5. For greater certainty, nothing in this Chapter, Chapter 9 (Trade in Services), Chapter 11 (Telecommunications), Chapter 13 (Electronic Commerce) or Chapter 14 (Investment) shall prevent a Party from requiring the non-discriminatory licensing or registration of financial service suppliers supplying a service from the territory of a Party into the territory of the other Party and of financial instruments for prudential reasons in accordance with paragraph 1 of this Article.
Article 10.6. Recognition
1. A Party may recognise prudential measures of any international standard setting body, the other Party, or non-Party in determining how the Party’s measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the international standard setting body, other Party, or a non-Party concerned or may be accorded autonomously.
2. A Party that is a party to such an agreement or arrangement referred to in paragraph 1, whether future or existing, shall afford adequate opportunity for the other Party to negotiate its accession to such an agreement or arrangement, or to negotiate one comparable with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement.
3. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances as referred to in paragraph 2 exist.
Article 10.7. Transparency and Administration of Certain Measures
1. The Parties recognise that transparent measures governing the activities of financial service suppliers are important in facilitating their ability to gain access to and operate in each other's markets.
2. Each Party shall ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective and impartial manner.
3. To the extent practicable, each Party should allow a reasonable period of time between publication of a final regulation of general application and the date when it enters into effect.
4. Each Party shall ensure that the rules of general application adopted or maintained by a self-regulatory organisation of the Party are promptly published or otherwise made available in a manner that enables interested persons to become acquainted with them.
5. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding measures of general application covered by this Chapter.
6. Each Party's regulatory authorities shall make publicly available the requirements, including any documentation required, for completing an application relating to the supply of financial services.
7. On request of an applicant in writing, a Party's regulatory authority shall inform the applicant of the status of its application in writing. If the authority requires additional information from the applicant, it shall notify the applicant without undue delay.
8. A Party's regulatory authority shall make an administrative decision on a complete application of a financial service supplier of the other Party relating to the supply of a financial service, within 180 days and shall notify the applicant of the decision. An application shall not be considered complete until all relevant hearings have been held and all necessary information has been received. If it is not practicable for a decision to be made within 180 days, the regulatory authority shall notify the applicant without undue delay and shall endeavour to make the decision within a reasonable time thereafter.
9. On request of an unsuccessful applicant, a regulatory authority that has denied an application shall, to the extent practicable, inform the applicant of the reasons for denial of the application.
Article 10.8. Self-Regulatory Organisations
Where a Party requires a financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organisation in order to provide a financial service in or into its territory, the Party shall endeavour to ensure that the self- regulatory organisation accords national treatment and most-favoured-nation treatment to financial service suppliers of the other Party in accordance with Article 9.3 (National Treatment) and Article 9.4 (Most-Favoured-Nation Treatment) of Chapter 9 (Trade in Services) and Article 14.4 (National Treatment) and Article 14.5 (Most-Favoured-Nation Treatment) of Chapter 14 (Investment). (4) Each Party shall accord to financial services suppliers of the other Party treatment no less favourable than it accords, in like circumstances, to financial services suppliers of a non-Party with respect to the treatment afforded by self-regulatory organisations.
Article 10.9. Payment and Clearing Systems
Under terms and conditions that accord national treatment, each Party shall grant financial institutions 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. （5）
Article 10.10. Consultations
1. A Party may request, in writing, consultations with the other Party regarding any matter arising under this Agreement that affects financial services, including matters arising at the regional level of government of the other Party. The other Party shall give sympathetic consideration to the request to hold consultations. The Parties shall report the results of their consultations to the Committee on Trade in Services.
2. Consultations under this Article shall include officials of the authorities specified in Annex 10-A.
3. For greater certainty, nothing in this Article shall be construed to require a Party to derogate from its law regarding sharing of information between financial regulators or the requirements of an agreement or arrangement between financial authorities of the Parties, or to require a regulatory authority to take any action that would interfere with specific regulatory, supervisory, administrative or enforcement matters.
