(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Joint Committee shall be informed to the fullest extent possible of measures taken under subparagraphs 1(b) and (c) and of their termination.”
2. Subparagraph 2(e) of Article 11 of the AJCEP Agreement shall be replaced by the following:
“(e) adopt:
(i) the Implementing Regulations referred to in Rule 11 of Annex 4;
(ii) procedures on the implementation of Annex 2 by the Parties after its amendment, upon recommendation of the Sub-Committee on Rules of Origin referred to in Article 37. These procedures shall address, inter alia,the date(s) on which the amended Annex 2 shall be applicable to applications for, and the issuance of, Certificates of Origin in accordance with Annex 4;
(iii) amendments to this Agreement pursuant to paragraph 5 of Article 77; and
(iv) any necessary decisions; and”
4. Amendment to Chapter 6 (Trade In Services) of the AJCEP Agreement
Chapter 6 of the AJCEP Agreement shall be replaced by the following:
Chapter 6. Trade In Services
50.1. Definitions
For the purposes of this Chapter, the term:
(a) “a service 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;
(b) “aircraft repair and maintenance services” means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from services and does not include so-called line maintenance;
(c) “commercial presence” means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(d) “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 may be made or tickets may be issued;
(e) “direct taxes” comprises all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;
(f) “juridical person” means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(g) “juridical person of another Party” means a juridical person which is either:
(i) constituted or otherwise organised under the law of that other Party, and is engaged in substantive business operations in the territory of that other Party or any other Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of that other Party; or
(B) juridical persons of that other Party identified under subparagraph (i);
(h) A juridical person is:
(i) “owned” by persons of a Party if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Party;
(ii) “controlled” by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions; and
(iii) “affiliated” with another person when it controls, or is controlled by, that other person; or when it and the other person are both controlled by the same person;
(i) “measure” means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
Note: “measure” shall include taxation measures to the extent covered by the GATS.
(j) “measures by a Party” means measures taken by:
(i) central, regional or local governments and authorities of a Party; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities of a Party;
(k) “measures by a Party affecting trade in services” includes measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Party to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of another Party;
(l) “monopoly supplier of a service” means any person, public or private, which 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;
(m) “natural person of another Party” means a natural person who resides in the territory of that other Party or elsewhere, and who under the law of that other Party:
(i) is a national of that other Party; or
(ii) has the right of permanent residence in that other Party, in the case of a Party which accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, as notified to all other Parties after the entry into force of the First Protocol to Amend the Agreement on Comprehensive Economic Partnership Among Japan and Member States of the Association of Southeast Asian Nations (hereinafter referred to as “the First Protocol”), provided that no Party is obliged to accord to such permanent residents treatment more favourable than would be accorded by that other Party to such permanent residents. Such notification shall include the assurance to assume, with respect to the permanent residents, in accordance with its laws and regulations, the same responsibilities that other Party bears with respect to its nationals;
Note: In the case of the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Kingdom of Thailand, the Socialist Republic of Viet Nam and Japan, natural person of another Party shall be limited to a natural person who resides in the territory of that other Party or elsewhere and who under the law of that other Party is a national of that other Party. Therefore, in line with the principle of reciprocity, this Chapter shall not apply to the permanent residents of the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Kingdom of Thailand, the Socialist Republic of Viet Nam and Japan. Once any of these Parties enacts its laws on the treatment of permanent residents of another Party or non-Party, there shall be negotiations among the Parties on the issue of whether to include permanent residents in the coverage of natural person under this Chapter in respect of that Party.
(n) “person” means either a natural person or a juridical person;
(o) “sector” of a service means:
(i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party’s Schedule of Specific Commitments; or
(ii) otherwise, the whole of that service sector, including all of its subsectors;
(p) “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;
(q) “services” includes any service in any sector except services supplied in the exercise of governmental authority;
(r) “service consumer” means any person that receives or uses a service;
(s) “service of another Party” means a service which is supplied:
(i) 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 which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) 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;
(t) “service supplier” means any person that supplies a service;
Note: Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Agreement. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the territory where the service is supplied.
(u) “supply of a service” includes the production, distribution, marketing, sale and delivery of a service;
(v) “trade in services” means the supply of a service:
(i) from the territory of a Party into the territory of any other Party (“crossborder supply”);
(ii) in the territory of a Party to the service consumer of any other Party (“consumption abroad”);
(iii) by a service supplier of a Party, through commercial presence in the territory of any other Party (“commercial presence”);
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of any other Party (“presence of natural persons”); and
(w) “traffic rights” means the rights for scheduled and non-scheduled services to operate and/or to 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.
