(iii) “public entity” means:
(A) a government, a 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, not including an entity principally engaged in supplying financial services on commercial terms; or
(B) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions; and
(iv) “self-regulatory organisation” means:
(A) in the case of Japan, any nongovernmental body, including any securities or futures exchange or market, clearing agency, or other organisation or association that exercises delegated regulatory or supervisory authority over financial service suppliers; and
(B) in the case of an ASEAN Member State, any non-governmental body, including any securities or futures exchange or market, clearing or payment settlement agency, or any other organisation or association that is recognised by legislation as a self-regulatory organisation and exercises regulatory or supervisory authority over financial service suppliers pursuant to legislation or delegation from central, regional or local governments or authorities;
(b) For the purposes of subparagraph (q) of Article 50.1, “services supplied in the exercise of governmental authority” means the following:
(i) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(ii) activities forming part of a statutory system of social security or public retirement plans; and
(iii) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government;
(c) For the purposes of subparagraph (q) of Article 50.1, if a Party allows any of the activities referred to in subparagraph (b)(ii) or (iii) to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, “services” shall include such activities; and
(d) The term “a service supplied in the exercise of governmental authority” as defined in subparagraph (a) of Article 50.1 shall not apply to services covered by this Annex.
A.2. Transparency
1. The Parties recognise that regulatory transparency in financial services is important in facilitating the ability of financial service suppliers to gain access to and operate in each other’s market.
2. Each Party shall endeavour to take such reasonable measures as may be available to it to ensure that the rules of general application adopted or maintained by self-regulatory organisations in the Party are promptly published or otherwise made publicly available.
3. Each Party shall, to the extent possible, maintain or establish appropriate mechanisms for responding to enquiries from interested persons of another Party regarding measures of general application to which this Annex applies.
Note: The Parties confirm their shared understanding that interested persons in this Article should only be persons whose direct financial interest could be potentially affected by the adoption of the regulations of general application.
4. Competent authorities of each Party shall use their best endeavours to make available to interested persons of another Party their requirements, including any documentation required, for completing applications relating to the supply of financial services.
5. On the request of an applicant in writing, competent authorities of a Party shall inform the applicant of the status of its application. If an authority requires additional information from the applicant, it shall notify the applicant within a reasonable period of time.
6. (a) A competent authority of each Party shall make administrative decisions on a completed application of a financial service supplier of another Party seeking to supply a financial service in that Party’s territory within one hundred eighty (180) days and shall notify the applicant of the decision within a reasonable period of time. An application shall not be considered complete until all relevant proceedings are conducted and the competent authority considers all necessary information is received.
(b) Where it is not practicable for a decision to be made within one hundred eighty (180) days, the competent authority shall notify the applicant without delay and shall endeavour to make the decision within a reasonable period of time thereafter.
7. On the request of an unsuccessful applicant in writing, a competent authority of a Party that has denied an application shall endeavour to inform the applicant of the reasons for denial of the application.
A.3. Transfers of Information and Processing of Information
1. A Party shall not take measures that prevent:
(a) transfers of information including transfers of data by electronic means necessary for the conduct of the ordinary business of a financial service supplier;
(b) the processing of financial information including transfers of data by electronic means necessary for the conduct of the ordinary business of a financial service supplier; or
(c) transfers of equipment necessary for the conduct of the ordinary business of a financial service supplier, subject to importation rules consistent with international agreements.
2. Nothing in paragraph 1:
(a) restricts the right of a Party to protect personal data, personal privacy and the confidentiality of individual records and accounts including in accordance with its domestic laws and regulations so long as such right shall not be used as a means of avoiding the commitments or obligations of the Party under this Agreement;
(b) prevents a competent authority of a Party for regulatory or prudential reasons from requiring a financial service supplier in its territory to comply with domestic regulations in relation to data management and storage and system maintenance, as well as to retain within its territory copies of records; or
(c) shall be construed to require a Party to allow the cross-border supply or the consumption abroad of services in relation to which it has not made specific commitments, including to allow non-resident suppliers of financial services to supply, as a principal, through an intermediary or as an intermediary, the provision and transfer of financial information and financial data processing as referred to in subparagraph 2(a)(i)(O) of Article A.1.