Article 10.11. Dispute Settlement
1. Chapter 20 (Consultations and Dispute Settlement) shall apply as modified by this Article to the settlement of disputes concerning measures affecting financial services arising under this Chapter, Chapter 9 (Trade in Services) and Chapter 14 (Investment).
2. If a Party claims that a dispute arises within the meaning of paragraph 1, Article 20.8 (Establishment and Reconvening of Panels) of Chapter 20 (Consultations and Dispute Settlement) shall apply, except that:
(a) if the disputing Parties agree, each panellist shall meet the qualifications in paragraph 3; and
(b) in any other case:
(i) each disputing Party shall select panellists that meet the qualifications set out in either paragraph 3 or Article 20.8 (Establishment and Reconvening of Panels) of Chapter 20 (Consultations and Dispute Settlement); and
(ii) if the responding Party indicates an intention to invoke or invokes Article 10.5 prior to a Party's request for the establishment of a panel, the chair of the panel shall meet the qualifications set out in paragraph 3, unless the disputing Parties otherwise agree.
3. In addition to the requirements set out in Article 20.8 (Establishment and Reconvening of Panels) of Chapter 20 (Consultations and Dispute Settlement), panellists shall have expertise or experience in financial services law or practice, which may include the regulation of financial services.
4. A Party may request the establishment of a panel in accordance with Chapter 20 (Consultations and Dispute Settlement) to consider whether and to what extent Article 10.5 is a valid defence to a claim. The panel shall present its interim and final reports in accordance with Article 20.10 (Panel Procedures) of Chapter 20 (Consultations and Dispute Settlement). The final report of the panel shall be binding on any tribunal established in accordance with Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment) to consider the same measure, and any decision or award issued by such a tribunal must be consistent with the final report of the panel.
5. If a Party seeks to suspend benefits in the financial services sector, a panel that reconvenes to make a determination on the proposed suspension of benefits, in accordance with Article 20.14 (Compensation and Suspension of Concessions or other Obligations) of Chapter 20 (Consultations and Dispute Settlement), shall seek the views of financial services experts, as necessary.
Article 10.12. Investment Disputes In Financial Services
1. If an investor of a Party submits a claim to arbitration under Section B (Investor- State Dispute Settlement) of Chapter 14 (Investment) challenging a measure relating to regulation or supervision of financial services, markets or instruments, the expertise or experience of any particular candidate with respect to financial services law or practice shall be taken into account in the appointment of arbitrators to the tribunal.
2. If an investor of a Party submits a claim to arbitration under Section B (Investor- State Dispute Settlement) of Chapter 14 (Investment), and the disputing Party invokes Article 10.5 as a defence, the following provisions of this Article shall apply:
(a) the disputing Party shall, no later than the date the tribunal fixes for the disputing Party to submit its counter-memorial, or in the case of an amendment to the notice of arbitration, the date the tribunal fixes for the disputing Party to submit its response to the amendment, submit in writing to the authorities responsible for financial services of the Party of the disputing investor, as set out in Annex 10-A, a request for a joint determination by the authorities of the Parties on the issue of whether and to what extent Article 10.5 is a valid defence to the claim. The disputing Party shall promptly provide the tribunal, if constituted, a copy of the request. The arbitration may proceed with respect to the claim only as provided in paragraphs 3 and 4. Any applicable timeframes under Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment) shall be suspended for the duration of the 180 day period established under paragraph 2(d) and the duration of any Chapter 20 (Consultations and Dispute Settlement) proceedings conducted under paragraph 2(d);
(b) the authorities of the Parties shall attempt in good faith to make a determination as described in subparagraph (a). Any such determination shall be transmitted promptly to the disputing parties, the Investment Committee and, if constituted, to the tribunal. The determination shall be binding on the tribunal and any decision or award issued by the tribunal must be consistent with that determination;
(c) if panel has made findings, rulings or recommendations under Article 20.9 (Functions of Panels) of Chapter 20 (Consultations and Dispute Settlement) with respect to the same measure which is the subject of a disputing investor’s claim under Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment), the Parties shall transmit the final report to the disputing parties and the tribunal. The panel report shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with the panel report; and
(d) if the authorities referred to in subparagraphs (a) and (b) have not made a determination within 180 days of the date of receipt of the disputing Party’s written request for a determination under subparagraph (a), either Party may request the establishment of a panel under Chapter 20 (Consultations and Dispute Settlement) to consider whether and to what extent Article 10.5 is a valid defence to the claim. The panel established under Article 20.8 (Establishment and Reconvening of Panels) of Chapter 20 (Consultations and Dispute Settlement) shall be constituted in accordance with Article 10.11. Further to Article 20.10 (Panel Procedures) of Chapter 20 (Consultations and Dispute Settlement), the panel shall transmit its final report to the disputing parties and to the tribunal.
