(a) direct investments of investors of the other Party; and
(b) investors of the other Party,
unless the measure is a measure by that Party affecting trade in services as set out in Article 803 (1).
Article 904. Pre-establishment National Treatment
In the sectors inscribed in Annex 8, and subject to any conditions and qualifications set out therein, each Party shall accord to investors of the other Party treatment no less favourable than it accords, in like circumstances, to its own investors, with respect to the establishment and acquisition of investments in its territory.
Article 905. Denial of Benefits
Subject to prior notification and consultation, a Party may deny the benefits of this Part to an investor of the other Party that is a juridical person of such Party and to investments of such an investor where the Party establishes that the juridical person is owned or controlled by persons of a non-Party.
Part III. Post-establishment National Treatment
Article 906. Scope
This Part applies to measures adopted or maintained by a Party relating to:
(a) covered investments; and
(b) investors of the other Party, but only in respect of such investors' management, conduct, operation and sale or other disposition of covered investments,
unless the measure is a measure by that Party affecting trade in services under Article 803 (1).
Article 907. Post-establishment National Treatment
1. Each Party shall accord to covered investments treatment no less favourable than it accords, in like circumstances, to investments in its territory of its own investors, unless otherwise specified in its specific commitments as set out in Annex 8.
2. Each Party shall accord to investors of the other Party treatment no less favourable than it accords, in like circumstances, to its own investors, unless otherwise specified in its specific commitments as set out in Annex 8.
Part IV. Promotion and Protection of Investments
Article 908. Scope
1. Except for Paragraph 2 and Article 914, this Part applies to measures adopted or maintained by a Party relating to:
(a) covered investments which, if so required, have been specifically approved in writing by the competent authorities concerned of the other Party as being entitled to the benefits of an agreement relating to investments; and
(b) investors of the other Party, but only in respect of such investors' management, conduct, operation and sale or other disposition of the covered investments referred to in Sub-paragraph (a).
2. Each Party shall accord to:
(a) investors of the other Party treatment no less favourable than it accords, in like circumstances, to investors of any non-Party; and
(b) investments of investors of the other Party treatment no less favourable than it accords, in like circumstances, to investments of investors of any non-Party
with respect to measures adopted or maintained by a Party relating to the requirements (if any) that need to be satisfied for investors and investments to receive the benefits of an agreement relating to investments, as referred to in Sub-paragraph (1)(a).
3. Where a juridical person ofa Party is owned or controlled by a national or a juridical person of any third country, the Parties may decide jointly in consultation not to extend the rights and benefits of this Part to such juridical person.
4. Ajuridical person duly constituted or otherwise organised under the law ofa Party shall not be treated as an investor of the other Party, but any investments in that juridical person by investors of that other Party shall be protected by this Part.
5. This Part shall not apply to a natural person who is a permanent resident but nota national of either Party where the provisions of an investment agreement between the other Party and the country of which the person is a national have already been invoked in respect of the same matter.
Article 909. Promotion and Protection of Investments
1. Each Party shall encourage and promote investments in its territory by investors of the other Party.
2. Each Party shall ensure fair and equitable treatment in its own territory of investments.
3. Each Party shall accord within its territory protection and security to investments.
Article 910. Most Favoured Nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than it accords, in like circumstances, to investors of any non-Party.
2. Each Party shall accord to all covered investments treatment no less favourable than it accords, in like circumstances, to investments in its territory of investors of any non-Party.
Article 911. Denial of Benefits
Subject to prior notification and consultation, a Party may deny the benefits of this Part to an investor of the other Party that is a juridical person of such Party and to investments of such an investor where the Party establishes that the juridical person is owned or controlled by persons of a non-Party and has no substantive business operations in the territory of the other Party.
Article 912. Expropriation
1. Neither Party shall nationalise, expropriate or subject to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") the investments of investors of the other Party unless the following conditions are complied with:
(a) the expropriation is for a public purpose related to the internal needs of that Party and under due process of law;
(b) the expropriation is non-discriminatory; and
(c) the expropriation is accompanied by the payment of prompt, adequate and effective compensation.
