Article 12.5. Most-Favoured-Nation Treatment
Each Party shall accord to services and service suppliers of another Party treatment no less favourable than that it accords, in like circumstances, to services and service suppliers of a non-Party.
Article 12.6. Market Access
No Party shall, either on the basis of a regional subdivision or on the basis of its entire territory, adopt or maintain:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (4)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test; and
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 12.7. Local Presence
No Party May Require a Service Supplier of Another Party to Establish or Maintain a Representative Office or Any Form of Enterprise, or to Be Resident, In Its Territory as a Condition for the Supply of a Service.
Article 12.8 . Non-Conforming Measures
1. Articles 12.4, 12.5, 12.6 and 12.7 shall not apply to:
1. (a) any existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex III, or
(ii) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in Subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in Subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 12.4, 12.5, 12.6 and 12.7.
2. Articles 12.4, 12.5, 12.6 and 12.7 do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities, as set out in its Schedule to Annex IV.
Article 12.9. Review
The Parties shall consult within two years of entry into force of this Agreement and at least every three years thereafter, or as otherwise agreed, to review the implementation of this Chapter and consider other trade in services issues of mutual interest, with a view to the progressive liberalisation of the trade in services among them on a mutually advantageous basis.
Article 12.10. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards, and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall ensure that any such measures that it adopts or maintains are:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
3. In determining whether a Party is in conformity with its obligations under Paragraph 2, account shall be taken of international standards of relevant international organisations applied by that Party.
4. Where a Party requires authorisation for the supply of a service, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application. This obligation shall not apply to authorisation requirements that are within the scope of Article 12.8(2).
5. If the results of the negotiations related to Article Vl:4 of GATS (or the results of any similar negotiations undertaken in other multilateral forums in which the Parties participate) enter into effect, the Parties shall jointly review these results with a view to their incorporation in this Agreement. The Parties agree to coordinate on such negotiations as appropriate.
Article 12.11. Professional Qualifications and Registration
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of Paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licenses or certifications granted in a particular Party or non-Party.
2. Where a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-Party, nothing in Article 12.5 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the territory of another Party.
3. A Party that is a party to an agreement or arrangement of the type referred to in Paragraph 1, whether existing or future, shall afford adequate opportunity for another Party, upon request, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Partyâs territory should be recognised.
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
5. As set out in Annex 12.B, the Parties agree to facilitate the establishment of dialogue among their regulators and/or relevant industry bodies with a view to the achievement of early outcomes on recognition of professional qualifications and/or professional _ registration. Such outcomes may be achieved through harmonisation, recognition of regulatory outcomes, recognition of professional qualifications and professional registration awarded by one Party as a means of complying with the regulatory requirements of another Party whether accorded unilaterally or by mutual arrangement, including where appropriate through an Implementing Arrangement.
6. The initial priority areas for work on professional qualification and professional recognition requirements are engineers, architects, geologists, geophysicists, planners, and accountants. The priority areas and the recognition outcomes achieved on priorities shall be reviewed within the time periods set out in Article 12.9.
Article 12.12. Denial of Benefits
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to:
(a) service suppliers of another Party where the service is being supplied by an enterprise that is owned or controlled by persons of a non-Party and the enterprise has no substantive business operations in the territory of any Party; or
(b) service suppliers of another Party where the service is being supplied by an enterprise that is owned or controlled by persons of the denying Party and the enterprise has no substantive business operations in the territory of any Party.
Article 12.13. Transparency
1. Each Party shall publish promptly or otherwise make publicly available international agreements pertaining to or affecting trade in services to which it is a signatory.
2. Each Party shall respond promptly to all requests by any other Party for specific information on any of its measures of general application which pertain to or affect the operation of this Chapter or international agreements within the meaning of Paragraph 1.
3. Each Party shall also designate one or more enquiry points to provide specific information to the other Parties, upon request, on all such matters.
Article 12.14. Subsidies
Notwithstanding Article 12.3, the Parties shall review the issue of disciplines on subsidies related to trade in services in the light of any disciplines agreed under Article XV of GATS with a view to their incorporation into this Agreement.
Article 12.15. Payments and Transfers
Except as provided in Annex 12.C, each Party shall permit all payments and transfers for current transactions and capital movements, with regard to trade in services.
Chapter 13. TEMPORARY ENTRY
Article 13.1. Definitions for the Purposes of this Chapter:
Business person means a natural person who has the nationality of a Party according to Annex 2.A, who is engaged in trade in goods or supply of services;
immigration measure means any law, regulation, policy or procedure affecting the entry and stay of foreign nationals;
temporary entry means the entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Article 13.2. Objectives
1. The objectives of this Chapter are to facilitate the temporary entry of business persons of any Party engaged in trade in goods or supply of services among the Parties through streamlined, transparent immigration clearance procedures for temporary entry, while at the same time ensuring border security and protecting the domestic labour force and permanent employment in the territories of the Parties.
