1. Each Party may adopt or maintain measures for prudential reasons, such as:
(a) the protection of investors, depositors, policyholders or persons to whom a fiduciary duty is owed by a financial service supplier;
(b) ensuring the integrity and stability of a Party's financial system.
2. These measures shall not be more burdensome than necessary to achieve their aim.
3. 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.
4. Without prejudice to other means of prudential regulation of cross-border trade in financial services, a Party may require the registration of cross-border financial service suppliers of the other Party and of financial instruments.
Article 121. Effective and Transparent Regulation
1. Each Party shall make its best endeavours to provide in advance to all interested persons any measure of general application that the Party proposes to adopt in order to allow such persons an opportunity to comment on the measure. Such measure shall be provided:
(a) by means of an official publication; or
(b) in other written or electronic form.
2. Each Party shall make available to all interested persons its requirements for completing applications relating to the supply of financial services.
On the request of an applicant, the concerned Party shall inform the applicant of the status of its application. If the concerned Party requires additional information from the applicant, it shall notify the applicant without undue delay.
Each Party shall make its best endeavours to ensure that internationally agreed standards for regulation and supervision in the financial services sector and for the fight against tax evasion and avoidance are implemented and applied in its territory. Such internationally agreed standards are, inter alia, the Basel Committee's "Core Principle for Effective Banking Supervision", the International Association of Insurance Supervisors' "Insurance Core Principles", the International Organisation of Securities Commissions' "Objectives and Principles of Securities Regulation", the OECD's "Agreement on exchange of information on tax matters", the G20's "Statement on Transparency and exchange of information for tax purposes", and the Financial Action Task Force's "Forty Recommendations on Money Laundering" and "Nine Special Recommendations on Terrorist Financing".
The Parties also take note of the "Ten Key Principles for Information Exchange" promulgated by the Finance Ministers of the G7 Nations, and will take all steps necessary to try to apply them in their bilateral contacts.
Article 122. New Financial Services
Each Party shall permit a financial service supplier of the other Party established in the territory of that Party to provide any new financial service of a type similar to those services that the Party would permit its own financial service suppliers to provide under its domestic law in like circumstances. A Party may determine the juridical form through which the service may be provided and may require authorisation for the provision of the service. Where such authorisation is required, a decision shall be made within a reasonable time and the authorisation may only be refused for the reasons set out in Article 120 of this Agreement.
Article 123. Data Processing
1. Each Party shall permit a financial service supplier of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing where such processing is required in the ordinary course of business of such financial service supplier.
2. Each Party shall adopt adequate safeguards for the protection of privacy and fundamental rights and the freedom of individuals, in particular with regard to the transfer of personal data.
Article 124. Specific Exceptions
1. Nothing in this Chapter shall be construed in such a way as to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the Party's domestic regulation, by financial service suppliers in competition with public entities or private institutions.
2. Nothing in this Agreement applies to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies.
3. Nothing in this Chapter shall be construed in such a way as to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account of, or with the guarantee or using the financial resources of the Party, or its public entities.
Article 125. Self-Regulatory Organisations
When a Party requires membership of or participation in, or access to, any self- regulatory body, securities or futures exchange or market, clearing agency, or any other organisation or association, in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial service suppliers of the Party, or when the Party provides directly or indirectly such entities, privileges or advantages in supplying financial services, the Party shall ensure observance of the obligations under Articles 84 and 90 of this Agreement.
Article 126. 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 is not intended to confer access to the Party's lender of last resort facilities.
Subsection 7. TRANSPORT SERVICES
Article 127. Scope
This Sub-section sets out the principles regarding the liberalisation of transport services pursuant to Sections 2, 3 and 4 of this Chapter.
Article 128. International Maritime Transport
1. This Agreement applies to international maritime transport between the ports of Ukraine and of the United Kingdom. It also applies to trades between the ports of Ukraine and third countries and between the ports of the United Kingdom and third countries.
2. This Agreement shall not apply to domestic maritime transport between the ports of Ukraine or between the ports of the United Kingdom. Notwithstanding the previous sentence, the movement of equipment, such as empty containers, not being carried as cargo against payment between the ports of Ukraine or between the ports of the United Kingdom shall be regarded as a part of international maritime transport.