2. The compensation referred to in Sub-paragraph 1(c) of this Article shall be computed on the basis of the market value of the investment immediately before the expropriation or impending expropriation became public knowledge. Where that value cannot be readily ascertained, the compensation shall be determined in accordance with generally recognised principles of valuation and equitable principles taking into account, where appropriate, the capital invested, depreciation, capital already repatriated, replacement value, currency exchange rate movements and other relevant factors.
3. The compensation shall be paid without undue delay, shall include interest at a commercially reasonable rate and shall be freely transferable between the territories of the Parties in a freely useable currency.
Article 913. Compensation for Losses
When a Party adopts any measures relating to losses in respect of investments in its territory by persons of any other country owing to war or other armed conflict, revolution, a state of national emergency, civil disturbance or other similar events, the treatment accorded to investors of the other Party as regards restitution, indemnification, compensation or other settlement shall be no less favourable than that which the first Party accords to persons of any third country.
Article 914. Payments and Transfers
1. Subject to Article 1605, each Party shall, when requested by an investor of the other Party, permit all funds of that investor related to an investment in its territory to be transferred freely and without undue delay in a freely useable currency into and out of its territory. (5) Such funds include the following:
(a) the initial capital plus any additional capital used to maintain or expand the investment;
(b) returns;
(c) proceeds from the sale or partial sale or liquidation of the investment;
(d) repayments of a claim to money;
(e) payment for the losses referred to in Article 913; and
(f) earnings and other remuneration of personnel engaged from abroad in connection with that investment.
2. Unless otherwise agreed by the investor and the Party concerned, transfers shall be made at the market exchange rate prevailing on the date of transfer in accordance with the laws, regulations and policies of the Party that admitted the investment.
3. Notwithstanding Paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory and in good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors; or
(b) ensuring the satisfaction of judgements in adjudicatory proceedings.
Article 915. Subrogation
1. If a Party or an agency of a Party makes a payment to an investor of that Party under a guarantee, a contract of insurance against non-commercial risks or other form of indemnity it has granted in respect of an investment, the other Party shall recognise the subrogation or transfer of any right or title in respect of such investment. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party or an agency of a Party has made a payment to an investor of that Party and has taken over rights and claims of the investor, that investor shall not, unless authorised to act on behalf of the Party or the agency of the Party making the payment, pursue those rights and claims against the other Party.
Article 916. Access to Dispute Settlement Mechanisms
1. Each Party shall in accordance with its laws, regulations and policies:
(a) provide investors of the other Party who have made investments within its territory and personnel employed by them for activities associated with investments full access to its competent judicial or administrative bodies in order to afford means of asserting claims and enforcing rights in respect of disputes with its own investors;
(b) permitits investors to select means of their choice to settle disputes relating to investments with the investors of the other Party, including arbitration conducted in a third country; and
(c) ensure the enforcement of any resulting judgments or awards.
2. Nothing in this Article requires a Party to recognise or enforce the judgments or awards of the judicial or administrative bodies of the other Party or of a non-Party.
Article 917. Settlement of Disputes between a Party and an Investor of the other Party
1. In the event of a dispute between a Party and an investor of the other Party relating to a covered investment, consultations shall take place between the parties concerned with a view to resolving the case amicably.
2. If the dispute in question cannot be resolved through consultations and negotiations (6), the dispute may, at the choice of the investor, be:
(a) initiated before the Party's competent judicial or administrative bodies, in accordance with the laws and regulations of the Party; or
(b) resolved by an international ad hoc arbitral tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
3. If, after the entry into force of this Agreement, a Party enters into an international agreement with a non-Party (7), that:
(a) grants investors of that non-Party the right to submit to arbitration a claim relating to a dispute between that investor and the Party relating to an investment; and
(b) provides for a means to resolve the dispute that is not included in Paragraph 2;
then the investor of the other Party referred to in Paragraph 1 may, at its choice, use that means of resolving the dispute.