A.4. Domestic Regulation
1. Notwithstanding any other provisions of Chapter 6, including Annexes A and B to Chapter 6 and Annexes 6 through 8, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the Party’s financial system. Where such measures do not conform with the provisions of Chapter 6, they shall not be used as a means of avoiding the commitments or obligations of the Party under that Chapter.
2. Nothing in Chapter 6, including Annexes A and B to Chapter 6 and Annexes 6 through 8, shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
A.5. Recognition of Prudential Measures
Where a Party recognises, by an agreement or arrangement, prudential measures of a non-Party or of any international regulatory body in determining how the Party’s measures relating to financial services shall be applied, that Party shall afford adequate opportunity for the other Parties to negotiate their accession to such an agreement or arrangement, or to negotiate a comparable agreement or arrangement with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement. Where a Party accords such recognition autonomously, it shall afford adequate opportunity for the other Parties to demonstrate that such circumstances exist.
A.6. Settlement of Disputes
Arbitral tribunals established under Article 64 for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
Annex B to Chapter 6. Telecommunications Services
B.1. Scope
1. This Annex shall apply to measures by a Party affecting trade in public telecommunications transport networks and services.
2. This Annex shall not apply to measures affecting broadcasting services as defined in the laws and regulations of each Party.
3. Nothing in this Annex shall be construed to:
(a) require a Party to authorise a service supplier of another Party to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services other than as provided for in its Schedule of Specific Commitments in Annex 6; or
(b) require a Party (or require a Party to oblige service suppliers under its jurisdiction) to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services not offered to the public generally.
B.2. Definitions
For the purposes of this Annex, the term:
(a) “cost-oriented” means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
(b) “end user” means a subscriber to or a final consumer of public telecommunications transport networks or services, including a service supplier other than a supplier of public telecommunications transport networks or services;
(c) “essential facilities” means facilities of a public telecommunications transport network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(d) “leased circuits” means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, particular users;
(e) “major supplier” means a supplier which has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for public telecommunications transport networks or services as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
(f) “non-discriminatory” means treatment no less favourable than that accorded to any other user of like public telecommunications transport networks or services in like circumstances;
(g) “personal data” means any information about an identified or identifiable natural person;
(h) “public telecommunications transport network” means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points;
(i) “public telecommunications transport service” means any telecommunications transport service required, explicitly or in effect, by a Party to be offered to the public generally. Such services may include, inter alia, telegraph, telephone, telex and data transmission typically involving transmission of customer-supplied information between two or more defined points without any end-to-end change in the form or content of the customer’s information;
(j) “telecommunications” means the transmission and reception of signals by any electromagnetic means;
(k) “telecommunications regulatory body” means any body or bodies in the territory of a Party which is or are responsible, under the laws and regulations of the Party, for the regulation of telecommunications; and
(l) “users” means end users or suppliers of public telecommunications transport networks or services.
B.3. Access and Use
1. Each Party shall ensure that any service supplier of another Party is accorded access to and use of public telecommunications transport networks and services in a timely fashion and on transparent, reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule of Specific Commitments in Annex 6. This obligation shall be applied, inter alia, through paragraphs 2 through 6.
2. Each Party shall ensure that service suppliers of another Party have access to and use of any public telecommunications transport network or service offered within or across the border of that Party, including private leased circuits, and to this end shall ensure, subject to paragraphs 5 and 6, that such suppliers are permitted:
(a) to purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to supply their services;
(b) to interconnect private leased or owned circuits with public telecommunications transport networks and services or with circuits leased or owned by other service suppliers; and
(c) to use operating protocols of their choice in the supply of any service, other than as necessary to ensure the availability of telecommunications transport networks and services to the public generally.
3. Each Party shall ensure that service suppliers of another Party may use public telecommunications transport networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of any Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary:
(a) to ensure the security and confidentiality of messages; or
(b) to protect the personal data of end users of public telecommunications transport networks or services subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications transport networks and services other than as necessary:
(a) to safeguard the public service responsibilities of suppliers of public telecommunications transport networks and services, in particular their ability to make their networks or services available to the public generally; or
(b) to protect the technical integrity of public telecommunications transport networks or services.
6. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications transport networks and services may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with public telecommunications transport networks and services;
(b) requirements, where necessary, for the inter-operability of public telecommunications transport services and to encourage the achievement of the goals set out in Article B.17;
(c) type approval of terminal or other equipment which interfaces with public telecommunications transport networks and technical requirements relating to the attachment of such equipment to such networks;
(d) restrictions on interconnection of private leased or owned circuits with public telecommunications transport networks or services or with circuits leased or owned by other service suppliers; or
(e) notification, permit, registration and licensing.
B.4. Number Portability
Each Party shall endeavour to ensure that suppliers of public telecommunications transport networks or services in its territory provide number portability for mobile services in accordance with its laws and regulations, to the extent technically and economically feasible, on a timely basis and on reasonable terms and conditions.
B.5. Competitive Safeguard
1. Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 shall include, in particular:
(a) engaging in anti-competitive crosssubsidisation;
(b) using information obtained from competitorswith anti-competitive results; and
(c) not making available to other suppliers of public telecommunications transport networks or services, on a timely basis, technical information about essential facilities and commercially relevant information which are necessary for them to supply services.
B.6. Treatment by Major Suppliers
Each Party shall ensure that a major supplier in its territory accords to suppliers of public telecommunications transport networks and services of another Party treatment no less favourable than that such major supplier accords in like circumstances to its subsidiaries and affiliates, or any non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates or quality of like telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
B.7. Resale
Each Party shall ensure that any major supplier in its territory does not impose unreasonable or discriminatory conditions or limitations on the resale of the public telecommunications transport services by suppliers of public telecommunications transport networks or services of another Party.
B.8. Interconnection
1. Each Party shall ensure that suppliers of public telecommunications transport networks in its territory provide interconnection with the suppliers of public telecommunications transport networks or services of another Party to the extent provided for in its laws and regulations.
2. Each Party shall ensure that a major supplier which has control over essential facilities in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications transport networks and services of another Party at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including technical standards and specifications) and rates and of a quality no less favourable than that provided for its own like services, or for like services of non-affiliated service suppliers or for its subsidiaries or other affiliates;
(b) in a timely fashion and on terms, conditions (including technical standards and specifications) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier of public telecommunications transport networks or services of another Party need not pay for network components or facilities that it does not require for the services to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of suppliers of public telecommunications transport networks and services, subject to charges that reflect the cost of construction of necessary additional facilities.
3. Each Party shall ensure that suppliers of public telecommunications transport networks or services of another Party may interconnect their facilities and equipment with those of major suppliers which have control over essential facilities in its territory pursuant to at least one of the following options:
(a) a reference interconnection offer, approved by the Party’s telecommunications regulatory body, containing the rates, terms and conditions that the major supplier which has control over essential facilities offers generally to suppliers of public telecommunications transport services;
(b) the terms and conditions of an existing interconnection agreement; or
(c) a new interconnection agreement through commercial negotiation.
4. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available.
5. Each Party shall ensure that a major supplier in its territory makes publicly available either its interconnection agreements or reference interconnection offer.
6. Each Party shall ensure that a major supplier which has control over essential facilities does not use or provide commercially sensitive or confidential information on suppliers of public telecommunications transport networks or services or end users thereof, which was acquired through its interconnection business with telecommunications facilities of the suppliers of the public telecommunications transport networks or services, for purposes other than such interconnection business.
B.9. Provisioning and Pricing of Leased Circuit Services
Each Party shall ensure that a major supplier which has control over essential facilities in its territory provides suppliers of public telecommunications transport networks and services of another Party with leased circuit services that are public telecommunications transport networks or services on terms and conditions, and at rates, that are reasonable, non-discriminatory and transparent.
B.10. Co-location
Each Party shall ensure, in accordance with its laws and regulations, that a major supplier which has control over essential facilities in its territory allows suppliers of public telecommunications transport networks or services of another Party to locate their equipment within the major supplier’s buildings on terms and conditions, including technical feasibility and space availability where applicable, and at cost-oriented rates, that are reasonable, nondiscriminatory (including with respect to timeliness) and transparent.
B.11. Independent Telecommunications Regulatory Body
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of telecommunications services.
