(b) A modifying Party shall notify its intent to modify or withdraw a commitment pursuant to this Article to the Joint Committee no later than three months before the intended date of implementation of the modification or withdrawal.
2. (a) At the request of any Party whose benefits under this Agreement may be affected (referred to in this Article as an "affected Party") by a proposed modification or withdrawal notified under paragraph 1(b), the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Parties concerned shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations.
(b) Compensatory adjustments shall be made on a most-favoured-nation basis.
3. (a) If agreement is not reached between the modifying Party and any affected Party before the end of the period provided for negotiations, such affected Party may refer the matter to the Joint Committee. Any affected Party that wishes to enforce a right that it may have to compensation must participate in meetings that may be convened by the Joint Committee to resolve this matter.
(b) If no affected Party has requested the intervention of the Joint Committee, the modifying Party shall be free to implement the proposed modification or withdrawal.
4. (a) The modifying Party may not modify or withdraw its commitment until it has made compensatory adjustments in conformity with the findings of the Joint Committee.
(b) If the modifying Party implements its proposed modification or withdrawal and does not comply with the recommendations of the Joint Committee, any affected Party that participated in the Joint Committee’s meetings may modify or withdraw substantially equivalent benefits in conformity with those findings. Notwithstanding Article 3, such a modification or withdrawal may be implemented solely with respect to the modifying Party.
5. The Joint Committee shall establish procedures for the rectification or modification of Schedules. Any Party which has modified or withdrawn scheduled commitments under this Article shall modify its Schedule according to such procedures.
Article 10. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures, which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services, including correction of the contested final administrative actions. Where such tribunals or procedures are not independent of the agency responsible for the administrative action concerned, the Party shall ensure that the tribunals or procedures provide for an objective and impartial review.
(b) Each Party shall ensure that, in any such tribunal or under any such procedures referred to in subparagraph (a), the parties to any proceedings are provided with the right to:
(i) a reasonable opportunity to support or defend their respective positions; and
(ii) a decision in accordance with the Party’s laws.
(c) Each Party shall ensure, subject to appeal or further review as provided in its law, that any decision referred to in subparagraph (b) shall be implemented in accordance with its laws.
(d) The provisions of subparagraph (a) shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the WTO negotiations on disciplines on such measures pursuant to Article VI:4 of GATS, and shall amend this Article, as appropriate, after consultations among the Parties to bring the results of those negotiations into effect under this Agreement. The Parties note that the disciplines arising from such negotiations shall aim to ensure that qualification requirements and procedures, technical standards and licensing requirements and procedures are, inter alia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
4. In sectors in which a Party has undertaken specific commitments under Article 5, Article 6 and Article 7, pending the incorporation of the disciplines referred to in paragraph 3, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments under this Agreement in a manner which:
(a) does not comply with the criteria outlined in paragraph 3(a), (b) or (c); and
(b) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
5. In determining whether a Party is in conformity with its obligations under paragraph 3, account shall be taken of international standards of relevant international organisations applied by that Party. (4)
6. If authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of that Party shall:
(a) in the case of an incomplete application, at the request of the applicant, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application;
(c) at the request of the applicant, provide, without undue delay, information concerning the status of the application under consideration; and
(d) if an application is rejected, to the maximum extent possible, inform the applicant in writing, and without delay, the reasons for the rejection of the application and of the timeframe to appeal against the decision. An applicant should be permitted, within reasonable time limits, to resubmit an application.
7. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of any other Party.
8. Subject to its domestic laws and regulations, each Party shall permit service suppliers of the other Parties to use the business names under which they ordinarily trade in the territories of the other Parties and otherwise ensure that the use of business names is not unduly restricted.
Article 11. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
2. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted in the territory of a non-party, nothing in Article 3 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licences or certifications granted in the territory of another Party.
3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 2, whether existing or future, shall afford adequate opportunity for other interested Parties to negotiate their accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that education, experience, licences, or certifications obtained or requirements met in that other Party's territory should be recognised.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between other Parties in the application of its standards or criteria for the authorisation, licensing or certification of services suppliers, or a disguised restriction on trade in services.
5. If appropriate, recognition should be based on multilaterally agreed criteria. In appropriate cases, Parties shall work in cooperation with relevant inter-governmental and non- governmental organisations towards the establishment and adoption of common international standards and criteria for recognition and common international standards for the practice of relevant services trades and professions.
6. The Parties shall actively encourage their competent bodies to consult with each other and with relevant regional bodies after the entry into force of this Agreement to explore the possibilities for recognition of qualifications or professional recognition or registration. The Parties shall report periodically to the Joint Committee for review.
Article 12. Payments and Transfers
1. Except under the circumstances envisaged in Article 2 of Chapter 11 (General Provisions and Exceptions), a Party shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of a Party as a Member of the International Monetary Fund (IMF) under the IMF Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistent with its specific commitments regarding such transactions, except under Article 3 of Chapter 11 (General Provisions and Exceptions), or at the request of the IMF.
Article 13. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party’s obligations under Article 3, Article 5, Article 6 and Article 7.
2. If a Party’s monopoly supplier competes, either directly or through an affiliated company, in the supply of a service which is outside the scope of its monopoly rights and which is subject to that Party’s specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. If a Party has a reason to believe that a monopoly supplier of a service of another Party is acting in a manner inconsistent with paragraph 1 or 2, it may request the Party establishing, maintaining or authorising such supplier to provide specific information concerning the relevant operations.
4. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 14. Emergency Safeguard Measures
1. The Parties note the multilateral negotiations pursuant to Article X of GATS on the question of emergency safeguard measures based on the principle of non-discrimination. On the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purposes of discussing appropriate amendments to this Chapter so as to incorporate the results of such multilateral negotiations.
2. In the event that the implementation of the commitments made under this Agreement causes substantial adverse impact to a service sector of a Party before the conclusion of the multilateral negotiations referred to in paragraph 1, that affected Party may request to hold consultations with the other Party or Parties. The requested Party or Parties shall respond to such a request in good faith.
3. In undertaking such consultations, the Parties shall endeavour to reach a mutually agreed solution within a reasonable period of time.
4. The consulting parties shall notify the agreed solution to all other Parties as soon as practicable and by no later than the next meeting of the Joint Committee.
Article 15. Subsidies
1. Notwithstanding Article 2.2(c), where one Party considers that subsidies provided by another Party affecting trade in services nullify or impair any benefits it expected to receive under this Chapter, the Parties agree to consult with a view to reaching a mutually satisfactory solution.
2. Notwithstanding Article 2.2(c), following the conclusion of the negotiations on trade distorting subsidies on trade in services under Article XV of the GATS, the Parties agree to review the operation of this Article with a view to considering the possible modification or elimination of this Article.
Article 16. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier of another Party where the Party establishes that:
(a) the service is being supplied by an enterprise that is owned or controlled by persons of a non-party and the enterprise has no substantive business operations in the territory of any Party; or
(b) the service is being supplied by an enterprise that is owned or controlled by persons of the denying Party and the enterprise has no substantive business operations in the territory of any Party.
2. In the case of the supply of maritime transport services, a Party may deny the benefits of this Chapter to a service supplier of another Party if it establishes that the service is supplied by a vessel registered under the laws of a non-party, and by a person who operates or uses the vessel in whole or in part but is of a non-party.
Article 17. Contact Points and Transparency
1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of such contact point to the other Parties. The Parties shall notify each other promptly of any amendments to the details of their contact points.
2. Each Party shall publish promptly or otherwise make publicly available international agreements pertaining to or affecting trade in services to which it is a signatory.