3. For the purposes of this Sub-section and Sections 2, 3 and 4 of this Chapter:
(a) "international maritime transport" includes door to door and multi-modal transport operations, which is the carriage of goods using more than one mode of transport, involving a sea-leg, under a single transport document, and to this effect direct contracting with providers of other modes of transport;
(b) "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/discharging of cargo to/from a ship;
(ii) the lashing/unlashing of cargo;
(iii) the reception/delivery and safekeeping of cargoes before shipment or after discharge;
(c) "customs clearance services" (alternatively "customs house brokers' services") means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or through transport of cargoes, whether this service is the main activity of the service provider or a usual complement of its main activity;
(d) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing/stripping, repairing and making them available for shipments;
(e) "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.
(f) "freight forwarding services" means the activity consisting of 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.
(g) "feeder services" means the pre- and onward transport of international cargoes by sea, in particular containerised, between ports located in a Party.
4. Each Party shall grant to vessels 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 vessels, or those of any third country, whichever are the better, with regard to, inter alia, access to ports, the use of infrastructure and services of ports, and the use of maritime auxiliary services (27), as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
5. The Parties shall apply effectively the principle of unrestricted access to the international maritime markets and trades on a commercial and non discriminatory basis.
6. In applying the principles of paragraphs 4 and 5 of this Article, the Parties shall, upon entry into force of this Agreement:
(a) not introduce cargo sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate such cargo sharing arrangements in the case they exist in previous agreements; and
(b) abolish or abstain from implementing any administrative, technical, or other measures, which could constitute an indirect restriction and have discriminatory effects against nationals or companies of the other Party in the supply of services in international maritime transport.
7. Each Party shall permit international maritime transport service suppliers of the other Party to have establishments in its territory under conditions of establishment and operation no less favourable than those accorded to its own service suppliers or those of any third country, whichever are the better. In accordance with the provisions of Section 2 of this Chapter, in respect of the activities of such establishments, each Party shall permit the service suppliers of the other Party, in accordance with its laws and regulations, to engage in economic activities, such as, but not limited to:
(a) publishing, marketing and sales of maritime transport and related services, from quotation to invoicing, on their own account or on behalf of other service suppliers of international maritime transport, through direct contact with customers;
(b) provision of business information by any means, including computerised information systems and electronic data interchange (subject to any non-discriminatory restrictions concerning telecommunications);
(c) preparation of documentation concerning transport and customs and other documents related to the origin and character of what is being transported;
(d) organising the call of vessels or taking delivery of cargoes on their own account or on behalf of other service suppliers of international maritime transport;
(e) setting up of any business arrangement with any locally established shipping agency, including participation in the company's stock and the appointment of personnel recruited locally or recruited from abroad subject to the relevant provisions of this Agreement;
(f) purchase and use, on their own account or on behalf of their customers (and the resale to their customers), of transport services by all modes, including inland waterways, road and rail, and services auxiliary to all modes of transport, necessary for the supply of an integrated transport service;
(g) owning the equipment necessary for conducting economic activities.
8. Each Party shall make available to service suppliers of international maritime transport of the other Party on reasonable and non-discriminatory terms and conditions the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electrical supplies, emergency repair facilities, anchorage, berth and berthing services.
9. Each Party shall allow services suppliers of international maritime transport of the other Party to provide international maritime transport services involving a sea- leg in the inland waterways of the other Party.
10. Each Party shall allow services suppliers of international maritime transport of the other Party to have use of, on a non-discriminatory basis and on agreed terms between the companies concerned, feeder services between the ports of Ukraine or between the ports of the United Kingdom that are provided by the service suppliers of maritime transport registered in the former Party.
11. This Agreement shall not affect the application of the maritime agreements concluded between Ukraine and the United Kingdom for issues falling outside the scope of this Agreement. Except for the situation referred to in the preceding sentence, the provisions of this Agreement replace those of previous bilateral agreements concluded between the United Kingdom and Ukraine, if the latter provisions are either inconsistent with the former, or identical to them. Provisions of existing bilateral agreements not covered by this Agreement shall continue to apply.