3. If a panel is established under paragraph 2(d), a tribunal established under Article 14.25 (Submission of a Claim) of Chapter 14 (Investment) may only proceed with respecttotheclaimonceithasreceivedthefinalreportofthepanel. Thefinalreportof panel referred to in paragraph 2(d) shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with the final report.
4. If no request for the establishment of a panel in accordance with paragraph 2(d) has been made within 10 days of the expiration of the 120 day period referred to in paragraph 2(d), the tribunal established under Article 14.25 (Submission of a Claim) of Chapter 14 (Investment) may proceed with respect to the claim.
(a) The tribunal shall draw no inference regarding the application of Article 10.5 from the fact that the authorities have not made a determination as described in paragraphs 2(a), (b) and (d).
(b) The Party of the disputing investor may make oral and written submissions to the tribunal regarding the issue of whether and to what extent Article 10.5 is a valid defence to the claim. Unless it makes such a submission, the Party of the disputing investor shall be presumed, for the purposes of the arbitration, to take a position on Article 10.5 that is not inconsistent with that of the disputing Party.
5. For the purposes of this Article, the definitions of the following terms set out in Article 14.1 (Definitions) of Chapter 14 (Investment) are incorporated, mutatis mutandis: ‘disputing investor’, ‘disputing parties’, ‘disputing party’ and ‘disputing Party’
Chapter 11. TELECOMMUNICATIONS
Article 11.1. Definitions
For the purposes of this Chapter:
cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services; (1)
end-user means a final consumer of or subscriber to a public telecommunications service, including an enterprise other than a supplier of public telecommunications services;
enterprise means an enterprise as defined in Article 1.4 (General Definitions) of Chapter 1 (Initial Provisions and Definitions), and a branch of an enterprise;
essential facilities means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to supply a service;
interconnection means linking with suppliers providing public telecommunications networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
international mobile roaming service means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables end-users to use their home mobile handset or other device for voice, data or messaging services while outside the territory in which the end-user’s home public telecommunications network is located;
leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a particular user;
licence means any authorisation that a Party may require of a person, in accordance with its laws and regulations, in order for such person to offer a public telecommunications service or to operate a public telecommunications network, including permits or registrations;
major supplier means a supplier which has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for the supply of public telecommunications networks or services, or parts thereof, as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
physical co-location means access to space in order to install, maintain or repair equipment at premises owned or controlled and used by a supplier to supply public telecommunications networks or services;
public telecommunications network means telecommunications infrastructure used to provide public telecommunications services between defined network termination points;
public telecommunications service means any telecommunications service offered to the public generally. These services may include telephone and data transmission typically involving transmission of customer-supplied information between two or more defined points without any end-to-end change in the form or content of the customer’s information;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with, approved by or determined by a telecommunications regulatory body that sufficiently details the terms, rates and conditions for interconnection so that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;
resale means the supply, by a supplier of public telecommunications services (the first supplier), of public telecommunications services purchased from another supplier of public telecommunications services (the second supplier) and which the second supplier also provides at retail to end-users, without significant alteration to these services;
standard interconnection offer means an interconnection offer extended by a major supplier, which is neither filed with, or approved by a telecommunications regulatory body, but is published and sufficiently details the terms, rates and conditions for interconnection so that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a body or bodies responsible for the regulation of telecommunications. For greater certainty, Ministers or the Cabinet of a Party shall not constitute such a body or bodies; and
user means an end-user or a supplier of public telecommunications networks or services.
