(e) measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(f) measures by a Party means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
In fulfilling its obligations and commitments under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies within its territory;
(g) natural person of a Party (11) means:
(i) For the UAE, a national or a permanent resident (12) of the UAE;
(ii) For Indonesia, a natural person who is Indonesian national as defined in the Indonesia Law No. 12/2006;
(h) services include any service in any sector except services supplied in the exercise of governmental authority;
(i) 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;
(j) service supplier of a Party means any natural or juridical person of a Party that supplies a service; (13)
(k) supply of a service includes the production, distribution, marketing, sale and delivery of a service.
Article 8.2. Scope
1. The Parties reaffirm their respective commitments under the WTO General Agreement on Trade in Services (“GATS”) and hereby lay down the arrangements for the progressive liberalisation of trade in services between them in conformity with Article V of the GATS.
2. This Chapter shall apply to measures by the Parties affecting trade in services, which is defined as the supply of a service through the following modes:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to the service consumer of the other Party;
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party;
(d) by a service supplier of a Party, through presence of natural persons in the territory of the other Party.
3. This Chapter shall not apply to:
(a) laws, regulations, or requirements governing the procurement by government agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale;
(b) services supplied in the exercise of governmental authority;
(c) subsidies or grants provided by a Party, including government- supported loans, guarantees, and insurance;
(d) measures affecting natural persons of a Party seeking access to the employment market of the other Party, or measures regarding citizenship, residence or employment on a permanent basis;
(e) measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, except as provided for in paragraph 3 of the GATS Annex on Air Transport Services. The definitions of paragraph 6 of the GATS Annex on Air Transport Services are hereby incorporated into and made part of this Chapter, mutatis mutandis; and
(f) measures affecting cabotage in maritime transport services.
4. Nothing in this Chapter or its annexes shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment. (14)
5. The provisions of this Chapter shall be read with Annex 8B (Financial Services) and Annex 8C (Movement of Natural Persons), which are hereby incorporated into and made part of this Agreement.
Article 8.3. Most-Favoured Nation Treatment
1. Where a Party schedules commitments in accordance with Article 8.7 (Schedules of Specific Commitments), with respect to the services sectors inscribed in its Schedule of Specific Commitments, and subject to any conditions and qualifications set out therein, it shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of any non-party.
2. The obligations of paragraph 1 shall not apply to: (a) treatment granted under other existing or future agreements concluded by one of the Parties and notified under Article V or V bis of the GATS; and (b) treatment granted under measures benefiting from the coverage of a MFN exemption listed in accordance with Article II.2 of the GATS or under measures providing for recognition of qualifications or licences or prudential measures in accordance with Article VII of GATS or its Annex on Financial Services.
3. The rights and obligations of the Parties in respect of advantages accorded to adjacent countries shall be governed by paragraph 3 of Article II of the GATS, which is hereby incorporated into and made part of this Chapter.
4. If, after the entry into force of this Agreement, a Party enters into any agreement on trade in services with a non-Party, it shall give consideration, upon request by the other Party, to negotiate the incorporation into this Agreement of treatment no less favourable than that provided under the agreement with the non-Party. The Parties shall take into consideration the circumstances under which a Party enters into any agreement on trade in services with a non- Party.
5. Notwithstanding paragraph 1 and 4, each Party reserves the right to adopt or maintain any measure that accords differential treatment to services and service suppliers of: (a) In the case of Indonesia, any other ASEAN member state taken under any agreement on the liberalization of trade in goods or services or investment as part of a wider process of economic integration between or among ASEAN member states; and (b) In the case of the UAE, any other member state taken under the agreement between the member states of the Gulf Cooperation Council and the agreement between the Member States of the Greater Arab Free Trade Area (GAFTA).
Article 8.4. Market Access
1. Where a Party schedules commitments in accordance with Article 8.7 (Schedules of Specific Commitments), with respect to market access through the modes of supply identified in paragraph 2 of Article 8.2 (Scope) and the services sectors inscribed in its Schedule of Specific Commitments, it shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments.
