed technical regulation or related conformity assessment procedure is not in accordance with the technical content of relevant international standards, guides or recommendations, and if such regulation or procedure may have a significant effect on the trade of other Parties, the Party preparing it shall:
(a) publish a notice of its proposal to introduce the regulation or procedure in a publication at an early appropriate stage, in such a manner as to enable interested Parties to become acquainted with it;
(b) notify Parties, at an early appropriate stage when amendments can still be introduced and comments taken into account, of the products to be covered by the regulation or procedure and its objective and rationale;
(c) on request, provide to other Parties through Contact Points particulars or copies in electronic format of the proposed regulation or procedure and, whenever possible, identify the parts which deviate in substance from relevant international standards, guides or recommendations; and
(d) without discrimination, allow reasonable time for other Parties to make comments in writing, discuss these comments on request and take these written comments and the results of these discussions into account.
2. Where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for that Party, it may omit such steps of paragraph 1(a) to 1(d) as it finds necessary, provided that, upon adoption of the regulation or procedure, the Party:
(a) notifies other Parties in writing of the regulation or procedure, the products covered, its objective and rationale, and the nature of the urgent problems;
(b) on request, provides other Parties through Contact Points with electronic copies of the regulation or the rules of the procedure; and
(c) without discrimination, allows other Parties to present their comments in writing, discusses these comments on request, and takes these written comments and the results of these discussions into account in making an informed decision about the measure.
3. Notifications, requests, comments, responses and other communications for the purposes of paragraphs 1 and 2 shall be conveyed through Contact Points.
4. Each Party shall ensure that technical regulations and conformity assessment procedures which have been adopted are published promptly or otherwise made available in such manner as to enable any member of the public in any Party to become acquainted with them.
5. Consistent with Articles 2.12 and 5.9 of the TBT Agreement and except in the urgent circumstances specified in Articles 2.10 and 5.7 of the TBT Agreement, an importing Party shall allow a reasonable interval between the publication of a technical regulation or related conformity assessment procedure and its entry into force in order to allow time for producers in exporting Parties, and particularly in developing country Parties, to adapt their products or methods of production to its requirements. The reasonable interval shall be a period of not less than six months, except where this would be ineffective in fulfilling the legitimate objective pursued.
Article 9. Contact Points
1. Each Party shall provide the other Parties with a Contact Point to facilitate the distribution of requests and notifications made in accordance with this Chapter and which shall, for that Party, have responsibility for coordinating the implementation of this Chapter.
2. Each Party shall provide each other Party with the name of its Contact Point and the contact details of the relevant position in the organisation which performs its functions, including telephone, facsimile, e-mail address, mailing address and any other relevant details.
3. Each Party shall ensure that the information provided under paragraphs 1 and 2 is kept up-to-date.
4. Each Party shall ensure that its Contact Point facilitates the exchange of information between the Parties on any matters relating to the implementation of this Chapter.
5. To promote efficiency in the distribution of requests and notifications under this Chapter and ensure consistency with the performance of related functions under the TBT Agreement, each Party that is a WTO Member should consider assigning to its Enquiry Point established pursuant to Article 10 of the TBT Agreement the role of Contact Point for the purposes of this Chapter.
Article 10. Cooperation
1. The Parties shall undertake joint efforts in the fields of standards, technical regulations and conformity assessment procedures with a view to facilitating trade between the Parties, including increasing market access opportunities for developing country Parties.
2. Each Party shall on request of another Party give positive consideration to proposals for cooperation on matters within the scope of this Chapter on mutually agreed terms and conditions, including but not limited to:
(a) advice, technical assistance or capacity building relating to the development and application of standards, technical regulations and conformity assessment procedures;
(b) cooperation between conformity assessment bodies, both governmental and non- governmental, in the territories of each of the Parties on matters such as:
(i) use of accreditation to qualify conformity assessment bodies; and
(ii) enhancing infrastructure in calibration, testing, inspection, certification and accreditation to meet relevant international standards, guidelines and recommendations;
(c) cooperation in areas of mutual interest in the work of relevant regional and international bodies relating to the development and application of standards and conformity assessment procedures, such as enhancing participation, particularly of the developing country Parties, in the existing frameworks for mutual recognition developed by relevant regional and international bodies; and
(d) enhancing cooperation in the development and improvement of technical regulations and conformity assessment procedures in areas such as:
(i) cooperation in the development and promotion of good regulatory practice;
(ii) transparency, including ways to promote improved access to information on standards, technical regulations and conformity assessment procedures; and
(iii) management of risks relating to health, safety, the environment and deceptive practices.
3. On request of another Party, a Party shall give positive consideration to a sector- specific proposal that the requesting Party makes for further cooperation under this Chapter on mutually agreed terms and conditions.
