(b) to protect the technical integrity of public telecommunications networks or public telecommunications services.
Article 10.53. Resolution of Telecommunications Disputes
1. Each Party shall ensure that, in the event of a dispute arising between suppliers of telecommunications networks or telecommunications services in connection with rights and obligations that arise from this Sub-Section, and at the request of either party involved in the dispute, its telecommunications regulatory authority issues a binding decision within a reasonable timeframe to resolve the dispute.
2. Each Party shall ensure that a decision by its telecommunications regulatory authority is made available to the public, having regard to the requirements of business confidentiality, and that the parties concerned are given a full statement of the reasons on which the decision is based and have the right of appeal as referred to in Article 10.49(4) (Telecommunications regulatory authority).
3. Each Party shall ensure that the procedure specified in paragraphs 1 and 2 does not preclude either party concerned from bringing an action before a judicial authority, in accordance with the laws and regulations of the Party.
Article 10.54. Competitive Safeguards on Major Suppliers
Each Party shall adopt or maintain appropriate measures that prevent suppliers of telecommunications networks or telecommunications services who, alone or together, are a major supplier, from engaging in or continuing anti-competitive practices. The anti-competitive practices may include:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other service suppliers on a timely basis technical information about essential facilities and commercially relevant information that is necessary for them to provide services.
Article 10.55. Interconnection with Major Suppliers
1. Each Party shall ensure that major suppliers of public telecommunications networks or public telecommunications services provide interconnection at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms and conditions, including as regards rates, and technical standards and specifications, including quality and maintenance, and of a quality no less favourable than that provided for their own like services of such major supplier, or for like services of its subsidiaries or other affiliates;
(b) in a timely fashion, on terms and conditions, including as regards rates, and technical standards and specifications, including quality and maintenance, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier does not need to pay for network elements or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available.
3. Each Party shall ensure that a major supplier in its territory makes publicly available either its interconnection agreements or its reference interconnection offers as appropriate.
Article 10.56. Access to Major Suppliers' Essential Facilities
Each Party shall ensure that a major supplier in its territory makes its essential facilities available to suppliers of telecommunications networks or telecommunications services on reasonable and non-discriminatory terms and conditions for the purpose of providing public telecommunications services, except when this is not necessary to achieve effective competition on the basis of the facts collected and the assessment of the market conducted by the telecommunications regulatory authority.
Article 10.57. Scarce Resources
1. Each Party shall ensure that the allocation and granting of rights of use of scarce resources, including radio frequency spectrum, numbers and rights of way, is carried out using procedures that are objective, timely, transparent, non-discriminatory and that do not create a disincentive for the application for the rights of use of scarce resources.
2. Each Party shall endeavour to take into account the public interest, including the promotion of competition, and to rely on market-based approaches, including mechanisms such as auctions, when allocating and granting rights of use of radio frequency spectrum for public telecommunication services.
3. Each Party shall ensure that the current use of allocated frequency bands is made publicly available, but detailed identification of radio spectrum allocated for specific government uses is not required.
4. Measures of a Party allocating and assigning spectrum and managing frequency are not per se inconsistent with Articles 10.5 (Market access) and 10.14 (Market access). Each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of telecommunications services, provided that it does so ina manner consistent with this Agreement. This includes the ability to allocate frequency bands taking into account current and future needs and spectrum availability.
Article 10.58. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to maintain and to decide on their scope and implementation.
2. Each Party shall administer the universal service obligations in a transparent, objective and non-discriminatory way which is neutral with respect to competition and not more burdensome than necessary for the kind of universal service defined by the Party.
3. If a Party designates a universal service supplier, it shall do so in a manner that is efficient, transparent, non-discriminatory and open to all suppliers of public telecommunication networks or public telecommunication services.
4. If a Party decides to compensate a universal service supplier, it shall ensure that such compensation does not exceed the net cost caused by the universal service obligation.
Article 10.59. Number Portability
Each Party shall ensure that a supplier of public telecommunications services provides number portability on reasonable terms and conditions.
Article 10.60. Confidentiality of Information
1. Each Party shall ensure that a supplier that acquires information from another supplier in the process of negotiating an arrangement pursuant to Article 10.51 (Interconnection), 10.52 (Access and use), 10.55 (Interconnection with major suppliers) or 10.56 (Access to major suppliers' essential facilities) uses such information solely for the purpose for which it was supplied and respects at all times the confidentiality of information transmitted or stored. (1)
2. Each Party shall adopt or maintain measures to protect the confidentiality of communications and related traffic data transmitted in the use of public telecommunications networks or public telecommunications services, in a manner that is non-discriminatory and that does not unduly restrict the supply of telecommunication services.
Article 10.61. Telecommunications Connectivity
The Parties recognise the importance of the availability and take-up of very high capacity networks and of high quality telecommunications services, including in rural and remote areas, as a means of enabling persons and businesses to access the benefits of trade.
Subsection 5. FINANCIAL SERVICES
Article 10.62. Scope
1. This Sub-Section applies to measures of a Party affecting the supply of financial services. This Sub-Section does not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article 10.10 (Non-conforming measures) or 10.18 (Non-conforming measures).
2. For the purposes of this Sub-Section, activity performed in the exercise of governmental authority defined in point (a) of Article 10.3 (Definitions) means the following:
(a) an activity conducted by a central bank or a monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) an activity forming part of a statutory system of social security or public retirement plans; and
(c) other activities conducted by a public entity on the account of or with the guarantee of or using the financial resources of the Party or its public entities.
3. If a Party allows any of the activities referred to in point (b) or (c) of paragraph 2 of this Article to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, service defined in point (m) of Article 10.3 (Definitions) shall include those activities.
4. Point (a) of Article 10.3 (Definitions) does not apply to financial services covered by this Sub-Section.
Article 10.63. Definitions
For the purposes of this Sub-Section and of Sections B (Investment Liberalisation), C (Cross-border trade in services), D (Entry and temporary stay of natural persons for business purposes) and Sub-Section 1 (Domestic regulation) of Section E (Regulatory framework) of this Chapter, the following definitions apply:
(a) "financial service" means 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:
(i) insurance and insurance-related services:
(A) direct insurance (including co-insurance):
(1) life; and
(2) non-life;
(B) reinsurance and retrocession;
(C) insurance intermediation, such as brokerage and agency; and
(D) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
(ii) banking and other financial services (excluding insurance):
(A) acceptance of deposits and other repayable funds from the public;
(B) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transactions;
(C) financial leasing;
(D) all payment and money transmission services, including credit, charge and debit cards, travellers' cheques and bankers' drafts;
(E) guarantees and commitments;
(F) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(1) money market instruments (including cheques, bills and certificates of deposits);
(2) foreign exchange;
(3) derivative products, including futures and options;
(4) exchange rate and interest rate instruments, including products such as swaps and forward rate agreements;
(5) transferable securities; and
(6) other negotiable instruments and financial assets, including bullion;
(G) 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;
(H) money broking;
(I) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(J) settlement and clearing services for financial assets, including securities, derivative products and other negotiable instruments;
(K) provision and transfer of financial information, and financial data processing and related software; and
(L) advisory, intermediation and other auxiliary financial services in respect of the activities listed in points (A) to (K), including credit reference and analysis, investment and portfolio research and advice, and advice on acquisitions and corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party that seeks to supply or supplies financial services and does not include a public entity;
(c) "public entity" means:
(i) 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
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions;
(d) "new financial service" means a service of a financial nature, including services related to existing and new products, or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but that is supplied in the territory of the other Party; and
(e) "self-regulatory organisation" means any non-governmental body, including a securities or futures exchange or market, clearing agency, other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from central, regional or local governments or authorities, where applicable.
