2. Such cooperation, which shall be on mutually determined terms and conditions, may include:
(a) advice or technical assistance relating to the development and application of technical regulations, standards and conformity assessment procedures;
(b) encouraging the bodies responsible for technical regulations, standards and conformity assessment procedures in each Party to cooperate on matters of mutual interest and to participate in the frameworks for mutual recognition developed by relevant international bodies; and
(c) strengthening communication and coordination in the WTO TBT Committee and other relevant international or regional fora.
3. Each Party shall, on request of the other Party, give consideration to sector specific proposals for mutual benefit for cooperation under this Chapter.
Article 6.11. Non-Application of Chapter 21
1. Chapter 21 shall not apply to this Chapter.
2. If any issues which may cause disputes between the Parties related to this Chapter arise, the Parties shall endeavor to discuss those issues with the objective of finding an amicable solution.
Chapter 7. Trade In Services
Article 7.1. Scope
1. This Chapter shall apply to measures affecting trade in services, including the measures with respect to the following, adopted or maintained by central or local governments or authorities of a Party, or non-governmental bodies in the exercise of powers delegated by central or local governments or authorities of a Party:
(a) the purchase, payment or use of a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the Area of the other Party.
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 local governments and authorities and non-governmental bodies within its Area.
Note: This Chapter shall apply to taxation measures to the same extent as covered by the GATS.
2. This Chapter shall not apply to:
(a) cabotage in maritime transport services;
(b) air transport services, measures affecting traffic rights however granted, or measures affecting services directly related to the exercise of traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(iv) ground handling services; and
(v) airport operation services;
(c) government procurement;
(d) subsidies provided by a Party including grants, government-supported loans, guarantees and insurance, except as provided for in Article 7.15;
(e) measures affecting natural persons of a Party seeking access to the employment market of the other Party, or measures regarding nationality or citizenship, or residence or employment on a permanent basis; and
(f) services supplied in the exercise of governmental authority.
3. Annex 4 provides supplementary provisions to this Chapter on measures affecting supply of financial services, including scope and definitions.
Article 7.2. Definitions
For the purposes of this Chapter:
(a) the term “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;
(b) the term “airport operation services” means the supply of air terminal, airfield and other airport infrastructure operation services on a fee or contract basis. Airport operation services do not include air navigation services;
(c) the term “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 Area of a Party for the purpose of supplying a service;
(d) the term “computer reservation system services” means services provided by computerized systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(e) the term “existing” means in effect on the date of entry into force of this Agreement;
(f) the term “ground handling services” means the supply at an airport, on a fee or contract basis, of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except the preparation of the food; air cargo and mail handling; fueling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning. Ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralized airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
(g) the term “monopoly supplier of a service” means any person, public or private, which in the relevant market of the Area of a Party is authorized or established formally or in effect by that Party as the sole supplier of that service;
(h) the term “natural persons of a Party” means natural persons who under the law of the Party:
(i) for Bangladesh, are citizens of Bangladesh; and
(ii) for Japan, are nationals of Japan;
(i) the term “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;
(j) the term “services” means any service in any sector except services supplied in the exercise of governmental authority;
(k) the term “service consumer” means any person that receives or uses a service;
(l) the term “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;
(m) the term “service supplier” means any person that seeks to supply or supplies a service;
(n) the term “supply of a service” includes the production, distribution, marketing, sale and delivery of a service;
(o) the term “trade in services” means the supply of a service:
(i) from the Area of a Party into the Area of the other Party (“cross-border supply mode”);
(ii) in the Area of a Party to the service consumer of the other Party (“consumption abroad mode”);
(iii) by a service supplier of a Party, through commercial presence in the Area of the other Party (“commercial presence mode”); and
(iv) by a service supplier of a Party, through presence of natural persons of that Party in the Area of the other Party (“presence of natural persons mode”); and
(p) the term “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 Area of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership and control.
Article 7.3. Market Access
1. With respect to market access through the modes of supply identified in subparagraph (o) of Article 7.2, each Party shall accord services and service suppliers of the other Party treatment no less favorable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments in Annex 5.
Note: If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (o)(i) of Article 7.2 and if the cross-border movement of capital is an essential part of the service itself, that Party is thereby committed to allow such movement of capital. If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (o)(iii) of that Article, that Party is thereby committed to allow related transfers of capital into its Area.
2. The measures which a Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire Area, in sectors where market access commitments are undertaken and in accordance with its specific commitments as provided for in Article 7.5, 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 requirements 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 requirements of an economic needs test;
Note: This subparagraph shall not apply to measures which limit inputs for the supply of services.
(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 requirements 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 7.4. National Treatment
1. A Party shall, in the sectors inscribed in its Schedule of Specific Commitments in Annex 5 and subject to any conditions and qualifications set out therein, accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers.
Note: Specific commitments assumed under this Article shall not be construed to require either Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
2. A Party may meet the requirement of 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 shall be considered to be less favorable if it modifies the conditions of competition in favor of services or service suppliers of a Party compared to like services or service suppliers of the other Party.
Article 7.5. Schedules of Specific Commitments
1. A Party shall set out, in its Schedule of Specific Commitments in Annex 5, the specific commitments it undertakes under Articles 7.3, 7.4, and 7.6. With respect to sectors where such commitments are undertaken, each Schedule of Specific Commitments in Annex 5 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.
2. Measures inconsistent with both Articles 7.3 and 7.4 shall be inscribed in the column relating to Article 7.3. In this case, the inscription shall be considered to provide a condition or qualification to Article 7.4 as well.
Article 7.6. Additional Commitments
1. The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 7.3 and 7.4, including those regarding qualifications, standards or licensing matters.