2. The Parties affirm their voluntary commitments established in the APEC Business Travel Card ”Operating Framework“.
Article 13.3. Scope
1. This Chapter does not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
2. In respect of business persons seeking entry under Chapter 12 (Trade in Services), the Parties affirm their rights and obligations under GATS, in particular the Annex on Movement of Natural Persons Supplying Services under the Agreement, regarding each Partiesâ specific commitments relating to movement of natural persons.
Article 13.4. Exchange of Information
1. No later than 6 months after the entry into force of this Agreement, the Parties shall exchange information on measures that affect the temporary entry of business persons through the contact points designated under Article 14.5 (Contact Points).
2. When a Party modifies or amends an immigration measure that affects the temporary entry of business persons, such modifications or amendments shall be published and made available in such a manner as will enable business persons of the other Parties to become acquainted with them.
Article 13.5. Review
1. Two years after the entry into force of this Agreement, the Parties shall review the rules and conditions applicable to movement of natural persons, with a view to achieving a comprehensive chapter on temporary entry, covering broad categories of business persons, such as may be proposed by any Party.
2. If the Parties achieve a mutually advantageous balance of rights in the
negotiations foreseen in Paragraph 1, the review will also address the scope of the definition of business person set out in Article 13.1.
Chapter 14. TRANSPARENCY
Article 14.1. Definitions for the Purposes of this Chapter:
Administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations and that is relevant to the implementation of this Agreement but does not include:
(a) a determination or ruling made in administrative or quasi-judicial proceedings that applies to a particular person, good, or service of another Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 14.2. Publication
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Agreement are promptly published or otherwise made available (1) in such a manner as to enable interested persons and Parties to become acquainted with them.
2. When possible, each Party shall:
(a) publish in advance any measure referred to in Paragraph 1 that it proposes to adopt; and
(b) provide, where appropriate, interested persons and Parties with a reasonable opportunity to comment on such proposed measures.
Article 14.3. Administrative Proceedings
With a view to administering in a consistent, impartial, and reasonable manner all measures affecting matters covered by this Agreement, each Party shall ensure in its administrative proceedings applying measures referred to in Article 14.2(1) to particular persons, goods, or services of the other Parties in specific cases that:
"Including through the Internet or in print form. 14-1
(a) | wherever possible, persons of another Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in question;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding, and the public interest permit; and
(c) its procedures are in accordance with domestic law.
Article 14.4. Review and Appeal
1. Each Party shall, where warranted, establish or maintain judicial, quasi- judicial, or administrative tribunals, or procedures for the purpose of the prompt review and correction of final administrative actions regarding matters covered by this Agreement, other than those taken for prudential reasons. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the Parties to the proceedings are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decision shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
Article 14.5. Contact Points
1. Each Party shall designate a contact point or points to facilitate communications among the Parties on any matter covered by this Agreement.
2. On the request of another Party, the contact points shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the requesting Party.
Article 14.6. Notification and Provision of Information
1. Where a Party considers that any proposed or actual measure might materially affect the operation of this Agreement or otherwise substantially affect another Party's interests under this Agreement, that Party shall notify the interested Party, to the extent possible, of the proposed or actual measure.
2. On request of another Party, a Party shall provide information and respond to questions pertaining to any actual or proposed measure, whether or not that other Party has been previously notified of that measure.
3. Any notification, request, or information under this Article shall be conveyed to the other Parties through their contact points.
4. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Chapter 15. DISPUTE SETTLEMENT
Article 15.1. Objectives
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
2. The objective of this Chapter is to provide an effective, efficient and transparent process for consultations and settlement of disputes among the Parties concerning their rights and obligations under this Agreement.
Article 15.2. Scope
1. Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply:
(a) with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement;
(b) wherever a Party considers that an actual or proposed measure of another Party is or would be inconsistent with the obligations of this Agreement or that another Party has otherwise failed to carry out its obligations under this Agreement; or
(c) wherever a Party considers that an actual or proposed measure of another Party causes nullification or impairment in the sense of Annex 15.A.
2. Subject to Article 15.3, this Chapter is without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other agreements to which they are parties.
Article 15.3. Choice of Forum
1. Where a dispute regarding any matter arises under this Agreement and under another trade agreement to which the disputing Parties are party, the complaining Party may select the forum in which to settle the dispute.
2. The complaining Party shall notify the other Parties in writing of its intention to bring a dispute to a particular forum before doing so. Where a Party wishes to have recourse to a different dispute settlement forum from that notified by another complaining Party, the complaining Parties shall consult with a view to reaching agreement on a single forum in which to settle the dispute.
3. Once a complaining Party has initiated dispute settlement proceedings under Article 15.6, under the WTO Agreement or any other trade agreement to which the disputing Parties are party, (1) the forum selected shall be used to the exclusion of the others.
4. Where there is more than one dispute on the same matter arising under this Agreement against a Party, the disputes shall be joined.
Article 15.4. Consultations
1. Any Party may request in writing consultations with any other Party with respect to any actual or proposed measure of that Party that it considers inconsistent with this Agreement or any other matter that it considers might affect the operation of this Agreement, which shall be circulated to all Parties to this Agreement through the Contact Points designated in accordance with Article 14.5 (Contact Points).
2. All such requests for consultations shall set out the reasons for the request, including the identification of the actual or proposed measure or other matter at issue and an indication of the legal basis for the complaint.
3. The Party to which a request for consultations is made shall reply to the request in writing within 7 days after the date of its receipt. The response to the request for consultations shall be circulated to all Parties.
4. Whenever a Party other than the consulting Parties considers that it has an interest in the consultations, such Party may notify the consulting Parties within 7 days after the notification of the request for consultations, of its desire to be joined in the consultations. The Party complained against shall give positive consideration to any request from a Party to attend consultations requested by any other Party.
5. The Parties shall enter into consultations within a period of no more than:
(a) 15 days after the date of receipt of the request for matters concerning perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters.
6. The consulting Parties shall make every attempt to reach a mutually satisfactory resolution of any matter through consultations under this Article. To this end, the consulting Parties shall:
(a) provide sufficient information to enable a full examination of how the actual or proposed measure or other matter might affect the operation and application of this Agreement; and
(b) treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.
7. With a view to reaching a mutually satisfactory resolution of the matter, the requesting Party may make representations or proposals to the responding Party, which shall give due consideration to the representations or proposals made to it.
8. In consultations under this Article, a consulting Party may request another consulting Party to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter subject to consultations.
Article 15.5. Good Offices, Conciliation and Mediation
1. Good offices, conciliation and mediation are procedures undertaken voluntarily if the disputing Parties so agree.
2. Proceedings involving good offices, conciliation and mediation, and in particular the positions taken by the disputing Parties during these proceedings, shall be confidential and without prejudice to the rights of any Party in any further proceedings under these procedures.
3. Good offices, conciliation or mediation may be requested at any time by any disputing Party. They may begin at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are concluded without an agreement between the disputing Parties, the complaining Party may request the establishment of an arbitral tribunal under Article 15.6.
4. If the disputing Parties agree, good offices, conciliation or mediation may continue while the dispute proceeds for resolution before an arbitral tribunal convened under Article 15.6.
Article 15.6. Establishment of an Arbitral Tribunal
1. The complaining Party may request, by means of a written notification addressed to the Party complained against, the establishment of an arbitral tribunal if the consulting Parties fail to resolve the matter within:
(a) 45 days after the date of receipt of the request for consultations under Article 15.4;
(b) 30 days after the date of receipt of the request for consultations under Article 15.4 in a matter regarding perishable goods; or
(c) such other period as the consulting Parties agree.
2. Such notification shall also be communicated to all Parties.
3. The request to establish an arbitral tribunal shall identify:
(a) the specific measure at issue;
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached and any other relevant provisions; and
(c) the factual basis for the complaint.
4. Unless otherwise agreed by the disputing Parties, the arbitral tribunal shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
5. Notwithstanding Paragraphs 1, 3, and 4, an arbitral tribunal may not be established to review a proposed measure.
Article 15.7. Composition of Arbitral Tribunals
1. The arbitral tribunal shall comprise three members.
2. In the written notification pursuant to Article 15.6, the complaining Party or Parties requesting the establishment of an arbitral tribunal shall designate one member of that arbitral tribunal.
3. Within 15 days of the receipt of the notification referred to in Paragraph 2, the Party to which it was addressed shall designate one member of the arbitral tribunal.
4. The disputing Parties shall designate by common agreement the appointment of the third arbitrator within 15 days of the appointment of the second arbitrator. The member thus appointed shall chair the arbitral tribunal.
5. If all 3 members have not been designated or appointed within 30 days from the date of receipt of the notification referred to in Paragraph 2, at the request of any Party to the dispute the necessary designations shall be made by the Director- General of the WTO within a further 30 days.
6. The Chair of the arbitral tribunal shall not be a national of any of the Parties, nor have his or her usual place of residence in the territory of any of the Parties, nor be employed by any of the Parties, nor have dealt with the matter in any capacity.