Article 11. Technical Discussions
1. If a Party considers that a technical regulation, standard or conformity assessment procedure affecting trade between it and another Party warrants further discussion, it may, through the Contact Points, request a detailed explanation of the measure and if necessary, request to hold technical discussions in an attempt to resolve any concerns on specific issues arising from the application of the measure. The other Party shall respond promptly to any requests for such explanations, and if so requested, shall enter into technical discussions within 60 days from the date of the request. The Parties to the technical discussions shall make every effort to reach a mutually satisfactory resolution through technical discussions within 90 days from the date of the request or within a timeframe mutually agreed upon by them.
2. A Party participating in technical discussions or negotiations pursuant to paragraph 3 of Article 4, paragraph 2 of Article 6 or paragraph 1 of this Article may invite another Party or a relevant international or regional organisation in the field of technical regulations, standards and conformity assessment procedures to participate for the purpose of providing technical advice.
3. Technical discussions should be conducted using electronic means. If this is not possible they may be conducted in person or by any other means, as mutually determined by the Parties.
4. The Parties shall take such reasonable measures as may be available to them to ensure that representatives of bodies responsible for the technical regulations, standards or conformity assessment procedures that are the subject of the technical discussions participate in those discussions.
5. A Party shall exercise restraint when requesting technical discussions between it and another Party on a matter that has been the subject of a previous technical discussion between the two Parties. If technical discussions on a matter under Article 6.2(b) to Article 6.2(f) have taken place, and a mutually satisfactory solution cannot be reached, an importing Party may only decline a further request for technical discussions on justifiable grounds.
6. Without prejudice to the rights and obligations of the Parties under other provisions of this Agreement, if the importing Party declines a request for technical discussions under paragraph 5 it shall provide an explanation of reasons for its position.
7. Technical discussions held pursuant to this Article do not constitute formal consultations under Chapter 14 (Consultations and Dispute Settlement) and are without prejudice to the rights and obligations of the Parties under that Chapter, the WTO Agreement or any other agreement to which both Parties are party.
Article 12. Meetings on Technical Regulations, Standards and Conformity Assessment Procedures
1. The Parties shall, through the Committee on Sanitary and Phytosanitary Measures and Technical Barriers to Trade, the Joint Committee or any other relevant subsidiary body, consult as required to consider the implementation of their commitments under this Chapter.
2. The Parties, through the Committee on Sanitary and Phytosanitary Measures and Technical Barriers to Trade, the Joint Committee or any other relevant subsidiary body, shall commence a review of this Chapter within three years of entry into force of this Agreement and submit a final report to the Joint Committee, including any recommendations, within four years of entry into force of this Agreement.
Article 13. Special and Differential Treatment
Consistent with Articles 12.3, 12.4 and 12.9 of the TBT Agreement:
(a) Each Party shall, in the preparation and application of technical regulations, standards and conformity assessment procedures, take account of the special development, financial and trade needs of developing country Parties, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to exports from developing country Parties.
(b) Parties recognise that, although international standards, guidelines or recommendations may exist, in their particular technological and socio-economic conditions, developing country Parties may adopt certain technical regulations, standards or conformity assessment procedures aimed at preserving indigenous technology and production methods and processes compatible with their development needs. Parties therefore recognise that developing country Parties should not be expected to use international standards as a basis for their technical regulations or standards, including test methods, which are not appropriate to their development, financial and trade needs.
(c) During consultations, developed country Parties shall bear in mind the special difficulties experienced by developing country Parties in formulating and implementing technical regulations, standards and conformity assessment procedures and, in their desire to assist developing country Parties with their efforts in this direction, developed country Parties shall take into account the special needs of the former in regard to financing, trade and development.
Chapter 7. TRADE IN SERVICES
Article 1. Definitions
For the purposes of this Chapter:
aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service but does not include line maintenance;
airport operation services means the supply of air terminal, airfield and other airport infrastructure operation services on a fee or contract basis. Airport operation services does not include air navigation services;
commercial presence means any type of business or professional establishment, including one operating through:
(a) the constitution, acquisition or maintenance of an enterprise; or
(b) the creation or maintenance of a branch or a representative office;
within the territory of a Party for the purposes of supplying a service;
computer reservation system services means services provided by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
ground handling services means the supply at an airport, on a fee or contract basis, of the following: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering (except the preparation of the food); air cargo and mail handling; fuelling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning. Ground handling services do not include self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure such as de-icing facilities, fuel distribution systems, baggage handling systems, and fixed intra-airport transport systems;
measures adopted or maintained by a Party means any measure taken by:
(a) central, state, regional or local Government and authorities; or
(b) non-governmental bodies in the exercise of powers delegated by central, state, regional or local Governments or authorities;
Such measures include measures in respect of:
(a) the purchase, payment or use of a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of another Party;
monopoly supplier of a service means any person, public or private, who in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
person means either a natural person or an enterprise; sector of a service means:
(a) with reference to a specific commitment, one or more, or all subsectors of that service, as specified in a Party’s Schedule of Specific Services Commitments at Annex 7-A to this Agreement;
(b) otherwise, the whole of that service sector, including all of its subsectors;
selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
service of another Party means a service which is supplied:
(a) from or in the territory of that other Party; or in the case of maritime transport, by a vessel registered under the laws of that other Party, or by a person of that other Party who supplies the service through the operation of a vessel or its use in whole or in part; or
(b) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;
service consumer means any person that receives or uses a service;
service supplier of a Party means a person of a Party that supplies a service; (1)
services includes any service in any sector except services supplied in the exercise of governmental authority;
services supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
specialty air services means any non-transportation air services such as aerial firefighting, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services;
supply of a service includes the production, distribution, marketing, sale and delivery of a service;
trade in services means the supply of a service:
(a) from the territory of one Party into the territory of another Party (‘Mode 1’);
(b) in the territory of one Party to the service consumer of another Party (‘Mode 2’);
(c) by a service supplier of one Party, through commercial presence in the territory of another Party (‘Mode 3’);
(d) by a service supplier of one Party, through presence of natural persons of a Party in the territory of another Party (‘Mode 4’);
traffic rights means the right for scheduled and non-scheduled services to operate or carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.