Article 11.2. Scope
1. This Chapter shall apply to:
(a) any measure relating to access to and use of public telecommunications networks or services;
(b) any measure relating to obligations regarding suppliers of public telecommunications networks or services; and
(c) any other measure relating to telecommunications networks or services.
2. This Chapter shall not apply to any measure relating to broadcast or cable distribution of radio or television programming, except that:
(a) Article 11.4.1 shall apply with respect to access to and use of public telecommunications networks or services by a service supplier of broadcast or cable distribution of radio or television programming; and
(b) Article 11.22 shall apply to any measure relating to broadcast or cable distribution of radio or television programming, to the extent that the measure also affects public telecommunications networks or services.
3. Nothing in this Chapter shall be construed to:
(a) require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate or provide a telecommunications network or service not offered to the public generally; (2)
(b) require a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network; or
(c) prevent a Party from prohibiting a person who operates a private network from using its private network to supply a public telecommunications network or service to third persons.
Article 11.3. Approaches to Regulation
1. The Parties recognise the value of competitive markets to deliver a wide choice in the supply of telecommunications networks or services and to enhance consumer welfare, and that economic regulation may not be needed if there is effective competition or if a service is new to a market. Accordingly, the Parties recognise that regulatory needs and approaches differ market by market, and that each Party may determine how to implement its obligations under this Chapter.
2. In this respect, the Parties recognise that a Party may:
(a) engage in direct regulation either in anticipation of an issue that the Party expects may arise or to resolve an issue that has already arisen in the market;
(b) rely on the role of market forces, particularly with respect to market segments that are, or are likely to be, competitive or that have low barriers to entry, such as services provided by telecommunications suppliers that do not own network facilities; or
(c) use any other appropriate means that benefit the long-term interest of end-users.
? For greater certainty, nothing in this Chapter shall be construed to require a Party to authorise an enterprise of the other Party to establish, construct, acquire, lease, operate or supply public telecommunications networks or services.
Article 11.4. Access to and Use of Public Telecommunications Networks and Services
1. Each Party shall ensure that any enterprise of the other Party is accorded access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders, on reasonable and non- discriminatory terms and conditions.
2. Each Party shall ensure that any enterprise of the other Party is permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect leased or owned circuits with public telecommunications networks and services or with circuits leased or owned by another enterprise;
(d) perform switching, signalling, processing and conversion functions; and
(e) use operating protocols of their choice other than as necessary to interface with public telecommunications networks and services.
3. Each Party shall ensure that an enterprise of either Party may use public telecommunications services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party or any non-party which is a party to the WTO Agreement.
4. Notwithstanding paragraph 3, a Party may take measures that are necessary to ensure the security and confidentiality of messages and to protect the privacy of personal data of end-users of public telecommunications networks or services, provided that those measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services generally available to the public; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that they satisfy the criteria in paragraph 5, conditions for access to and use of public telecommunications networks and services may include:
(a) a requirement to use a specified technical interface, including an interface protocol, for connection with those networks or services;
(b) arequirement, if necessary, for the interoperability of those networks and services;
(c) type approval of terminal or other equipment that interfaces with the network and technical requirements relating to the attachment of that equipment to those networks; and
(d) a licensing, permit, registration or notification procedure which, if adopted or maintained, is transparent and provides for the processing of applications filed thereunder in accordance with the laws or regulations of a Party.