50.2. Scope
1. This Chapter shall apply to measures by a Party affecting trade in services.
2. This Chapter shall not apply to:
(a) government procurement;
(b) cabotage in maritime transport services;
(c) 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; and
(iii) computer reservation system services; and
(d) measures by a Party affecting natural persons of another Party seeking access to the employment market of the former Party, or measures regarding nationality or citizenship, or residence or employment on a permanent basis.
3. The Annex A to Chapter 6 provides for supplementary provisions to this Chapter on financial services, including scope and definitions.
4. The Annex B to Chapter 6 provides for supplementary provisions to this Chapter on telecommunications services, including scope and definitions.
50.3. Most-Favoured-Nation Treatment
1. Each Party shall accord to services and service suppliers of another Party treatment no less favourable than that it accords to like services and service suppliers of any other Party or a non-Party.
2. Paragraph 1 shall not apply to any measure by a Party with respect to sectors, subsectors or activities, as set out in Annex 7.
3. Notwithstanding paragraphs 1 and 2, the Parties listed in Annex 8 shall be exempted from paragraphs 1 and 2 and shall endeavour to consider according to services and service suppliers of another Party treatment no less favourable than that they accord to like services and service suppliers of any other Party or a non-Party. Any decision of a Party with regard to this paragraph shall not be subject to dispute settlement procedures provided for in Chapter 9.
50.4. Transparency
1. The Parties recognise that transparent measures governing trade in services are important in facilitating the ability of service suppliers to gain access to, and operate in, each other’s markets. Each Party shall promote regulatory transparency in trade in services.
Publication
2. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force:
(a) all relevant measures of general application affecting trade in services; and
(b) all international agreements pertaining to, or affecting, trade in services to which
that Party is a party.
3. To the extent possible, each Party shall make the measures and international agreements of the kind referred to in paragraph 2 available on the internet.
4. Where publication referred to in paragraphs 2 and 3 is not practicable, such information shall be made otherwise publicly available.
5. To the extent possible and required under its laws and regulations, each Party shall provide a reasonable opportunity for comments by interested persons of the Parties on any regulation of general application affecting trade in services that it proposes to adopt, amend or repeal, before adoption, amendment or repeal, and publish the comments received from the public and results of its consideration to the comments.
Note: For greater certainty, a Party may consolidate the comments and the results, and may publish them in a separate document from the one that sets forth the final text of the proposed regulation.
Contact Points
6. Each Party shall designate a contact point to facilitate communications among the Parties on any matter covered by this Chapter. Upon the request of another Party, the contact point shall:
(a) identify the office or official responsible for the relevant matter; and
(b) assist as necessary in facilitating communications with the requesting Party with respect to that matter.
7. Each Party shall respond promptly to all requests by any other Party for specific information on:
(a) any measures referred to in subparagraph 2(a) or international agreements referred to in subparagraph 2(b); and
(b) any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services covered by the Party’s specific commitments under this Chapter, whether or not that other Party has been previously notified of the new or changed law, regulation or administrative guideline.
8. Each Party shall, to the extent possible and required under its laws and regulations, respond to enquiries from interested persons of the Parties regarding any relevant measure of general application of the Party relating to the subject matter of this Chapter.
9. Each Party shall prepare a non-legally binding list (transparency list) on laws and, to the extent possible, other measures at the central government level, which are inconsistent with the obligations under Articles 50.3, 50.17 and 50.18. Such a list shall cover (i) the sectors where specific commitments are undertaken in this Agreement and/or in any other agreements in force on the date of entry into force of the First Protocol pertaining to or affecting trade in services to which the Party preparing the list is a party and (ii) to the extent possible, other sectors that are not included in the sectors referred to in (i), shall be exchanged among the Parties and made public within six (6) years for newer ASEAN Member States and four (4) years for the remaining Parties, from the date of entry into force of the First Protocol, and may be subject to future review and revision as necessary. This list shall not form an integral part of this Agreement and shall not be subject to dispute settlement procedures provided for in Chapter 9. The list shall include the following elements:
(a) sector and sub-sector or matter;
(b) type of inconsistency (i.e. Most-Favoured-Nation Treatment, Market Access and/or National Treatment);
(c) legal source or authority of the measure; and
(d) succinct description of the measure.
