(a) Necessary to protect public morale, order or safety;
(b) Necessary to protect human, animal or plant health or life, including environmental measures;
(c) Necessary to protect intellectual property; or
(d) Relating to goods or services provided by disabled persons, philanthropic institutions or prison labour.
Article 8.21. Facilitating the Participation of Micro, Small and Medium Enterprises
1. The Parties recognise the important contribution that micro, small and medium enterprises (hereinafter "MSMEs") can make to economic growth and employment, and the importance of facilitating their participation in government procurement.
2. The Parties also recognise the importance of business alliances between the Parties' suppliers and in particular MSMEs, including joint participation in procurement procedures.
3. Where a Party maintains measures that give preferential treatment to its MSMEs as opposed to those of other Parties, that Party shall endeavour to reduce these measures.
4. Where a Party maintains measures providing preferential treatment to its MSMEs, it shall ensure that such measures, including eligibility criteria, be objective and transparent.
5. The Parties may:
(a) Provide information on the measures used to assist, promote, encourage or facilitate participation of MSMEs in government procurement; and
(b) Cooperate in the development of mechanisms to provide information to MSMEs on ways to participate in government procurement covered by this Chapter.
6. To facilitate the participation of MSMEs in government procurement covered [by this Chapter], each Party shall, insofar as practicable:
(a) Provide information related to government procurement, including a definition of MSMEs in an electronic portal;
(b) Ensure that the procurement documents are available free of charge;
(c) Identify MSMEs interested in becoming commercial partners of other companies in the territory of the other Parties;
(d) Develop databases on MSMEs in its territory to be used by entities of the other Parties; and
(e) Perform other activities to facilitate the participation of MSMEs in procurement covered by this Chapter.
Article 8.22. Cooperation
1. The Parties shall use their best efforts to develop cooperative activities to achieve a better understanding of their respective government procurement systems, as well as better access to their respective markets, in areas such as:
(a) Exchanging experiences and information, including regulatory frameworks, best practices and statistics;
(b) Facilitating the participation of the Parties' suppliers in government procurement covered by this Chapter, particularly MSMEs;
(c) Development and use of electronic media in the government procurement systems;
(d) Training and technical assistance for providers on market access in government procurement; and
(e) Institutional strengthening for compliance with this Chapter, including the training of public servants.
2. The Parties shall notify the Committee on Government Procurement established in Article 8.23 of the performance of any cooperative activity.
Article 8.23. Government Procurement Committee
1. The Parties hereby establish a Committee on Government Procurement (hereinafter referred to as the "Committee"), comprising representatives of each Party.
2. The functions of the Committee shall include:
(a) Monitoring and evaluating the implementation and administration of this Chapter, including its use, and recommending relevant activities to the Free Trade Commission;
(b) Reporting to the Free Trade Commission on the implementation and administration of this Chapter, where applicable;
(c) Monitoring cooperation activities;
(d) Considering the pursuit of further negotiations with the aim of expanding the coverage of this Chapter; and
(e) Handling any other matter relating to this Chapter.
3. Unless the Parties agree otherwise, the Committee shall meet at least once a year on the date, at the place and according to the agenda previously agreed by the Parties.
Article 8.24. Future Negotiations
At the request of any Party, the other Parties shall consider holding future negotiations in order to expand the coverage of this Chapter on a reciprocal basis, when any Party grants greater access to its government procurement market to suppliers from a non-Party state than to the other Partiesâ suppliers pursuant to this Additional Protocol, by means of an international treaty to enter into force after this Additional Protocol.
Chapter 9. CROSS-BORDER TRADE IN SERVICES
Article 9.1. Definitions
For the purposes of this Chapter:
Computer reservation system (CRS) services means the services provided through computer systems that contain information regarding timetables of air carriers, available seats, prices and pricing rules and booking and ticket-issuing services;
Cross-border trade in services or cross-border supply of services means the supply of a service:
(a) From the territory of one Party into the territory of another Party;
(b) In the territory of one Party by a person of that Party to a person of another Party, or
(c) By a national of a Party in the territory of another Party;
But it does not include the supply of a service in the territory of a Party through covered investment, as defined in Article 10.1 (Definitions);
Professional services means services, the provision of which requires specialised higher education (1) or equivalent training or experience, and for which the right to practise is granted or restricted by a Party, but does not include services provided by tradespersons or vessel and aircraft crew members;
Sale and trading of air transport services means the opportunities the air transport supplier in question has to freely sell and market its air transport services, including all aspects of marketing, for example, market research, advertising and distribution. These activities do not include price-setting for air transport services nor applicable conditions;
Service supplier of a Party means a person of a Party that seeks to supply or who supplies a service;
Specialty air services means any non-transportation air services, such as aerial fire-fighting, spraying, sightseeing, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
Article 9.2. Scope of Application
1. This Chapter applies to the measures adopted or maintained by a Party affecting the cross-border trade in services by service suppliers of another Party. Such measures include those that affect:
(a) The production, distribution, marketing, sale and delivery of a service;
(b) The purchase or use of, or payment for, a service;
(c) The access and use of distribution, transport, or telecommunication networks and services in connection with the supply of a service;
(d) The presence in its territory of a service supplier from another Party; and
(e) The provision of a bond or other type of financial security, as a condition for the supply of a service.