7. The Parties recognise this Article does not prohibit either Party from requiring an enterprise to obtain a licence to supply any public telecommunications service within its territory.
Article 11.5. Obligations Relating to Suppliers of Public Telecommunications Networks or Services
Interconnection
1. Each Party shall provide its telecommunications regulatory body with the authority to require that suppliers of public telecommunications networks or services in its territory provide, directly or indirectly within the same territory, interconnection with suppliers of public telecommunications services of the other Party in a timely manner, on terms and conditions (including technical standards and specifications), and at cost- oriented rates, that are reasonable (having regard to economic feasibility), non- discriminatory and transparent.
2. In carrying out paragraph 1, each Party shall ensure that suppliers of public telecommunications networks or services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications services obtained as a result of interconnection arrangements and that those suppliers only use that information for the purpose of providing these services.
Access to Numbers
3. Each Party shall ensure that suppliers of public telecommunications services of the other Party established in its territory are afforded access to telephone numbers on a non-discriminatory basis.
Article 11.6. International Mobile Roaming
1. The Parties shall endeavour to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade between the Parties and enhance consumer welfare.
2. A Party may choose to take steps to enhance transparency and competition with respect to international mobile roaming rates, such as ensuring that information regarding retail rates is easily accessible to consumers.
3. Each Party shall ensure that suppliers of public telecommunications services in its territory or its telecommunications regulatory body make publicly available retail rates for international mobile roaming services, for voice, data and text messages.
4. The Parties recognise that a Party, if it has the authority to do so, may choose to adopt or maintain measures affecting rates for wholesale international roaming services with a view to ensuring such rates are reasonable. If a Party considers it appropriate, it may cooperate on and implement mechanisms with the other Party to facilitate the implementation of such measures, including by entering into arrangements with the other Party.
5. If a Party (the first Party) chooses to regulate rates or conditions for wholesale international mobile roaming services, it shall ensure that a supplier of public telecommunications services of the other Party (the second Party) has access to the regulated rates or conditions for wholesale international mobile roaming services for its customers roaming in the territory of the first Party in circumstances where: (3)
(a) the second Party has entered into an arrangement with the first Party to reciprocally regulate rates or conditions for wholesale international mobile roaming services for suppliers of the Parties; (4) or
(b) in the absence of an arrangement of the type referred to in paragraph (a), the supplier of public telecommunications services of the second Party, of its own accord:
(i) makes available to suppliers of public telecommunications services of the first Party wholesale international mobile roaming services at rates or conditions that are reasonably comparable to the regulated rates or conditions,(5) and
(ii) meets any additional requirements that the first Party imposes with respect to the availability of the regulated rates or conditions.(6)
A Party may require suppliers of the other Party to fully utilise commercial negotiations to reach agreement on the terms for accessing such rates or conditions.
6. A Party that ensures access to regulated rates or conditions for wholesale international mobile roaming services in accordance with paragraph 5 shall be deemed to be in compliance with its obligations under Article 9.4 (Most-Favoured Nation Treatment) of Chapter 9 (Trade in Services), Article 11.4, and Article 11.7 with respect to international mobile roaming services.
7. For greater certainty, nothing in this Article shall require a Party to regulate rates or conditions for international mobile roaming services.
Article 11.7. Treatment by Major Suppliers of Public Telecommunications Networks or Services
Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications networks or services of the other Party treatment no less favourable than that major supplier accords in like circumstances to its subsidiaries, its affiliates or non-affiliated service suppliers regarding: (7)
(a) the availability, provisioning, rates or quality of like public telecommunications networks or services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 11.8. Competitive Safeguards
1. Each Party shall maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks or services who, alone or together, are a major supplier in its territory, from engaging in or continuing anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 include, but are not limited to:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available, on a timely basis, to other suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.