Article 2. Scope
1. This Chapter applies to measures affecting trade in services adopted or maintained by a Party.
2. This Chapter shall not apply to:
(a) services supplied in the exercise of governmental authority; (2)
(b) any measures adopted or maintained by a Party with respect to government procurement;
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance, or any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers or service suppliers;
(d) in respect of air transport services, measures affecting traffic rights however granted; or measures affecting services directly related to the exercise of traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(iv) specialty air services;
(v) ground handling services; and
(vi) airport operation services.
3. For greater certainty, the Parties recognise the right of all Parties to regulate and to introduce new regulations to regulate the supply of services within their territory in order to meet national policy objectives, provided that such regulation is not inconsistent with this Chapter. (3)
Article 3. Most-Favoured-Nation Treatment
1. With respect to any measure covered by this Chapter, each Party shall accord immediately and unconditionally to services and service suppliers of another Party treatment no less favourable than that it accords to like services and service suppliers of a non-party.
2. A Party may maintain a measure inconsistent with Paragraph 1 provided that such a measure falls within the scope of any exemptions list in Annex I (Schedule of Most- Favoured-Nation Exemptions on Services and Investment).
Article 4. Increasing the Participation of Forum Island Countries
1. The increasing participation of Forum Island Countries in services trade shall be facilitated through negotiated specific commitments pursuant to Article 5, Article 6, Article 7 and Article 8 relating to:
(a) the strengthening of their domestic services capacity and its efficiency and competitiveness inter alia through access to technology on a commercial basis;
(b) the improvement of their access to distribution channels and information networks; and
(c) the liberalisation of market access in sectors and modes of supply of export interest to Forum Island Countries.
2. Within one year of the date of entry into force of this Agreement, each Party shall establish contact points to facilitate the access of service suppliers to information related to their respective markets in relation to commercial and technical aspects of the supply services, registration, recognition and the obtaining of professional qualifications and the availability of technology.
Article 5. Market Access
1. With respect to market access through the modes of supply identified in the definition of “trade in services” in Article 1, each Party shall accord services and service suppliers of another Party treatment no less favourable than that provided for under the terms, limitations and conditions specified in its Schedule of Specific Services Commitments at Annex 7-A to this Agreement.
2. In the sectors where market access commitments are undertaken, a Party shall not maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, measures which:
(a) limit the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(b) limit the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limit the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test, except measures of a Party which limit inputs for the supply of services;
(d) limit the total number of natural persons who may be employed in a particular service sector or who a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service, in the form of numerical quotas or the requirement of an economic needs test;
(e) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limit the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or of the total value of individual or aggregate foreign investment.
3. through Mode 1, and if the cross-border movement of capital is an essential part of the service itself, it shall allow such movement of capital.
If a Party undertakes a market access commitment in relation to the supply of a service
4. If a Party undertakes a market access commitment in relation to the supply of a service through Mode 3, it shall allow related transfers of capital into its territory.
Article 6. National Treatment
1. In the sectors specified in its Schedule of Specific Services Commitments at Annex 7- A to this Agreement, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of another Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.
2. A Party may meet the requirement in paragraph 1 by according to services and service suppliers of another Party either formally identical treatment or formally different treatment to that which it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to the like service or service suppliers of another Party.
4. Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
Article 7. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Article 5 and Article 6, including those regarding qualifications, standards or licensing matters. Such commitments shall be entered in a Party’s Schedule of Specific Services Commitments at Annex 7-A to this Agreement.
Article 8. Specific Commitments
1. The specific commitments undertaken by each Party under Article 5 and Article 6 shall be set out in the Schedule of Specific Services Commitments under Annex 7-A to this Agreement. With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings related to additional commitments; and
(d) where appropriate, the time-frame for implementation of such commitments.
2. Measures inconsistent with both Article 5 and Article 6 are inscribed in the column relating to Article 5. In this case, the inscription shall be considered to also provide a condition or qualification to Article 6.
Article 9. Modification of Schedules
1. (a) A Party (referred to in this Article as the “modifying Party”) may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article.