2. In sectors where market access commitments are undertaken, the measures which 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 of Specific Commitments, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on 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;
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that 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) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 8.5. National Treatment
1. Where a Party schedules commitments in accordance with Article 8.7 (Schedules of Specific Commitments), with respect to the services sectors inscribed in its Schedule of Specific Commitments, and subject to any conditions and qualifications set out therein, it shall accord to services and service suppliers of the other 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 the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment by a Party shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 8.6. Additional Commitments
The Parties may also negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 8.4 (Market Access) and 8.5 (National Treatment), including those regarding qualification, standards or licensing matters. Such commitments shall be inscribed in that Party's Schedule of Specific Commitments in accordance with Article 8.7 (Schedules of Specific Commitments).
Article 8.7. Schedules of Specific Commitments
1. Each Party shall set out in a schedule, called its Schedule of Specific Commitments, the specific commitments it undertakes in accordance with Articles 8.4 (Market Access), 8.5 (National Treatment), and Article 8.6 (Additional Commitments).
2. With respect to sectors where such commitments are undertaken, each Schedule of Specific Commitments shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments; and
(d) where appropriate, the time-frame for implementation of such commitments.
3. Measures inconsistent with both Articles 8.4 (Market Access) and 8.5 (National Treatment) shall be inscribed in the column relating to Article 8.4 (Market Access). In this case, the inscription will be considered to provide a condition or qualification to Article 8.5 (National Treatment) as well.
4. The Parties’ Schedule of Specific Commitments are set forth in Annex 8A (Schedules of Specific Commitments).
Article 8.8. Modification of Schedules
1. A Party may modify or withdraw any commitment in its Schedule (referred to in this Article as the “modifying Party”), 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. The modifying Party shall notify the other Party of its intent to modify or withdraw a commitment pursuant to this Article no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of the affected Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment within six months. In such negotiations and agreement, the affected Party and the modifying Party shall endeavor to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in the Schedules of specific commitments prior to such negotiations. The Joint Committee shall be kept informed of the outcome of the negotiations.
3. If agreement is not reached between any affected Party and the modifying Party before the end of the period provided for negotiations, the affected Party may refer the matter to the procedures in Chapter 16 (Dispute Settlement).
4. If an affected Party does not refer the matter to dispute settlement 60 days from the expiration of the period referred to in paragraph 3 of this Article, the modifying Party shall be free to implement the proposed modification or withdrawal.
5. The modifying Party may not modify or withdraw its commitment until it has made compensatory adjustments in conformity with the findings of the panel established pursuant to Article 16.8 (Dispute Settlement).
6. If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the panel established pursuant to Article 16.8 (Dispute Settlement), the affected Party may modify or withdraw substantially equivalent benefits in conformity with those findings.
Article 8.9. 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. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, on 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.
3. The provisions of paragraph 2 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.
4. 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, on request of the applicant, where practicable, identify all the additional information that is required to complete the application and provide the opportunity to remedy deficiencies within a reasonable timeframe;
(b) on 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, inform the applicant in writing and without delay the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application.
(d) endeavor to accept application in electronic format under the equivalent conditions of authenticity as paper submissions in accordance with domestic laws and regulations; and
(e) where they deem appropriate, accept copies of documents authenticated in accordance with domestic laws and regulations, in place of original documents.
5. In sectors in which a Party has undertaken specific commitments, with a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Parties agree that such requirements should be, 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.
6. In sectors in which a Party has undertaken specific commitments, that Party shall not apply licensing and qualification requirements and technical standards that nullify or impair its obligation under this Agreement in a manner which:
(a) does not comply with the criteria outlined in subparagraphs 5(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.
7. In determining whether a Party is in conformity with the obligation under paragraph 6, account shall be taken of international standards of relevant international organisations applied by that Party.(15)
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 the other Party.
Article 8.10. Mutual 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 3, a Party may recognise, the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties or may be accorded autonomously.