3. To the extent of its capacity, each Party shall ensure that all measures of general application relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are published promptly through printed or electronic means, or otherwise. Information regarding these measures shall include, where applicable:
(a) requirements for authorisation, including for application and periodic renewal of such authorisation, and generally applicable terms and conditions of such authorisation;
(b) licensing requirements and procedures, including requirements, criteria and procedures for application and renewal, and applicable fees;
(c) qualification requirements and procedures, including requirements, criteria and procedures for application and renewal, and procedures for verification and assessment of qualifications, and applicable fees;
(d) technical standards;
(e) procedures relating to appeals or reviews of decisions concerning applications;
(f) procedures for monitoring or enforcing compliance with the terms and conditions of licences;
(g) an established timeframe for the processing of an application.
4. Each Party shall respond promptly to all requests by another Party for specific information on any measures of general application which pertain to or affect the operation of this Chapter or international agreements within the meaning of paragraph 2.
Article 18. Review of Commitments
1. The Parties shall review commitments on trade in services, with the first review within three years of entry into force of this Agreement and periodically thereafter as determined by the Joint Committee, with the aim of improving the overall commitments undertaken by the Parties under this Chapter so as to progressively liberalise trade in services among the Parties.
2. The Parties recognise the limited capacities of developing country Parties which will be taken into account in the review process. When improving the overall commitments undertaken by the Parties, appropriate flexibility will be given to the developing country Parties to opening fewer sectors, liberalising fewer types of transaction, progressively extending market access in line with their development situation and, when making access to their markets available to foreign service suppliers, attaching to such access conditions aimed at achieving the objectives referred to in Article 4.
Article 19. Joint Committee
The Parties shall, through the Joint Committee or a relevant subsidiary body, consult regularly to consider the implementation of their commitments under this Chapter.
Chapter 8. MOVEMENT OF NATURAL PERSONS
Article 1. Definitions
For the purposes of this Chapter:
temporary entry means entry into the territory of a Party by a natural person covered by this Chapter, without the intent to establish permanent residence; and
immigration formality means a visa, permit, pass or other document or electronic authority granting a natural person of a Party the right to enter, reside or work in the territory of the granting Party.
Article 2. Objectives
1. The objectives of this Chapter, which reflect the preferential trading relationship between the Parties, are to:
(a) provide for rights and obligations additional to those set out in Chapter 7 (Trade in Services) and Chapter 9 (Investment) in relation to the temporary entry of natural persons;
(b) facilitate the temporary entry of natural persons;
(c) establish transparent criteria and streamlined immigration formality application procedures for the temporary entry of natural persons to whom this Chapter applies; and
(d) protect the integrity of the Parties’ borders, and protect the domestic labour force and permanent employment in the territories of the Parties.
Article 3. Scope
1. This Chapter shall apply, as set out in each Party’s schedule of specific commitments in Annex 8-A (Schedules of Commitments on Movement of Natural Persons), to measures affecting the temporary entry of natural persons of a Party into the territory of any other Party.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of another Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of any other Party in its territory, including those measures necessary to protect the integrity of its territory and to ensure the orderly movement of natural persons across its borders, provided such measures are not applied in a manner so as to nullify or impair the benefits accruing to any other Party under this Agreement. (1)
Article 4. Grant of Temporary Entry
1. Each Party shall set out in Annex 8-A a schedule containing the specific commitments it undertakes for each of the categories of natural persons specified therein. These schedules shall specify the conditions and limitations (2) governing those commitments, including the requirements and length of stay, for each category of natural persons included in each Party’s schedule of specific commitments.
2. If a Party makes a commitment under paragraph 1, that Party shall grant temporary entry to natural persons of another Party provided that those natural persons:
(a) follow the prescribed application procedures for the immigration formality sought; and
(b) meet all relevant eligibility requirements for entry to the granting Party.
A Party may deny temporary entry to natural persons of another Party who do not comply with paragraph 2(a) and (b).
3. Temporary entry granted pursuant to this Chapter does not replace the requirements needed to carry out a profession or activity according to the domestic laws and regulations, and any applicable mandatory codes of practice made pursuant to domestic law, in force in the territory of the Party authorising the temporary entry.