Article 129. Road, Rail and Inland Waterways Transport
1. With a view to assuring a coordinated development and progressive liberalisation of transport between the Parties adapted to their reciprocal commercial needs, the conditions of mutual market access in road, rail and inland waterways transport shall be dealt with by possible future special road, rail and inland waterways transport agreements.
2. Prior to the conclusion of the agreements referred to in paragraph 1 of this Article, the Parties shall not render the conditions of mutual market access more restrictive between the Parties as compared to the situation existing on the day preceding the day of entry into force of this Agreement.
3. The provisions of existing bilateral agreements which are not covered by future possible agreements referred to in paragraph 1 of this Article shall continue to apply.
Article 130. Air Transport
1. With a view to ensuring a coordinated development and progressive liberalisation of transport between the Parties adapted to their reciprocal commercial needs, the conditions of mutual market access in air transport should be dealt in accordance with the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ukraine concerning Air Services as amended from time to time.
Section 6. ELECTRONIC COMMERCE
Article 131. Objective and Principles
1. The Parties, recognising that electronic commerce increases trade opportunities in many sectors, agree to promote the development of electronic commerce between them, in particular by co-operating on the issues raised by electronic commerce under the provisions of this Chapter.
2. The Parties agree that the development of electronic commerce must be fully compatible with the highest international standards of data protection, in order to ensure the confidence of users of electronic commerce.
3. The Parties agree that electronic transmissions shall be considered as the provision of services, within the meaning of Section 3 (Cross-border supply of services) of this Chapter, which cannot be subject to customs duties.
Article 132. Regulatory Aspects of Electronic Commerce
1. The Parties shall maintain a dialogue on regulatory issues raised by electronic commerce, which will inter alia address the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services,
(b) the liability of intermediary service providers with respect to the transmission or storage of information,
(c) the treatment of unsolicited electronic commercial communications, (d) the protection of consumers within the ambit of electronic commerce, (e) any other issue relevant to the development of electronic commerce.
2. Such cooperation can take the form of exchange of information on the Parties' respective legislation on these issues as well as on the implementation of such legislation.
Section 7. EXCEPTIONS
Article 133. General Exceptions
1. Without prejudice to general exceptions set out in Articles 407 of this Agreement, the provisions of this Chapter and of Annexes XII-A, XII-B, XII-C, XII- D, XII -E and XII-F to this Agreement are subject to the exceptions contained in this Article.
2. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on establishment or cross-border supply of services, nothing in this Chapter shall be construed in such a way as to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic investors or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety.
(f) inconsistent with Article 84(1) and Article 90 of this Agreement, provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, investors or services suppliers of the other Party. (28)
3. The provisions of this Chapter and of Annexes XII-A, XII-B, XII-C, XII-D, XII-E and XII F to this Agreement shall not apply to the Parties' respective social security systems or to activities in the territory of each Party, which are connected, even occasionally, with the exercise of official authority.
Article 134. Recognition and Taxation Measures
The MFN treatment granted in accordance with the provisions of this Chapter shall not apply to:
(a) Treatment granted under measures providing for recognition of qualifications, licenses, or prudential measures in accordance with Article VII of GATS or its Annex on Financial Services;
(b) the tax treatment granted under any international agreement or arrangement relating wholly or mainly to taxation.
Article 135. Security Exceptions
Nothing in this Agreement shall be construed in such a way as:
(a) to require any Party to fumish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) connected with the production of or trade in arms, munitions or war material;
(ii) relating to economic activities carried out directly or indirectly for the purpose of provisioning a military establishment;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(iv) taken in time of war or other emergency in international relations; or
(c) to prevent any Party from taking any action in pursuance of obligations it has accepted for the purpose of maintaining international peace and security.
Chapter 7. CURRENT PAYMENTS AND MOVEMENT OF CAPITAL
Article 136. Current Payments
The Parties undertake to impose no restrictions and shall allow, in freely convertible currency, in accordance with the provisions of Article VII of the Articles of the Agreement of the IMF, any payments and transfers on the current account of balance of payments between the Parties.
Article 137. Capital Movements
1. With regard to transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to direct investments (29) made in accordance with the laws of the host country, to investments made in accordance with the provisions of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement and to the liquidation or repatriation of such invested capitals and of any profit stemming therefrom.