2. 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 the other Party, on request, to negotiate its 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 the other Party to demonstrate that the education, experience, licences or certifications obtained or requirements met in that other Party's territory should also be recognised.
3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the countries in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
4. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements 15 The term “relevant international organisations” refers to international bodies whose membership is open to the relevant bodies of the Parties to this Agreement. met, or licences or certifications granted in the territory of a non-Party, nothing in this Chapter 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 the other Party.
5. The Parties agree to encourage, where possible, the relevant bodies in their respective territories responsible for issuance and recognition of professional and vocational qualifications to:
(a) establish dialogues with a view to recognizing professional and vocational qualifications, facilitating licensing or registration procedures, and working towards the development of mutually acceptable professional standards and criteria with respect to professional services in sectors of mutual importance to the Parties.
(b) take into account other relevant multilateral agreements, to which both countries are Parties, that relate to professional services in developing such arrangements on the recognition of professional qualifications, licensing and registration.
6. For purposes of transparency, on request of the other Party, a Party shall endeavour to, where practicable provide information concerning standards and criteria for the certification and licensing of professional service suppliers, or otherwise provide information concerning the appropriate regulatory or other body to consult regarding these standards and criteria.
Article 8.11. Payments and Transfers
1. Except under the circumstances envisaged in Article 8.12 (Restrictions to Safeguard the Balance-of-Payments), 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 the Parties as members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 8.12 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the International Monetary Fund.
Article 8.12. Restrictions to Safeguard the Balance-of-Payments
1. Where any of the Parties to this Agreement is in serious balance of payments difficulties, or under threat thereof, it may adopt or maintain restrictive measures with regard to trade in services, on which it has undertaken specific commitments, including on payments and transfers related to such commitments.
2. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GATS. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 8.13. Denial of Benefits
A Party may deny the benefits of this Chapter:
(a) to the supply of a service, if it establishes that the service is supplied from or in the territory of a non-Party;
(b) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
(i) by a vessel registered under the laws of a non-Party, and
(ii) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Party;
(c) to a service supplier that is a juridical person, if it establishes that it is not a service supplier of the other Party.
Article 8.14. Review
1. With the objective of further liberalising trade in services between them, the Parties agree to jointly review their Schedules of Specific Commitments within the framework of the Joint Committee taking into account any services liberalization developments as a result of on- going work under the auspices of the WTO.
2. The first such review shall take place no later than five years after the entry into force of this Agreement.
Article 8.15. Committee on Trade In Services
For the purposes of effective implementation and operation of this Chapter, the functions of the Committee on Trade in Services (hereinafter referred to in this Article as “the Committee”) established in accordance with Article 18.3 (Committees and Subsidiary Bodies) shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to this Chapter;
(c) reporting the findings of the Committee to the Joint Committee; and
(d) carrying out other functions as may be delegated by the Joint Committee in accordance with Article 18.1 (Joint Committee).
Article 8.16. Cooperation
The Parties shall endeavour to strengthen cooperation efforts in services sectors, including sectors which are not covered by existing cooperation arrangements, such as professional services. The Parties shall discuss and mutually agree on the sectors for cooperation and develop cooperation programs in these sectors in order to improve their domestic capacities, efficiencies and competitiveness.
ANNEX 8A. SCHEDULES OF SPECIFIC COMMITMENTS
Section 1. Schedule of Specific Commitments of Indonesia
ANNEX 8B. FINANCIAL SERVICES
Article 1. Definitions
For the purposes of this Annex:
(a) a financial service is any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
Insurance and insurance-related services
(i) Direct insurance (including co-insurance):
(A) Life
(B) non-life;
(ii) Reinsurance and retrocession;
(iii) Insurance intermediation, such as brokerage and agency;
(iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
Banking and other financial services (excluding insurance)
(v) Acceptance of deposits and other repayable funds from the public;
(vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) Financial leasing;
(viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(ix) Guarantees and commitments;
(x) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities;
(F) other negotiable instruments and financial assets, including bullion.
(xi) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(xii) Money broking;