2. A Party making additional commitments under paragraph 1 shall inscribe such commitments in its Schedule of Specific Commitments in Annex 5.
Article 7.7. Most-Favored-Nation Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords to like services and service suppliers of any non-Party.
2. Paragraph 1 shall not apply to:
(a) any treatment granted under other agreements concluded by a Party and notified under Article V of the GATS; and
(b) any measure by a Party with respect to sectors, sub-sectors or activities, as set out in the List of Most-Favored-Nation Treatment Exemptions in Annex 6.
Article 7.8. Transparency
1. The Parties recognize 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.
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 the Party is a party.
3. To the extent possible, each Party shall make the measures and international agreements referred to in paragraph 2 publicly available on the Internet and, to the extent provided under its legal framework, in the English language.
4. Where publication referred to in paragraphs 2 and 3 is not practicable, such information shall be made otherwise publicly available.
5. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Chapter. On request of a Party, the contact point of the other Party shall:
(a) identify the office or official responsible for the relevant matter; and
(b) assist as necessary in facilitating communications between the responsible offices or officials of the Parties with respect to that matter.
6. Each Party shall respond promptly to any request of the other Party for specific information and provide 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.
Article 7.9. 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 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. Nothing in paragraph 2 shall 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. 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 in sectors where specific commitments are undertaken, while recognizing the right to regulate and to introduce new regulations on the supply of services in order to meet its policy objectives, each Party shall endeavor to ensure that any such measures that it adopts or maintains are:
(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.
5. In determining whether a Party is in conformity with its obligations under subparagraph 4(a), international standards of relevant international organizations applied by that Party shall be taken into account.
Note: The term “relevant international organizations” refers to international bodies whose membership is open to the relevant bodies of each Party.
6. Where a Party requires authorization for the supply of a service, it shall ensure that its competent authorities:
(a) ensure that any authorization fees charged for the completion of relevant application procedures are reasonable, transparent, and do not in themselves restrict the supply of a service. For the purposes of this subparagraph, authorization fees do not include fees for the use of natural resources, payment for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal services provision;
(b) within a reasonable period of time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision concerning the application;
(c) to the extent practicable, establish an indicative time frame for processing of an application;
(d) on request of the applicant, provide, without undue delay, information concerning the status of the application;
(e) in the case of an incomplete application and on 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 time frame;
(f) if an application is terminated or denied, to the extent possible and without undue delay, inform the applicant in writing of the reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application;
(g) to the extent permissible under its laws and regulations, do not require physical presence in the Area of a Party for the submission of an application for a license or qualification;
(h) endeavor to accept applications in electronic format under the equivalent conditions of authenticity as paper submissions, in accordance with its laws and regulations; and
(i) where they deem appropriate, accept copies of documents authenticated in accordance with its laws and regulations, in place of original documents.
7. Each Party shall provide adequate procedures to verify the competence of professionals of the other Party. If licensing or qualification requirements include the completion of an examination, each Party shall, to the extent practicable, ensure that:
(a) the examination is scheduled at reasonable intervals; and
(b) a reasonable period of time is provided to enable interested persons to submit applications.
8. Each Party shall, subject to its laws and regulations, permit service suppliers of the other Party to use, without undue restrictions, the business names under which they trade in the Area of that other Party.
9. If the results of the multilateral negotiations related to paragraph 4 of Article VI of the GATS enter into effect, the Parties shall review the results of such negotiations and shall amend this Article as appropriate, after consultations between the Parties to bring the results of such negotiations into effect under this Chapter.
Article 7.10. Recognition
1. A Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in the other Party for the purpose of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of service suppliers of the other Party, either through harmonization or otherwise, and either based upon an agreement or arrangement between the Parties or competent authorities of the Parties, or unilaterally.
2. Where a Party recognizes the education or experience obtained, requirements met, or licenses or certifications granted in any non-Party:
(a) nothing in Article 7.7 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the other Party;
(b) in cases where such recognition is accorded by an agreement or arrangement between the Party and the non-Party, the Party shall afford the other Party, on request, adequate opportunity to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it; and
(c) in cases where such recognition is accorded unilaterally, the Party shall afford the other Party an adequate opportunity to demonstrate that the education or experience obtained, requirements met, or licenses or certifications granted in the other Party should also be recognized.
3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-Parties in the application of its standards or criteria for the authorization, licensing or certification of service suppliers, or a disguised restriction on trade in services.
4. Wherever appropriate, recognition provided for in paragraph 1 should be based on multilaterally agreed criteria. In appropriate cases, the Parties shall work in cooperation with relevant intergovernmental and non-governmental organizations 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.
Article 7.11. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its Area does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with the Party’s commitments under this Chapter.
2. Where a Party’s monopoly supplier competes, either directly or through an affiliated juridical person, 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 Area in a manner inconsistent with such commitments.
3. If a Party has a reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraph 1 or 2, it may request the other Party establishing, maintaining or authorizing such supplier to provide specific information concerning the relevant operations in the Area of that other Party.
4. This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorizes or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its Area.
Article 7.12. Business Practices
1. The Parties recognize that certain business practices of service suppliers, other than those falling under Article 7.11, may restrain competition and thereby restrict trade in services.
2. Each Party shall, on request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 7.13. Payments and Transfers
1. Except under the circumstances envisaged in Article 7.14, a Party shall not apply restrictions on international transfers and payments for current transactions related to trade in services.
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 International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 7.14, or on request of the International Monetary Fund.
Article 7.14. Restrictions to Safeguard the Balance of Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services, including on payments or transfers for transactions.
2. The restrictions referred to in paragraph 1 shall:
(a) be applied on the basis of national treatment and most-favored-nation treatment;
(b) be consistent with the Articles of Agreement of the International Monetary Fund;