4. Once an action referred to in Paragraph 2 or 3 of this Article has been taken, neither Party shall pursue the dispute through diplomatic channels unless:
(a) the relevant dispute settlement body has decided that it has no jurisdiction in relation to the dispute in question; or
(b) the other Party has failed to abide by or comply with any judgment, award, order or other determination made by the relevant dispute settlement body.
5. Inany proceeding involving a dispute relating to a covered investment, a Party shall not assert, at any stage of proceedings referred to in Sub-paragraph 2 (b) or Paragraph 3, that the investor concerned has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of any alleged loss.
6. Any arbitral tribunal established under this Article shall, in the event of a dispute related to an alleged breach of an obligation of this Chapter, reach its decision on the basis of the provisions of the present Agreement, as well as applicable rules of international and domestic law.
7. All arbitral awards shall be final and binding on the parties to the dispute.
8. All sums received or payable as a result of a settlement shall be freely transferable in a freely useable currency.
9. This Article shall not be construed to allow an investor of a Party to pursue a claim against the other Party in relation to any decision that any foreign investment authority of that Party makes in relation to, or conditions that any foreign investment authority of that Party may have placed on, the establishment, acquisition or expansion of an investment by that investor, or in relation to the enforcement of any such conditions.
Part V. Modification and Review of Commitments
Article 918. Modification of Commitments
By giving three months' written notification to the other Party, a Party may modify its commitments. At the request of the other Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary adjustment required to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in schedules of specific commitments prior to such negotiations. If agreement is not reached, the matter may be referred to arbitration in accordance with Chapter 18.
Article 919. Review of Commitments
1. If, after this Agreement enters into force, a Party enters into any agreement on investment with a non-Party, it shall consider a request by the other Party for the incorporation in this Agreement of treatment no less favourable than that provided under the former agreement.
2. If, after this Agreement enters into force, a Party further liberalises any of its measures applying to investors or investments, it shall consider a request by the other Party for the incorporation in this Agreement of the unilateral liberalisation.
Chapter 10. Movement of Natural Persons
Article 1001. Objectives
The objectives of this Chapter are:
(a) to provide for rights and obligations additional to those set out in Chapter 8 and Chapter 9 in relation to the movement of natural persons between the Parties; and
(b) to enhance the mobility of natural persons of either Party engaged in the conduct of trade and investment between the Parties, by facilitating temporary business entry and establishing simplified and transparent immigration formalities for business persons.
Article 1002. Definitions
For the purposes of this Chapter:
(a) "business visitor" means a natural person of either Party who is:
(i) a service seller;
(ii) an investor of a Party, or a representative of an investor, seeking temporary entry to establish an investment; or
(iii) seeking temporary entry for the purposes of negotiating the sale of goods where such negotiations do not involve direct sales to the general public;
(b) "contractual service supplier" means a natural person of a Party who satisfies any requirements under the laws, regulations and policies of the other Party or satisfies any recognition of standards requirements or criteria agreed by the Parties to provide such services in the territory of that Party, and:
(i) is an employee ofa service supplier or a juridical person of a Party not having a commercial presence or investment in the other Party, which has concluded a service contract with a juridical person registered and engaged in substantive business operations in the other Party; or
(ii) is a national of a Party and employed under an employment contract by a juridical person registered and engaged in substantive business operations in the other Party;
and is seeking temporary entry to provide a service as a manager, executive or specialist;
(c) "executive" means a natural person within an organisation who primarily directs the management of the organisation, exercises wide latitude in decision making, and receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the business. An executive would not directly perform tasks related to the actual provision of the service or the operation of an investment;
(d) "immigration formality" means a visa, work permit, or other document or electronic authority granting a natural person of one Party the right to reside or work in the territory of the other Party;
(e) "intra-corporate transferee" means an employee of a service supplier, investor or juridical person of a Party established in the territory of the other Party through a branch or affiliate, and who is a manager, executive or specialist;
(f) "manager" means a natural person within an organisation who primarily directs the organisation or a department or sub-division of the organisation, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire or take other personnel actions (such as promotion or leave authorisation), and exercises discretionary authority over day-to-day operations. This does not include a first-line supervisor unless the employees supervised are professionals;
(g) "service seller" means a natural person of a Party who is a sales representative of a service supplier of that Party and is seeking temporary entry to the other Party for the purpose of negotiating the sale of services for that service supplier, where such a representative will not be engaged in making direct sales to the general public or in supplying services directly;
(h) "specialist" means a natural person within an organisation who possesses knowledge at an advanced level of technical expertise, and who possesses proprietary knowledge of the organisation's service, research equipment, techniques, or management; or a natural person with high-level technical or professional qualifications and skills and experience; and
(i) "temporary entry" means entry by a business visitor, or an intra-corporate transferee, or a contractual service supplier as the case may be, without the intent to establish permanent residence and for the purpose of engaging in activities which are clearly related to their respective business purposes. Additionally, in the case of a business visitor, the salaries of and any related payments to such a visitor should be paid entirely by the service supplier or juridical person which employs that visitor in the visitor's home country.
