Article XVII of the GATT 1994 and the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994 shall apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.19. General Exceptions
Article XX of the GATT 1994 shall apply and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.20. Security Exceptions
Article XXI of the GATT 1994 shall apply and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.21. Balance-of-Payments
1. Nothing in this Chapter shall be construed to prevent a Party in serious balance of payments and external financial difficulties, or imminent threat thereof, from adopting any measure for balance-of-payments purposes. A Party adopting such measure shall do so in accordance with the conditions established under the GATT 1994 and the Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement.
2. Trade restrictive measures adopted for balance-of-payments purposes shall be temporary and non-discriminatory, and may not go beyond what is necessary to deal with the circumstances described in paragraph 1.
3. Nothing in this Chapter shall be construed to prevent a Party from using exchange controls or exchange restrictions in accordance with the Articles of Agreement of the International Monetary Fund (hereinafter referred to as the "IMF").
4. A Party adopting a measure according to paragraph 1 shall promptly notify the other Parties thereof. A notification by a Party in accordance with its international obligations as set out in paragraph 1 shall be deemed equivalent to a notification under this Agreement.
Article 2.22. Exchange of Data
1. The Parties recognise the value of trade data in the accurate analysis of the impact of the Agreement on trade between the Parties. The Parties shall periodically exchange data relating to trade in goods between them. Such information shall include, in particular, the most-favoured-nation tariff rates and import statistics, including, if available from all Parties, separate statistics for preferential imports. The Sub- Committee on Trade in Goods shall determine the rules of procedure, as appropriate, for any exchange of data according to this paragraph.
2. A Party shall give consideration to a request for technical cooperation with regard to exchange of data under paragraph 1 from another Party.
Article 2.23. Sub-Committee on Trade In Goods
1, A Sub-Committee on Trade in Goods (hereinafter referred to as "Sub- Committee") is hereby established.
2. The mandate of the Sub-Committee is set out in Annex VII (Mandate of the Sub-Committee on Trade in Goods).
Chapter 3. TRADE IN SERVICES
Article 3.1. Scope and Coverage
1. This Chapter applies to measures by the Parties affecting trade in services and taken by central, regional or local governments and authorities as well as by non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.
2. With respect to air transport services, whether scheduled or non-scheduled, and ancillary services, this Chapter shall not apply to measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, except as provided for in paragraph 3 of the GATS Annex on Air Transport Services. For the purposes of this Chapter, the definitions of paragraph 6 of the GATS Annex on Air Transport Services are hereby incorporated and made part of this Agreement.
3. Nothing in this Chapter shall be construed to impose any obligation with respect to government procurement.
Article 3.2. Definitions
For the purposes of this Chapter:
(a) a juridical person is:
"owned" by persons of a Party if more than 50% of the equity interest in it is beneficially owned by persons of that Party;
(i) "controlled" by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(ii) "affiliated" with another person when it controls, or is controlled by, that person; or when it and that person are both controlled by the same person;
(b) "a service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers;
(c) "commercial presence" means any type of business or professional establishment, including through:
(i) constitution, acquisition or maintenance of a juridical person; or
(ii) creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(d) "direct taxes" comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;
(e) "juridical person" means any legal entity duly constituted or otherwise organised under applicable laws and regulations, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(f) "Juridical person of another Party" means a juridical person which is either:
(i) constituted or otherwise organised under the applicable laws and regulations of that Party, and is engaged in substantive business operations in the territory of a Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(aa) natural persons of that Party; or
(bb) juridical persons of that Party identified under subparagraph (i);
(g) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(h) "measures by the Parties affecting trade in services" include measures with respect to:
(i) purchase, payment or use of a service;
(ii) access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally;
(iii) presence, including commercial presence, of persons of a Party for the supply of a service in the territory of another Party;
(i) "monopoly supplier of a service" means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(j) "natural person of another Party" means a natural person who, under applicable laws and regulations of that Party, is a national of that Party who resides in the territory of any WTO Member;
(k) "person" means either a natural person or a juridical person;
(l) "sector of a service" means:
(i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party's Schedule;
(ii) otherwise, the whole of that service sector, including all of its subsectors;
(m) "services" means any service in any sector, except services supplied in the exercise of governmental authority;
(n) "service consumer" means any person that receives or uses a service;
(o) "service of a Party" means a service which is supplied:
(i) from or in the territory of a Party, or in the case of maritime transport, by a vessel registered under the domestic laws and regulations of a Party, or by a person of a Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of a Party;
(p) "service supplier" means any person that supplies a service; (4)
(q) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service; and
(r) "trade in services" means the supply of a service:
(i) from the territory of a Party into the territory of another Party;
(ii) in the territory of a Party to the service consumer of another Party;
(iii) by a service supplier of a Party, through commercial presence in the territory of another Party; and
(iv) by a service supplier of a Party, through presence of natural persons of that Party in the territory of another Party.