2. For the purposes of this Chapter, measures adopted or maintained by a Party means the measures adopted or maintained by:
(a) Central, regional or local governments and authorities, and
(b) Non-governmental bodies in the exercise of powers delegated by central, regional or local governments and authorities.
3. This Chapter does not apply to:
(a) Financial services, as defined in Article 11.1 (Definitions);
(b) Air services, (2) including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) Aircraft repair and maintenance services while an aircraft is withdrawn from service;
(ii) Specialty air services;
(iii) The sale and marketing of air transport services, and
(iv) Computer reservation system (CRS) services;
(c) Government procurement, as defined in Article 2.1 (General Definitions);
(d) Subsidies or grants provided by a Party or a state-owned enterprise including government-backed loans, guarantees and insurance, and
(e) The services supplied in the exercise of governmental authority in the territory of each of the Parties. A service supplied in the exercise of governmental authority means any service that is supplied neither on a commercial basis, nor in competition with one or more service suppliers.
4. Articles 9.6, 9.8 and 9.9 apply to the measures adopted or maintained by a Party that affect the supply of a service in their territory through a covered investment. (3)
5. This Chapter does not impose any obligation on a Party with respect to a national of another Party seeking access to its labour market or employed on a permanent basis in its territory, and does not confer any right upon that national with respect to that access or employment.
6. For greater certainty, nothing in this Chapter may be construed as imposing any obligation on a Party with respect to its immigration policies.
Article 9.3. National Treatment
1. Each Party shall accord to service suppliers of another Party treatment no less favourable than that it accords, under similar circumstances, to its own service suppliers.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a regional or state government, treatment no less favourable than the most favourable treatment accorded, under similar circumstances, by that regional or state government to the services and service suppliers of the Party of which it forms an integral part.
Article 9.4. Most-Favoured-Nation Treatment
Each Party shall accord to services and service suppliers of another Party treatment no less favourable than it accords, under similar circumstances, to services and service suppliers of any Party or non-Party state.
Article 9.5. Local Presence
No Party may require a service supplier of another Party to establish or maintain a representative office or any other form of company, or be a resident in the Party's territory as a condition for the cross-border supply of a service.
Article 9.6. Market Access
No Party may adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
(a) Impose limitations on:
(i) The number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(ii) The total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) The total number of service operations or the total quantity of services output, expressed in designated numerical units, in the form of quotas or the requirement of an economic needs test (4), or
(iv) The total number of natural persons that may be employed in a certain 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, or
(b) Restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 9.7. Non-Conforming Measures
1. Articles 9.3, 9.4, 9.5 and 9.6 do not apply to:
(a) Any existing non-conforming measure that is maintained by:
(i) Central or federal government or authorities of one Party, as set out in its Schedule to Annex I;
(ii) Regional or state government or authorities of one Party, as set out in its Schedule to Annex I;
(iii) A local level government of one Party;
(b) The continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) The modification of any non-conforming measure referred to in subparagraph (a), provided that said modification does not decrease the conformity of the measure as it existed immediately before the modification, with Articles 9.3, 9.4, 9.5 and 9.6.
2. Articles 9.3, 9.4, 9.5 and 9.6 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 IL.
Article 9.8. Transparency
1. Each Party shall establish or maintain appropriate mechanisms for responding to enquiries from interested persons regarding its regulations relating to the subject matter of this Chapter, pursuant to each Party's laws and regulations concerning transparency. (5)
2. When adopting final regulations relating to the subject matter of this Chapter, each Party shall, to the extent possible, including upon request, address in writing the substantive comments received from interested persons with respect to the proposed regulations.
3. To the extent possible, each Party shall allow a reasonable time between the publication of final regulations and their effective date.
4. In the event that a Party makes any modification to any existing non-conforming measure, as stipulated in its Schedule to Annex | pursuant to Article 9.7.1 (c), the Party shall notify the Parties of said modification as soon as practicable.
5. In the event that after the implementation of this Additional Protocol, a Party adopts any measure with respect to sectors, subsectors or activities as stipulated in its Schedule to Annex Il, the Party shall, to the extent possible, notify the Parties of said measure.
Article 9.9. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services be administered in a reasonable, objective and impartial manner.