Article 1003. Scope
1. This Chapter shall apply to measures affecting the movement of natural persons of a Party into the territory of the other Party where such persons are:
(a) contractual service suppliers of the first Party;
(b) intra-corporate transferees of the first Party;
(c) service sellers of the first Party;
(d) investors of the first Party in respect of an investment of that investor in the territory of the other Party; or
(e) natural persons employed by an investor of the first Party in respect of an investment of that investor in the territory of the other Party.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, or measures regarding citizenship, residence or employment on a permanent basis.
Article 1004. Short-term Temporary Entry
A Party shall, upon application by a business visitor of the other Party who meets its criteria for the grant of an immigration formality, grant that business visitor, through the issue of an immigration formality, the right to temporary entry in the granting Party's territory for a period of up to 90 days.
Article 1005. Long-term Temporary Entry
A Party shall, in accordance with commitments in Annex 8, grant temporary entry to an intra-corporate transferee or a contractual service supplier of the other Party who meets its criteria for the grant of an immigration formality unless there has been a breach of any of the conditions governing temporary entry, or an application for an extension of an immigration formality has been refused on such grounds of national security or public order by the granting Party as it deems fit.
Article 1006. Provision of Information
A Party shall publish or otherwise make available to the other Party such information as will enable the other Party to become acquainted with its measures relating to this Chapter.
Article 1007. Immigration Measures
Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party 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 the other Party under the terms of this Chapter. The sole fact of requiring a visa for natural persons of certain countries and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment.
Article 1008. Expeditious Application Procedures
A Party shall process expeditiously applications for immigration formalities from natural persons of the other Party, including further immigration formality requests or extensions thereof.
Chapter 11. Electronic Commerce
Article 1101. Objectives and Definitions
1. The Parties recognise the economic growth and opportunities provided by electronic commerce, the importance of avoiding barriers to its use and development, and the applicability of relevant WTO rules.
2. The objective of this Chapter is to promote electronic commerce between the Parties, including by encouraging cooperation on e-commerce alliances.
3. For the purposes of this Chapter:
(a) "electronic version" means a document in an electronic format prescribed by a Party, including a document sent by facsimile transmission; and
(b) "trade administration documents" means paper forms issued or controlled by the Government of a Party which must be completed by or for an importer or exporter in relation to the import or export of goods.
Article 1102. Customs Duties
Each Party shall maintain its current practice of not imposing customs duties on electronic transmissions between Australia and Thailand.
Article 1103. Domestic Regulatory Frameworks
1. Each Party shall maintain domestic legal frameworks governing electronic transactions based on the UNCITRAL Model Law on Electronic Commerce 1996.
2. Each Party shall:
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that regulatory frameworks support industry-led development of electronic commerce.
Article 1104. Electronic Authentication and Digital Certificates
1. Each Party shall maintain domestic legislation for electronic authentication that:
(a) permits parties to electronic transactions to determine the appropriate authentication technologies and implementation models for their electronic transactions, without limiting the recognition of such technologies and implementation models; and