Note: For greater certainty, “supplier of telecommunications services” is not limited to a supplier of public telecommunications transport networks or services.
2. Each Party shall ensure that the decisions of, and the procedures used by, its telecommunications regulatory body are impartial with respect to all market participants.
B.12. Universal Service
Each Party has the right to define the kind of universal service obligations it wishes to maintain. Such obligations shall not be regarded as anticompetitive per se, provided that they are administered in a transparent, non-discriminatory and competitively neutral manner, and are not more burdensome than necessary for the kind of universal service defined by the Party.
B.13. Licensing
1. Where a licence, concession, permit, registration or other type of authorisation is required for the supply of public telecommunications transport networks or services, each Party shall make publicly available:
(a) all the licensing or other authorisation criteria and procedures, and the period of time normally required to reach a decision concerning an application for a licence, concession, permit, registration or other type of authorisation; and
(b) the terms and conditions of individual licences, concessions, permits, registrations or other type of authorisations it has issued.
2. The competent authority of a Party shall notify an applicant of the outcome of its application without undue delay after a decision has been taken. In case a decision is taken to deny an application for a licence, concession, permit, registration or other type of authorisation, the competent authority of the Party shall make known to the applicant, upon request, the reason for the denial.
B.14. Allocation and Use of Scarce Resources
1. Each Party shall carry out its procedures for the allocation and use of scarce resources related to telecommunications, including frequencies, and numbers in an objective, timely, transparent and nondiscriminatory manner.
2. Each Party shall make publicly available the current state of allocated frequency bands, but shall not be required to provide detailed identification of frequencies allocated for specific government uses.
3. A Party’s measures allocating and assigning spectrum and managing frequency are not measures that are per se inconsistent with Article 50.17. Accordingly, each Party retains the right to establish and apply spectrum and frequency management policies that have the effect of limiting the number of suppliers of public telecommunications transport networks or services, provided that it does so in a manner consistent with other provisions of Chapter 6. Such right includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability.
B.15. Transparency
Each Party shall ensure that relevant information on conditions affecting access to and use of public telecommunications transport networks and services is publicly available, including: tariffs and other terms and conditions of service; specifications of technical interfaces with such networks and services; information on bodies responsible for the preparation and adoption of standards affecting such access and use; conditions applying to attachment of terminal or other equipment; and notifications, permit, registration or licensing requirements, if any.
B.16. Settlement of Disputes
1. Each Party shall ensure that suppliers of public telecommunications transport networks or services of another Party may have timely recourse to its telecommunications regulatory body or dispute settlement body to settle disputes arising under this Annex in accordance with its laws and regulations.
2. Each Party shall ensure, in accordance with its laws and regulations, that any supplier of public telecommunications transport networks or services aggrieved by a determination or decision of its relevant telecommunications regulatory body may petition that body for reconsideration of that determination or decision. No Party shall permit such a petition to constitute grounds for non-compliance with such determination or decision of the said body unless an appropriate authority suspends or withdraws such determination or decision.
3. Each Party shall ensure that any supplier of public telecommunications transport networks or services aggrieved by a final determination or decision of its relevant telecommunications regulatory body may obtain review of such determination or decision in accordance with its laws and regulations.
B.17. Relation to International Organisations
The Parties recognise the importance of international standards for global compatibility and inter-operability of telecommunications networks and services and undertake to promote such standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.
B.18. Transitional Arrangements
Noting each Party’s different stage of development, and noting each Party’s commitments under the GATS, a Party may delay the application of the following Articles as indicated in the Attachment to this Annex on Transitional Arrangements:
(a) Article B.5 Competitive Safeguard;
(b) Article B.7 Resale;
(c) Article B.8 Interconnection;
(d) Article B.9 Provisioning and Pricing of Leased Circuit Services;
(e) Article B.10 Co-location;
(f) Article B.11 Independent Telecommunications Regulatory Body;
(g) Article B.13 Licensing; and
(h) Article B.14 Allocation and Use of Scarce Resources.
5. Incorporation of Chapter 6 Bis (Movement of Natural Persons) Into the AJCEP Agreement
The following Chapter on Movement of Natural Persons shall be inserted into the AJCEP Agreement as Chapter 6 bis: