2. The Parties may cooperate and exchange information on any issues related to Annex 9-A (Acceptance of conformity assessment (documents)), including its implementation.
Article 9.13. Prohibition on Animal Testing
1. Each Party shall continue to actively support and promote the research, development, validation and regulatory acceptance of alternative methods to animal testing.
2. Each Party shall accept, for the purpose of the safety assessment of products falling under the definition of the term "cosmetic product" in their jurisdiction, test results generated from validated alternative methods to animal testing.
3. A Party shall not require that a product falling under the definition of the term "cosmetic product" in their jurisdiction be tested on animals to determine the safety of such a product.
Article 9.14. TBT Chapter Coordinator
1. Each Party shall designate a TBT Chapter coordinator and notify the other Party of its contact details. Each Party shall promptly notify the other Party of any change to those contact details.
2. The TBT Chapter coordinators shall work jointly to facilitate the implementation of this Chapter and cooperation between the Parties in all TBT matters. To that end and subject to each Party's internal procedures, the TBT Chapter coordinators shall, in particular, have the following responsibilities:
(a) monitoring the implementation and administration of this Chapter, promptly addressing any issue that either Party raises related to the development, adoption, application or enforcement of technical regulations, standards or conformity assessment procedures, and upon either Party's request, consulting on any matter arising under this Chapter;
(b) enhancing cooperation in the development and improvement of technical regulations, standards and conformity assessment procedures;
(c) arranging the technical discussions or consultations referred to in Article 9.11 (Technical discussions and consultations);
(d) arranging the establishment of working groups (1), where relevant; and
(e) exchanging information on developments in non-governmental, regional and multilateral fora related to technical regulations, standards and conformity assessment procedures.
3. The TBT Chapter coordinators shall communicate with one another by any agreed method that is appropriate to carry out their responsibilities.
Chapter 10. TRADE IN SERVICES AND INVESTMENT
Section A. GENERAL PROVISIONS
Article 10.1. Objectives
1. The Parties, affirming their commitment to create a better climate for the development of trade and investment between them, hereby lay down the necessary arrangements for the progressive reciprocal liberalisation of trade in services and investment.
2. The Parties reaffirm each Party's right to regulate within their territories to achieve legitimate policy objectives, such as the protection of human, animal or plant life or health, social services, public education, safety, the environment, including climate change, public morals, social or consumer protection, animal welfare, privacy and data protection, the promotion and protection of cultural diversity and, in the case of New Zealand, the promotion or protection of the rights, interests, duties and responsibilities of Maori.
Article 10.2. Scope
1. This Chapter does not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, nor to measures regarding nationality or citizenship, residence or employment on a permanent basis.
2. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures that are necessary to protect the integrity of its borders and to ensure the orderly movement of natural persons across them, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Chapter (1).
3. This Chapter does not apply to:
(a) air services or related services in support of air services (2), other than the following:
(i) aircraft repair and maintenance services;
(ii) computer reservation system (CRS) services;
(iii) ground handling services;
(iv) the selling and marketing of air transport services; and
(v) the following services provided using a manned aircraft, whose primary purpose is not the transportation of goods or passengers: aerial fire-fighting; flight training; spraying; surveying; mapping; photography; aviation adventure services (1); and other airborne agricultural, industrial and inspection services;
(b) audio-visual services; and
(c) national maritime cabotage (2).
Article 10.3. Definitions
For the purposes of this Chapter, the following definitions apply:
(a) "activity performed in the exercise of governmental authority" means any activity which is performed, including any service that is supplied, neither on a commercial basis nor in competition with one or more economic operators;
(b) "aircraft repair and maintenance services" means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service, it does not include line maintenance;
(c) "computer reservation system (CRS) services" means services provided by computerised systems that contain information about air carriersâ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) "covered enterprise" means an enterprise in the territory of a Party established in accordance with point (g), directly or indirectly, by an investor of the other Party, in accordance with the applicable law, existing on the date of entry into force of this Agreement or established thereafter;
(e) "cross-border trade in services" means the supply of a service:
(i) from the territory of a Party into the territory of the other Party; or
(ii) in the territory of a Party to the service consumer of the other Party;
(f) "economic activity" means any activity of an industrial, commercial or professional character or any activity of a craftsperson, including the supply of services, except for an activity performed in the exercise of governmental authority;
(g) "establishment" means the setting up or the acquisition of a juridical person, including through capital participation, or the creation of a branch or representative office, in a Party, with a view to creating or maintaining lasting economic links;
(h) "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; air cargo and mail handling; fuelling of aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning. The term "ground handling services" does not include: self-handling; security; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra airport transport systems;
(i) "investor of a Party" means a natural person of a Party or a juridical person of a Party, including a Party, that seeks to establish, is establishing or has established an enterprise in accordance with point (g), in the territory of the other Party;
(j) "juridical person of a Party" means: (1)
(i) for the Union:
(A) a juridical person constituted or organised under the law of the Union or of at least one of the Member States and engaged in substantive business operations (2) in the Union; and
(B) shipping companies established outside the Union, and controlled by natural persons of a Member State, whose vessels are registered in, and fly the flag of, a Member State;
(ii) for New Zealand:
(A) a juridical person constituted or organised under the law of New Zealand and engaged in substantive business operations in New Zealand; and
(B) shipping companies established outside New Zealand, and controlled by natural persons of New Zealand, whose vessels are registered in, and fly the flag of, New Zealand;
(k) "operation" means the conduct, management, maintenance, use, enjoyment, or sale or other form of disposal of an enterprise;
(l) "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, but not including the pricing of air transport services nor the applicable conditions;
(m) "service" means any service in any sector, except services supplied in the exercise of governmental authority; and
(n) "service supplier" means any natural or juridical person that seeks to supply or supplies a service.
Section B. INVESTMENT LIBERALISATION
Article 10.4. Scope
1. This Section applies to measures of a Party affecting establishment or operation to perform economic activities by:
(a) investors of the other Party;
(b) covered enterprises; and
(c) for the purposes of Article 10.9 (Performance requirements), any enterprise in the territory of the Party which adopts or maintains the measure.
2. This Section does not apply to any measure of a Party with respect to public procurement of a good or service purchased for governmental purposes, and not with a view to commercial resale or with a view to use in the supply of a good or service for commercial sale, whether or not that procurement is covered procurement within the meaning of Article 14.1(4) (incorporation of certain provisions of the GPA).
3. Articles 10.5 (Market access), 10.6 (National treatment), 10.7 (Most-favoured-nation treatment) and 10.8 (Senior management and boards of directors) do not apply to subsidies or grants provided by the Parties, including government-supported loans, guarantees and insurance.
Article 10.5. Market Access
A Party shall not adopt or maintain, with regard to market access through establishment or operation by an investor of the other Party or by a covered enterprise, either on the basis of its entire territory or on the basis of a territorial subdivision, measures that:
(a) impose limitations on (1):
(i) the number of enterprises that may carry out a specific economic activity, whether in the form of numerical quotas, monopolies, exclusive rights or the requirement of an economic needs test;
(ii) the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
(iv) the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment; or
(v) the total number of natural persons that may be employed in a particular sector or that an enterprise may employ and who are necessary for, and directly related to, the performance of an economic activity, in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which an investor of the other Party may perform an economic activity.
Article 10.6. National Treatment
Each Party shall accord to investors of the other Party and to covered enterprises treatment no less favourable than that which it accords, in like situations, to its own investors and to their enterprises, with respect to establishment and operation in its territory.
Article 10.7. Most-favoured-nation Treatment
1. Each Party shall accord to investors of the other Party and to covered enterprises treatment no less favourable than that which it accords, in like situations, to investors of a third country and to their enterprises, with respect to establishment and operation in its territory.
2. Paragraph 1 shall not be construed as obliging a Party to extend to investors of the other Party or to covered enterprises the benefit of any treatment resulting from existing or future agreement or arrangement providing for recognition of qualifications, licences or prudential measures as referred to in Article VII of GATS or paragraph 3 of the Annex on Financial Services to GATS.
3. For greater certainty, the treatment referred to in paragraph 1 does not include dispute settlement procedures provided for in other international agreements.
4. For greater certainty, substantive provisions in other international agreements concluded by a Party with a third country do not in themselves constitute the treatment referred to in paragraph 1. Measures of a Party pursuant to those provisions may constitute such treatment and thus give rise to a breach of this Article. The mere transposition of the substantive provisions in other international agreements concluded by a Party with a third country into domestic law, to the extent that it is necessary in order to incorporate them into the domestic legal order, does not in itself qualify as the treatment referred to in paragraph 1.
Article 10.8. Senior Management and Boards of Directors
A Party shall not require a covered enterprise to appoint natural persons of any particular nationality to senior management positions or as members of the board of directors.
Article 10.9. Performance Requirements
1. A Party shall not impose or enforce any requirement, or enforce any commitment or undertaking, in connection with the establishment or operation of any enterprise in its territory:
(a) to export a given level or percentage of goods or services;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to goods produced or services supplied in its territory, or to purchase goods or services from natural or juridical persons or any other entities in its territory;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with the enterprise;
(e) to restrict sales of goods or services in its territory that the enterprise produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange inflows;
(f) to transfer technology, a production process or other proprietary knowledge to a natural or juridical person or any other entity in its territory;
(g) to supply exclusively from the territory of that Party a good produced or a service supplied by the enterprise to a specific regional market or to the world market;
(h) to locate the headquarters for a specific region or the world market in its territory;
(i) to employ a given number or percentage of natural persons of that Party;
(j) to achieve a given level or value of research and development in its territory;
(k) to restrict the exportation or sale for export; or
(l) with regard to any licence contract! in existence at the time the requirement is imposed or enforced, or any commitment or undertaking is enforced, or with regard to any future licence contract freely entered into between the enterprise and a natural or juridical person or any other entity in its territory, if the requirement is imposed or enforced or the commitment or undertaking is enforced, in a manner that constitutes a direct interference with such licence contract by an exercise of non-judicial governmental authority of a Party (2), to adopt:
(i) a given rate or amount of royalty under a licence contract; or
(ii) a given duration of the term of a licence contract.
2. A Party shall not condition the receipt, or continued receipt of an advantage, in connection with the establishment or operation of an enterprise in its territory, on compliance with any of the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to goods produced or services supplied in its territory, or to purchase goods or services from natural or juridical persons or any other entities in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with the enterprise;
(d) to restrict sales of goods or services in its territory that the enterprise produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange inflows; or
(e) to restrict the exportation or sale for export.
3. Paragraph 2 shall not be construed as preventing a Party from conditioning the receipt or continued receipt of an advantage, in connection with the establishment or operation of any enterprise in its territory, on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
4. Points (f) and (1) of paragraph 1 do not apply when:
(a) the requirement is imposed or enforced, or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority, pursuant to the Party's competition law, to prevent or remedy a distortion of competition; or
(b) a Party authorises the use of an intellectual property right in accordance with Article 31 or Article 31 bis of the TRIPS Agreement, or adopts or maintains measures requiring the disclosure of data or other proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement.
5. Points (a), (b) and (c) of paragraph 1 and points (a) and (b) of paragraph 2 do not apply to qualification requirements for goods or services with respect to participation in export promotion and foreign aid programmes.
6. Points (a) and (b) of paragraph 2 do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
7. Point (1) of paragraph 1 does not apply if the requirement is imposed or enforced, or the commitment or undertaking is enforced, by a tribunal as equitable remuneration under the Party's copyright laws.
8. This Article is without prejudice to the obligations of a Party under the WTO Agreement.
9. For greater certainty, paragraphs 1 and 2 shall not apply to any commitment, undertaking or requirement other than those set out in those paragraphs. (1)
10. This Article does not apply to the establishment or operation of a financial service supplier.
11. With regard to performance requirements relating to financial service suppliers, the Parties shall negotiate disciplines on performance requirements with respect to the establishment or operation of a financial service supplier.
12. Within 180 days of the date of the successful negotiation by the Parties of the performance requirement disciplines pursuant to paragraph 11 of this Article, the Trade Committee shall amend paragraph 1 of this Article by means of a decision to integrate those performance requirement disciplines into this Article and may amend, as appropriate, the non-conforming measures of each Party in Annex 10-A (Existing measures) and Annex 10-B (Future measures). This Article shall then apply to the establishment and operation of a financial service supplier.
Article 10.10. Non-conforming Measures
1. Articles 10.5 (Market access), 10.6 (National treatment), 10.7 (Most-favoured-nation treatment), 10.8 (Senior management and boards of directors) and 10.9 (Performance requirements), do not apply to:
(a) any existing non-conforming measure of a Party at the level of:
(i) for the Union:
(A) the Union, as specified in the Schedule of the Union in Annex 10-A (Existing measures);
(B) the central government of a Member State, as specified in the Schedule of the Union in Annex 10-A (Existing measures);
(C) a regional government of a Member State, as specified in the Schedule of the Union in Annex 10-A (Existing measures); or
(D) alocal government, other than that referred to in point (C); and
(ii) for New Zealand:
(A) the central government, as specified in the Schedule of New Zealand in Annex 10-A (Existing measures); or
(B) a local government;
(b) the continuation or prompt renewal of any existing non-conforming measure referred to in point (a); or
(c) a modification of, or amendment to, any existing non-conforming measure referred to in points (a) and (b), to the extent that it does not decrease the conformity of such measure, as it existed immediately before the modification or amendment, with Article 10.5 (Market access), 10.6 (National treatment), 10.7 (Most-favoured-nation treatment), 10.8 (Senior management and boards of directors) or 10.9 (Performance requirements).
2. Articles 10.5 (Market access), 10.6 (National treatment), 10.7 (Most-favoured-nation treatment), 10.8 (Senior management and boards of directors) and 10.9 (Performance requirements) shall not apply to a measure of a Party with respect to sectors, sub-sectors or activities specified in its Schedule in Annex 10-B (Future measures).
3. A Party shall not, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule in Annex 10-B (Future measures), require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective.
4. Articles 10.6 (National treatment) and 10.7 (Most-favoured-nation treatment) do not apply to any measure that constitutes an exception to, or a derogation from, Article 3 or Article 4 of the TRIPS Agreement, as specifically provided in Articles 3 to 5 of that Agreement.
Article 10.11. Information Requirements
Notwithstanding Articles 10.6 (National treatment) and 10.7 (Most-favoured-nation treatment), a Party may require an investor of the other Party or its covered enterprise to provide information concerning that covered enterprise solely for information or statistical purposes. The Party shall protect such information that is confidential from any disclosure that would prejudice the competitive position of the investor or the covered enterprise. Nothing in this Article shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable application of its law in good faith.
Article 10.12. Denial of Benefits
A Party may deny the benefits of this Section to an investor of the other Party or to a covered enterprise if the denying Party adopts or maintains measures related to the maintenance of international peace and security, including the protection of human rights, which:
(a) prohibit transactions with that investor or covered enterprise; or
(b) would be violated or circumvented if the benefits of this Section were accorded to that investor or covered enterprise, including where the measures prohibit transactions with a natural or juridical person who owns or controls the investor or the covered enterprise.