Article 10.64. Prudential Carve-out
1. Nothing in this Agreement shall prevent a Party from adopting or maintaining measures for prudential reasons, such as:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(b) ensuring the integrity and stability of a Party's financial system.
2. Where such measures do not conform with this Agreement, they shall not be used as a means of avoiding the Party's commitments or obligations under this Agreement.
Article 10.65. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual consumers or any confidential or proprietary information in the possession of public entities.
Article 10.66. International Standards
1. Each Party shall give due consideration to ensuring that internationally agreed standards for regulation and supervision in the financial services sector and for the fight against tax evasion and avoidance in the financial services sector are implemented and applied in its territory. Such internationally agreed standards include those adopted by the G20, the Financial Stability Board, the Basel Committee on Banking Supervision, in particular its Core Principles for effective banking supervision, the International Association of Insurance Supervisors, in particular its Insurance Core Principles, the International Organization of Securities Commissions, in particular its Objectives and Principles of Securities Regulation, the Financial Action Task Force, and the Global Forum on Transparency and Exchange of Information for Tax Purposes.
2. The Parties shall aim to cooperate and exchange information regarding the development of international standards.
Article 10.67. Financial Services New to the Territory of a Party
1. Each Party shall permit a financial service supplier of the other Party established in its territory to supply any new financial service that it would permit its own financial service suppliers to supply in accordance with its law in like situations, provided that the introduction of the new financial service does not require an amendment of an existing law or the adoption of a new law. This does not apply to branches of financial service suppliers of the other Party established within the territory of a Party.
2. A Party may determine the institutional and legal form through which the new financial service may be supplied and require authorisation for the supply of such service. Where such authorisation is required, a decision shall be made within a reasonable time and authorisation may only be refused for prudential reasons.
Article 10.68. Self-regulatory Organisations
If a Party requires membership of, participation in, or access to, any self-regulatory organisation in order for financial service suppliers of the other Party to supply financial services in or into the territory of the first Party, the Party shall ensure observance by that self-regulatory organisation of the obligations under Articles 10.6 (National treatment), 10.7 (Most-favoured-nation treatment), 10.16 (National treatment) and 10.17 (Most-favoured-nation treatment).
Article 10.69. Clearing and Payment Systems
Under terms and conditions that accord national treatment, each Party shall grant to financial service suppliers of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article shall not confer access to the Party's lender of last resort facilities.
Subsection 6. INTERNATIONAL MARITIME TRANSPORT SERVICES
Article 10.70. Scope and Definitions
1. This Sub-Section sets out principles of the regulatory framework for the provision of international maritime transport services pursuant to Sections B (Investment liberalisation), C (Cross-border trade in services) and D (Entry and temporary stay of natural persons for business purposes) of this Chapter and applies to measures of a Party affecting trade in international maritime transport services. This Sub-Section does not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article 10.10 (Non-conforming measures) or 10.18 (Non-conforming measures).
2. For the purposes of this Sub-Section and Sections B (Investment liberalisation), C (Cross-border trade in services) and D (Entry and temporary stay of natural persons for business purposes) of this Chapter, the following definitions apply:
(a) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing or stripping, repairing and making them available for shipments;
(b) "customs clearance" means activities consisting in carrying out, on behalf of another party, customs formalities concerning import, export or through transport of cargoes, irrespective of whether this service is the main activity of the service supplier or a usual complement of its main activity;
(c) "door-to-door or multimodal transport operations" means transporting cargo using more than one mode of transport, involving an international sea-leg, under a single transport document;
(d) "feeder services" means the pre- and onward transportation by sea of international cargo, including containerised, break bulk and dry or liquid bulk cargo, between ports located in the territory of a Party, international cargo en route directed to a destination, or coming from a port of shipment, outside the territory of that Party;
(e) "freight forwarding services" means the activity consisting in organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
(f) "international cargo" means cargo transported between a port of one Party and a port of the other Party or of a third country, or between ports of different Member States;
(g) "international maritime transport services" means transporting passengers or cargo by sea-going vessels between a port of a Party and a port of the other Party or of a third country, including direct contracting with providers of other transport services, with a view to covering door-to-door or multimodal transport operations under a single transport document, but not the right to provide those other transport services;
(h) "maritime agency services" means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information;
(ii) acting on behalf of the companies organising the call of the ship or taking over cargoes when required;
(i) "maritime auxiliary services" means maritime cargo handling services, customs clearance services, container station and depot services, maritime agency services and maritime freight forwarding services; and
(j) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators but not including the direct activities of dockers, when this workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(i) the loading or discharging of cargo to or from a ship;
(ii) the lashing or unlashing of cargo; and
(iii) the reception or delivery and safekeeping of cargoes before shipment or after discharge.