Article 5. Requirements and Procedures Relating to the Movement of Natural Persons
1. In relation to the natural persons covered by Article 3, each Party shall endeavour to:
(a) establish or maintain immigration formalities, which can be granted prior to arrival in its territory, to allow natural persons of another Party entry into and temporary stay in its territory;
(b) expeditiously process complete applications for immigration formalities received from natural persons of another Party, including further immigration formality requests or extensions thereof;
(c) on request, and within a reasonable period after an application by a natural person of another Party requesting temporary entry is lodged, notify the applicant of:
(i) receipt of the application;
(ii) the status of the application; and
(iii) the decision concerning the application, including:
(A) if approved, the period of stay and other conditions; or
(B) if refused, the reasons for refusal and any avenues for review.
Article 6. Mutual Recognition
If the requirements for an immigration formality include requirements relating to authorisation, licensing or certification of natural persons, Article 11 of Chapter 7 (Trade in Services) shall apply, mutatis mutandis, to such authorisation, licensing or certification, but that obligation shall only apply to a Party in relation to the commitments they have made under Article 4.
Article 7. Contact Points
Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of that contact point to the other Parties. The Parties shall notify each other promptly of any amendments to the details of their contact point.
Article 8. Application of Chapter 14 (Consultations and Dispute Settlement)
1. The Parties shall endeavour to settle any differences arising out of the implementation of this Chapter through consultations.
2. A Party shall not have recourse to Chapter 14 (Consultations and Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice on the part of the granting Party; and
(b) the natural persons affected have exhausted all available domestic remedies regarding the particular matter.
3. The remedies referred to in paragraph 2(b) shall be deemed to be exhausted if a final determination in the matter has not been issued within one year after the date of the institution of proceedings for such remedy, and the failure to issue a determination is not attributable to delays caused by the natural persons concerned.
Article 9. Review of Commitments
The Parties shall review commitments for the temporary entry of natural persons, with the first review taking place within three years of entry into force of this Agreement and periodically thereafter as determined by the Joint Committee, with the aim of improving the overall commitments undertaken by the Parties under this Chapter so as to progressively liberalise the movement of natural persons among the Parties.
Chapter 9. Investment
Article 1. Definitions
For the purposes of this Chapter, the term:
Covered investment means with respect to a Party, an investment in its territory of an investor of another Party, in existence as of the date of entry into force of this Agreement, or established, acquired or expanded thereafter, which has been admitted by the host Party subject to its relevant laws, regulations and policies;
Freely usable currency means freely usable currency as determined under the IMF Articles of Agreement and amendments thereafter, or any currency that is used to make international payments and is widely traded in international principal exchange markets;
Investment means every kind of asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) An enterprise;
(b) Tangible or intangible, movable or immovable property and related property rights such as mortgages, liens or pledges; (1)
(c) Shares, stock and other forms of equity participation in an enterprise;
(d) Bonds, debentures, other debt instruments, and loans; (2)
(e) Futures, options, and other derivatives;
(f) Intellectual property rights;
(g) Turnkey, construction, management, production and revenue sharing contracts, concessions and other similar contracts; and
(h) Licences, authorisations, permits and similar rights conferred pursuant to a Party's domestic law. (3)
An investment does not, however, include:
(a) Claims to payment resulting solely from the commercial sale of goods and services unless it is a loan that has the characteristics of an investment;
(b) A bank letter of credit; or
(c) The extension of credit in connection with a commercial transaction, such as trade financing.
For the purposes of the definition of investment in this chapter, returns that are invested shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their character as investments;
Investor of a Party means a Party, or a natural person or an enterprise of a Party that has made or seeks to make an investment in the territory of another Party; (4)
Measures adopted or maintained by a Party means any measure taken by:
(a) Central, state, regional or local Government or authorities; or
(b) Non-governmental bodies in the exercise of powers delegated by central, state, regional or local Governments or authorities;
Permanent resident of a Party means a natural person who has permanent residence status in a Party in accordance with its laws and regulations;
TRIMS Agreement means the Agreement on Trade-Related Investment Measures, in Annex 1A to the WTO Agreement; and