(vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) Financial leasing;
(viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(ix) Guarantees and commitments;
(x) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(F) transferable securities;
(G) other negotiable instruments and financial assets, including bullion.
(xi) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(xii) Money broking;
(xiii) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(xiv) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xv) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
(xvi) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (v) through (xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
(b) A financial service supplier means any natural or juridical person of a Party wishing to supply or supplying financial services but the term "financial service supplier" does not include a public entity.
(c) "Public entity" means:
(i) a government, a central bank or a monetary authority, of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
Chapter 10. DIGITAL TRADE
Article 10.1. Definitions
For the purposes of this Chapter:
APIs means Application Programming Interfaces;
authentication means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;
carrier medium means any physical object capable of storing the digital codes that form a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes an optical medium, a floppy disk, and a magnetic tape;
customs duty includes any duty or charge of any kind imposed on or in connection with the importation of a good, and any surtax or surcharge imposed in connection with such importation, but does not include any:
(a) charge equivalent to an internal tax imposed consistently with paragraph 2 of Article III of the GATT 1994;
(b) fee or other charge in connection with the importation commensurate with the cost of services rendered; or
(c) antidumping or countervailing duty;
digital product means a computer programme, text, video, image, sound recording or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically; (1)(2)
digital signature means data in digital or electronic form that is in, affixed to, or logically or cryptographically associated with, a digital or electronic document, and that may be used to identify or verify the signatory in relation to the digital or electronic document and indicate the signatory's approval of the information contained in the digital or electronic document, and legally binding the author to the digital or electronic document;
electronic transmission or transmitted electronically means a transmission made using any electromagnetic means, including by photonic means;
open data means non-proprietary information, including data, made freely available to the public by the central level of government;
personal data means any information, including data, about an identified or identifiable natural person;
trade administration documents means forms issued or controlled by a Party that must be completed by or for an importer or exporter in connection with the import or export of goods; and
unsolicited commercial electronic message means an electronic message which is sent for commercial or marketing purposes, without the consent of the recipient or despite the explicit rejection of the recipient, through an Internet access service supplier or, to the extent provided for under the laws and regulations of each Party, other telecommunications service.
Article 10.2. Objectives
1. The Parties recognise the economic growth and opportunity that digital trade provides, the importance of avoiding barriers to its use and development, the importance of promoting consumer confidence in digital trade, and the applicability of the WTO Agreement to measures affecting digital trade.
2. The Parties seek to foster an environment conducive to the further advancement of digital trade, including electronic commerce and the digital transformation of the global economy, by strengthening their bilateral relations on these matters.
Article 10.3. General Provisions
1. This Chapter shall apply to measures adopted or maintained by a Party that affect trade by electronic means.
2. This Chapter shall not apply:
(a) to government procurement; and
(b) except for Article 10.14, to information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.
3. For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are subject to the relevant provisions of Chapter 8 (Investment) and Chapter 9 (Trade in Services) and including any exceptions or limitations set out in this Agreement that are applicable to such provisions.
4. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from imposing internal taxes, directly or indirectly, on digital products, provided they are imposed in a manner consistent with this Agreement.
Article 10.4. Customs Duties
1. No Party shall impose customs duties, fees, or other charges on or in connection with the importation or exportation of digital products by electronic transmission, between a person of a Party and a person of the other Party.
2. For the purposes of determining applicable customs duties, each Party shall determine the customs value of an imported carrier medium bearing a digital product based on the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium.
Article 10.5. Non-Discriminatory Treatment of Digital Products
1. A Party shall not accord less favourable treatment to some digital products transmitted electronically than it accords to other like digital products transmitted electronically:
(a) on the basis that:
(i) the digital products receiving less favourable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party; or
(b) so as otherwise to afford protection to the other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in its territory.
2. A Party shall not accord less favourable treatment to digital products transmitted electronically:
(a) that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of the other Party than it accords to like digital products transmitted electronically that are created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, or distributor of such digital products is a person of the other Party than it accords to like digital products transmitted electronically whose author, performer, producer, developer, or distributor of such digital products transmitted electronically is a person of a non-Party.
3. Paragraphs 1 and 2 of this Article are subject to the relevant exceptions, limitations or reservations set out in this Agreement or its Annexes, if any.
4. This Article shall not apply to broadcasting.
Article 10.6. Domestic Electronic Transactions Framework
1. Each Party shall endeavour to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce (1996) or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on November 23, 2005.
2. Each Party shall endeavour to:
(a) avoid any unnecessary regulatory burden on electronic transactions; and
(b) facilitate input by interested persons in the development of its legal framework for electronic transactions, including in relation to trade documentation.
Article 10.7. Authentication and Digital Signature
1. Except in circumstances otherwise provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in digital form.
2. Neither Party shall adopt or maintain measures regarding authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with any legal requirements with respect to authentication.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the method of authentication or the digital signature meets certain performance standards or is certified by an authority accredited in accordance with its law.
4. The Parties shall encourage the use of interoperable digital signatures.
Article 10.8. Paperless Trading
Each Party shall endeavour to:
(a) make trade administration documents available to the public in electronic form; and
(b) accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 10.9. Online Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers from misleading, deceptive, and fraudulent commercial practices when they engage in digital trade.