Article 10.71. Obligations
1. Each Party shall implement unrestricted access to international maritime markets and trades on a commercial and non-discriminatory basis by:
(a) according to ships flying the flag of the other Party, or operated by service suppliers of the other Party, treatment no less favourable than that accorded to its own ships, including with regard to:
(i) access to ports;
(ii) the use of infrastructure and services of ports;
(iii) the use of maritime auxiliary services;
(iv) related fees and charges; and
(v) customs facilities and the assignment of berths and facilities for loading and unloading;
(b) permitting international maritime service suppliers of the other Party to establish and operate an enterprise in its territory under conditions no less favourable than those that it accords to its own service suppliers;
(c) making available to international maritime transport service suppliers of the other Party, on reasonable and non-discriminatory terms and conditions, the following services at its ports: pilotage; towing and tug assistance; provisioning; fuelling and watering; garbage collecting and ballast waste disposal; port captain's services; navigation aids; emergency repair facilities; anchorage; berth and berthing services; and shore-based operational services essential to ship operations, including communications, water and electrical supplies;
(d) permitting international maritime transport service suppliers of the other Party, subject to authorisation by the competent authority where applicable, to reposition owned or leased empty containers which are not being carried as cargo against payment between ports of New Zealand or between ports of a Member State; and
(e) permitting international maritime transport service suppliers of the other Party to provide feeder services between the ports of New Zealand or between ports of a Member State, subject to authorisation by the competent authority where applicable.
2. In applying points (a) and (b) of paragraph 1, the Parties shall:
(a) not introduce cargo-sharing arrangements in future agreements with third countries concerning maritime transport services, including in respect of dry or liquid bulk cargo and liner trade;
(b) terminate, within a reasonable period of time, existing cargo-sharing arrangements as referred to in point (a) that exist in previous agreements; and
(c) not adopt or maintain any administrative, technical or other measures which could constitute a disguised restriction, or have arbitrary or unjustifiable discriminatory effects where like conditions prevail, on the free supply of services in international maritime transport.
Chapter 11. CAPITAL MOVEMENTS, PAYMENTS AND TRANSFERS
Article 11.1. Payments and Transfers
Each Party shall allow, in freely convertible currency and in accordance with the relevant provisions of the Articles of Agreement of the International Monetary Fund, any payments or transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 11.2. Capital Movements
Each Party shall allow, with regard to transactions on the capital and financial account of the balance of payments, the free movement of capital for the purposes of investment liberalisation and other transactions as provided for under Chapter 10 (Trade in services and investment).
Article 11.3. Application of Laws and Regulations Relating to Capital Movements, Payments and Transfers
1. Nothing in Articles 11.1 (Payments and transfers) and 11.2 (Capital movements) shall be construed to prevent a Party from applying its laws and regulations relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, derivatives such as futures or options, or in other financial instruments;
(c) financial reporting or record-keeping of capital movements, payments or transfers, where it is necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in administrative or judicial proceedings; or
(f) social security, public retirement or compulsory savings schemes.
2. A Party shall not apply the laws and regulations referred to in paragraph 1 in an arbitrary or discriminatory manner, or in a manner that would constitute a disguised restriction on capital movements, payments or transfers.