2. Where a Party requires authorisation for the supply of a service, the Party's competent authorities:
(a) In the event of an incomplete application, shall identify, where feasible and at the request of the applicant, the additional information required to complete the application and the competent authorities shall provide the opportunity to rectify minor errors and omissions within the application.
(b) Shall inform the applicant of the decision concerning the application within a reasonable time after the submission of an application considered complete under its laws and regulations;
(c) Shall establish, where feasible, approximate timeframes for the processing of the application;
(d) Shall provide information concerning the status of the application at the request of the applicant, and without undue delay;
(e) If an application is denied, shall inform the applicant where feasible, of the reasons for the denial, whether directly or at the request of the applicant, and
(f) Shall accept certified true copies in lieu of original documents where feasible and pursuant to their laws.
3. With a view to ensuring that the measures related to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to the trade in services, each Party shall endeavour to ensure that such measures:
(a) Are based on objective and transparent criteria, such as competence and ability to provide the service;
(b) Are not more burdensome than is necessary to ensure the quality of the service, and
(c) In the case of licensing procedures, do not in themselves constitute a restriction on the supply of the service.
4. Each Party shall ensure that whatever fee charged by the competent authority to authorise the supply of a service is reasonable, transparent, and does not in itself restrict the supply of said service.
5. If the licensing requirements or qualifications include an assessment, each Party must ensure that:
(a) The assessment is scheduled in a reasonable timeframe, and
(b) A reasonable timeframe is allowed so that interested persons may submit an application to participate in the assessment.
6. Each Party shall ensure that there are procedures to verify the professional competences of another Party.
7. Each Party, where feasible, shall ensure that the information concerning the requirements and procedures for issuing licences and qualifications includes the following:
(a) Whether it is necessary to renew the licence or the qualifications for the supply of a service;
(b) The contact details of the competent authority;
(c) The requirements, procedures and costs applying to the issuing of licences and qualifications, and
(d) The procedures concerning appeals or reviews of applications, where applicable.
8. The Parties recognise their mutual obligations to domestic regulation under Article VI: 4 of the GATS and reaffirm their commitment to the development of any discipline necessary for compliance with that Article. Insofar as any of the said disciplines may be adopted by the members of the WTO or developed in another multilateral forum in which the Parties are engaged, the Parties shall jointly review them, where appropriate, with a view to determining whether said results should be incorporated into this Additional Protocol.
9. This Article shall not apply to the non-conforming aspects of the measures that may be adopted or maintained by a Party pursuant to Annexes I and II.
Article 9.10. Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation or certification or licensing of service suppliers, and subject to paragraph 4, a Party may recognise the education or experience obtained, the requirements met or the licences or certifications granted in a certain country. This recognition may be achieved through harmonisation or otherwise, it may be based upon an agreement or arrangement with the country concerned or it may be accorded autonomously.
2. When a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met or licences or certifications granted in the territory of a non-Party state, nothing in Article 9.4 shall be construed as a requirement for the Party to accord such recognition to the education or experience obtained, requirements met or the licences or certification granted in the territory of any other Party.
3. A Party that is party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall provide adequate opportunity for another Party, if that other Party is interested, to negotiate its accession to such an agreement or arrangement, or to negotiate a comparable one with it. When a Party autonomously grants recognition, it shall provide adequate opportunity for another Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognised.
4. No Party may grant recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorisation, certification or licensing of service suppliers, or a disguised restriction on trade in services.
5. Annex 9.10 applies to measures adopted or maintained by a Party in relation to the licensing or certification of professional service suppliers, as set out in that Annex.
Article 9.11. Subsidies
Notwithstanding that established in Article 9.2:
(a) The Parties shall periodically exchange information on existing or future subsidies, including grants, tax exemptions or deductions and government-backed loans, guarantees and insurance, related to the trade in services. The first exchange shall take place within no more than two years from the effective date of this Additional Protocol.
(b) The Parties recognise their mutual obligations under Article XV of the GATS and reaffirm their commitment to the exercise of any discipline required for compliance with said article. Insofar as any of the said disciplines are adopted by members of the WTO or exercised in another multilateral forum in which the Parties are engaged, the Parties shall jointly review them, where appropriate, with a view to determining whether said results should be incorporated into this Additional Protocol.
Article 9.12. Complementary Services
The Parties shall make every effort to publish, update and exchange information on their service suppliers that they consider relevant, in particular services provided to companies, with the objective of promoting the development of value chains within the corporate sector.
Article 9.13. Transfers and Payments (6)
1. Each Party shall permit all transfers and payments for the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit all transfers and payments for the cross-border supply of services to be made in a freely usable currency at the market exchange rate prevailing on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment, through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) Bankruptcy, insolvency or protection of the rights of creditors;