2. Each Party shall adopt or maintain laws or regulations to proscribe misleading, deceptive, and fraudulent conducts that cause harm or potential harm to consumers engaged in online commercial activities.
3. The Parties recognise the importance of cooperation between their respective national consumer protection agencies on activities related to cross-border electronic commerce in order to enhance consumer welfare.
Article 10.10. Personal Data Protection
1. The Parties recognise the benefits of adopting or maintaining legislation for the protection of personal data of the users of digital trade and the contribution that this makes to enhancing consumer confidence in digital trade.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal data of the users of digital trade. In the development of any legal framework for the protection of personal data, each Party should endeavour to take into account principles and guidelines of relevant international organisations.
Article 10.11. Principles on Access to and Use of the Internet for Digital Trade
To support the development and growth of digital trade and subject to applicable policies, laws and regulations, each Party recognizes that consumers in its territory should be able to:
(a) access and use services and applications of their choice, available on the Internet, subject to reasonable network management; (3) and
(b) connect the devices of their choice to the Internet, provided that such devices do not harm the network.
Article 10.12. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require a supplier of unsolicited commercial electronic messages to facilitate the ability of a recipient to prevent ongoing reception of those messages;
(b) require the consent, as specified in the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.
2. Each Party shall provide recourse against a supplier of unsolicited commercial electronic messages that does not comply with a measure adopted or maintained in accordance with paragraph 1.
3. The Parties shall endeavour to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
Article 10.13. Cross-Border Flow of Information
1. The Parties recognize that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. Recognizing the importance of the free flow of information in facilitating trade, and acknowledging the importance of protecting personal data, the Parties shall endeavour to refrain from imposing or maintaining unnecessary barriers to electronic information flows across borders.
Article 10.14. Open Government Data
1. The Parties recognise that facilitating public access to and use of government information available to the public may foster economic and social benefits, competitiveness and innovation.
2. To the extent that a Party chooses to make government information, including data, available to the public, it shall endeavour to ensure, to the extent practicable, that the information is made available in a:
(a) machine readable and open format that allows it to be searched and tetrieved; and
(b) spatially enabled format with reliable, easy to use and freely available APIs and is regularly updated.
3. The Parties shall endeavour to cooperate to identify ways in which each Party can expand access to and use of open data, with a view to enhancing and generating business and research opportunities, especially for small and medium-sized enterprises.
Article 10.15. Cooperation
1. The Parties recognize the importance of cooperation mechanisms on issues arising from electronic commerce, inter alia to address the following:
(a) consumer protection in the field of electronic commerce;
(b) personal data protection;
(c) the treatment of unsolicited commercial electronic messages;
(d) challenges for small and medium-sized enterprises in digital trade;
(e) the security of electronic commerce;
(f) digital identities;
(g) digital government; and
(h) electronic invoicing.
2. Recognizing the global nature of electronic commerce, the Parties shall strive to actively participate in regional and multilateral forums to promote the development of electronic commerce and to exchange views, as necessary, within the framework of such forums on matters related to electronic commerce.
Chapter 11. GOVERNMENT PROCUREMENT
Article 11.1. Definitions
For the purposes of this Chapter:
construction service means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
goods or services means goods or services that a procuring entity needs to carry out its business;
in writing or written means any worded or numbered expression that can be read, reproduced and may be later communicated, and may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
list of suppliers means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
measure means any law, regulation, policy, procedure, administrative guidance or practice, or any action of a procuring entity relating to a procurement;
notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
open tendering means a procurement method whereby a procuring entity announces to all interested qualified suppliers to submit a tender, thereby providing equal opportunities for all suppliers interested in submitting their bids;
procurement means the purchase by a procuring entity of goods or services. The procurement process is a sequence of activities undertaken by a procuring entity to obtain the required goods or services;
procuring entity Means an entity listed by a Party in Annex 11A (Government Procurement Coverage);
publish means to disseminate information through paper or electronic means that is distributed widely and is readily accessible to the general public;
qualified supplier means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;
services any service that has been specified by the procurement entity;
supplier means a person or group of persons that provides or could provide a good or service to a procuring entity; and
technical specification means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, including quality, performance, safety, and dimensions, or the processes and methods for their production, or
(ii) services to be procured, or the processes or methods for their provision or
(b) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Article 11.2. General
The Parties recognize the importance of government procurement in trade relations and set as their objective the effective, reciprocal, and progressive opening of their government procurement markets. The Parties will endeavour to cooperate bilaterally on procurement matters.
Article 11.3. Scope Application of Chapter
1. This Chapter applies to any measure regarding covered procurement.
2. For the purposes of this Chapter, covered procurement means government procurement:
(a) of a good, service or any combination thereof;
(b) by any contractual means, including: purchase; rental or lease, with or without an option to buy;
(c) by a procuring entity; and
(d) for which the value, as estimated in accordance with paragraphs 7 and 8 equals or exceeds the relevant threshold specified by each Party in Annex 11A (Government Procurement Coverage) at the time of publication of a notice;