Note: Nothing in this paragraph shall be construed to oblige any Party to enter into negotiations with any other Party in respect of any matter relating to the list. The list under this paragraph will be made solely for the purposes of transparency, and shall not be construed to affect the rights and obligations of a Party under this Chapter. For greater certainty, the information contained in this list will also not prevent Parties from introducing new measures or changes. Any review or revision under this paragraph will be solely for the purposes of updating such list.
10. In preparation of such list, a Party, upon request of another Party, may provide technical assistance to the requesting Party, subject to the available resources.
50.5. Domestic Regulation
1. In sectors where specific commitments are undertaken under Articles 50.17 through 50.23, 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. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) Subparagraph 2(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. Where authorisation is required for the supply of a service on which a specific commitment under this Chapter has been made, the competent authorities of each Party shall:
(a) in the case of an incomplete application, at the request of the applicant, identify, where practicable, all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) at the request of the applicant, provide, without undue delay, information concerning the status of the application; and
(c) if an application is terminated or denied, to the extent possible and required under its laws and regulations, inform the applicant, in writing and without delay, of the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
4. The competent authorities of a Party shall endeavour, in accordance with the laws and regulations of the Party, to establish standards for taking administrative decisions in response to submitted applications. The competent authorities shall endeavour to:
(a) make such standards as specific as possible; and
(b) make such standards publicly available except when it would extraordinarily raise administrative difficulties for the Party.
5. The competent authorities of a Party shall endeavour, in accordance with the laws and regulations of the Party, to:
(a) establish standard periods of time between the receipt of applications by the competent authorities and the administrative decisions taken in response to submitted applications; and
(b) make publicly available such periods of time, if established.
6. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements of service suppliers of another Party do not constitute unnecessary barriers to trade in services, each Party shall aim to ensure that such requirements 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.
7. (a) In sectors in which a Party has undertaken specific commitments subject to any terms, limitations, conditions or qualifications set out therein, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair its obligation under this Chapter in a manner which:
(i) does not comply with the criteria outlined in subparagraph 6(a), (b) or
(c); and
(ii) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under subparagraph 7(a), account shall be taken of international standards of relevant international organisations applied by that Party.
Note: The term “relevant international organisations” refers to international bodies whose membership is open to the relevant bodies of at least all the Parties.
8. 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.
9. If the results of the negotiations related to paragraph 4 of Article VI of the GATS enter into effect, this Article shall be amended, as appropriate, after consultations among the Parties, to bring those results into effect under this Agreement.
50.6. Administrative Guidance
1. Where a competent authority of the central government of a Party renders administrative guidance with regard to any matter covered by this Chapter, such competent authority is encouraged to ensure that the administrative guidance does not exceed the scope of its competence. The competent authority is also encouraged to ensure that the administrative guidance does not require the person concerned to comply with the administrative guidance without voluntary cooperation of such person.
2. Such competent authority is encouraged to ensure, in accordance with the laws and regulations of its Party, that the person concerned is not treated unfavourably solely on account of non-compliance of such person with such administrative guidance.
3. Such competent authority is encouraged to provide, in accordance with the laws and regulations of its Party, to the person concerned in writing, upon the request of such person, the purposes and contents of the administrative guidance.
4. For the purposes of this Article, the term “administrative guidance” means any guidance, recommendation or advice by a competent authority of the central government of a Party which requires a person to do or refrain from doing any act but does not create, impose limitations on, or in any way affect, rights and obligations of such person in order to pursue administrative objectives.
50.7. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its respective standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to requirements of paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in another Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the Parties concerned or may be accorded autonomously.
2. Two (2) or more Parties may enter into, or encourage their relevant competent bodies to enter into, negotiations on recognition of qualification requirements, qualification procedures, licensing and/or registration procedures for the purposes of fulfilment of their respective standards or criteria for the authorisation, licensing or certification of service suppliers.
3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, 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 any other Party to demonstrate that education, experience, licences, or certifications obtained or requirements met in the territory of that other Party should be recognised.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries 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. Where a Party recognises, by an agreement or arrangement between the Party and another Party or a non-Party or unilaterally, the education or experience obtained, requirements met, or licences or certifications granted in that other Party or the non-Party, nothing in Article 50.3 shall be construed to require the former Party to accord such recognition to the education or experience obtained, requirements met, or licences or certifications granted in the other Parties.
50.8. 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 50.3 and specific commitments.
2. Where a Party’s monopoly supplier competes, either directly or through an affiliated company, in the supply of a service 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 any other Party is acting in a manner inconsistent with paragraph 1 or 2, the former Party may request that other 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.