2. With regard to other transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement and without prejudice to other provisions of this Agreement the Parties shall ensure:
(a) the free movement of capital relating to credits related to commercial transactions or to the provision of services in which a resident of one of the Parties is participating;
(b) the free movement of capital relating to portfolio investments and financial loans and credits by the investors of the other Party.
3. Without prejudice to other provisions of this Agreement, the Parties shall not introduce any new restrictions on the movement of capital and current payments between residents of the United Kingdom and Ukraine and shall not make the existing arrangements more restrictive.
Article 138. Safeguard Measures
1. Without prejudice to other provisions of this Agreement, where, in exceptional circumstances, payments or movements of capital between the Parties cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy (30) in the United Kingdom or Ukraine, the Parties concerned may take safeguard measures for a period not exceeding six months with the right to extend the validity period of previous measures for another period in accordance with the laws of the Parties if such measures are strictly necessary. The Party adopting the safeguard measure shall inform the other Party forthwith of the adoption of such measure.
2. The provisions of this Chapter shall not be construed as preventing 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, or futures, options and other financial instruments;
(c) financial reporting or record keeping of capital movements, payments or transfers where necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.
3. The laws and regulations referred to in paragraph 2 shall not be applied in an arbitrary or discriminatory manner, or otherwise constitute a disguised restriction on capital movements, payments or transfers.
Article 139. Facilitation and Further Liberalisation Provisions
The Parties shall consult each other with a view to facilitating the movement of capital between the Parties in order to promote the objectives of this Agreement.
Chapter 8. PUBLIC PROCUREMENT
Article 140. Objectives
The Parties recognise the contribution of transparent, non-discriminatory, competitive and open tendering to sustainable economic development and set as their objective the effective, reciprocal and gradual opening of their respective procurement markets.
This Chapter envisages mutual access to public procurement markets on the basis of the principle of national treatment at national, regional and local level for public contracts and concessions in the traditional sector as well as in the utilities sector.
Article 141. Scope
1. This Chapter applies to works, supplies and services public contracts, as well as works, supplies and services contracts in the utilities sectors and works and services concessions.
2. This Chapter applies to any contracting authority and any contracting entity which meets the definitions of the United Kingdom or Ukraine public procurement domestic law (hereinafter both referred to as the "contracting entities"). It covers also bodies governed by public law and public undertakings in the field of utilities such as state-owned enterprises carrying out the relevant activities and private undertakings operating on the basis of special and exclusive rights in the field of utilities.
3. This Chapter applies to contracts above value thresholds set out in Annex XVI- C:
The calculation of the estimated value ofa public contract shall be based on the total amount payable, net of Value Added Tax. When applying these thresholds, Ukraine will calculate and convert these values into its own national currency, using the exchange rate of its National Bank.
These value thresholds shall be revised regularly every two years, beginning in the first even year following the entry into force of this Agreement, based on the average daily value of the Euro, expressed in Special Drawing Rights, over the 24 months terminating on the last day of August preceding the revision with effect from January 1. The value of the thresholds thus revised shall, where necessary, be rounded down to nearest thousand Euro. The revision of the thresholds shall be adopted by the Trade Committee according to the procedure defined in Title VII (Institutional General and Final Provisions) of this Agreement.
Article 142. Institutional Background
1. The Parties shall establish or maintain an appropriate institutional framework and mechanisms necessary for the proper functioning of the public procurement system and the implementation of the relevant principles.
2. Ukraine shall designate in particular:
(a) a central executive body responsible for economic policy tasked with guaranteeing a coherent policy in all areas related to public procurement. Such a body shall facilitate and coordinate the implementation of this Chapter;
(b) an impartial and independent body tasked with the review of decisions taken by contracting authorities or entities during the award of contracts. In this context, "independent" means that that body shall be a public authority which is separate from all contracting entities and economic operators. There shall be a possibility to subject the decisions taken by this body to judicial review.
3. The Parties shall ensure that decisions taken by the authorities responsible for the review of complaints shall be effectively enforced.
Article 143. Basic Standards Regulating the Award of Contracts
1. The Parties shall comply with a set of basic standards for the award of all contracts as stipulated in paragraphs 2 to 15 of this Article. These basic standards derive directly from the rules and principles of public procurement, including the principles of non-discrimination, equal treatment, transparency and proportionality.