Article 3.3. Most-Favoured-Nation Treatment
1. Without prejudice to measures taken in accordance with Article VII of the GATS, and except as provided for in its List of MFN-Exemptions contained in Annex VII. (Lists of MFN-Exemptions), each Party shall accord immediately and unconditionally, with respect to all measures affecting the supply of services, to services and service suppliers of another Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-party.
2. Treatment granted under other existing or future agreements concluded by a Party and notified under Article V or Article Vbis of the GATS shall not be subject to paragraph 1.
3. If a Party concludes an agreement of the type referred to in paragraph 2, it shall notify the other Parties without delay. The Party concluding such an agreement shall, upon request by another Party, afford adequate opportunity to negotiate the incorporation into this Agreement of a treatment no less favourable than that provided under that agreement.
4. For the purposes of this Chapter, with regard to the rights and obligations of the Parties in respect of advantages accorded to adjacent countries, paragraph 3 of Article I of the GATS shall apply and is hereby incorporated into and made part of this Agreement.
Article 3.4. Market Access
1. With respect to market access through the modes of supply identified in subparagraph (r) of Article 3.2 (Definitions), each Party shall accord services and service suppliers of another Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments. (5)
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(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 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; (6)
(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;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 3.5. National Treatment
1. In the sectors inscribed in its Schedule of Specific Commitments, and subject to the conditions and qualifications set out therein, each Party shall accord to services and service suppliers of another Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers. (7)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of another Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party compared to like services or service suppliers of another Party.
Article 3.6. Additional Commitments
Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Article 3.4 (Market Access) or 3.5 (National Treatment), including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule.
Article 3.7. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. Where a Party requires authorisation for the supply of a service, on which a specific commitment has been made, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application is considered complete under that Party's domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of that Party shall provide, without undue delay, information concerning the status of the application.
4. In sectors where specific commitments are undertaken, each Party shall ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures, are based on objective and transparent criteria, such as competence and the ability to supply the service.
5. Upon conclusion of the multilateral negotiations on the disciplines on Domestic Regulation pursuant to Article VI:4 of the GATS, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Chapter based on the result of such multilateral negotiations.
6. (a) In sectors in which a Party has undertaken specific commitments, pending the entry into force of a decision incorporating WTO disciplines for these sectors pursuant to paragraph 5, that Party shall not apply qualification requirements and procedures, technical standards and licensing requirements and procedures that nullify or impair such specific commitments in a manner which is:
(i) more burdensome than necessary to ensure the quality of the service; or
(ii) in the case of licensing procedures, in itself a restriction on the supply of the service;
(b) In determining whether a Party is in conformity with the obligation under subparagraph (a), account shall be taken of international standards of relevant international organisations (8) applied by that Party.
7. Each Party shall provide for adequate procedures to verify the competence of professionals of another Party.
Article 3.8. Recognition
1. For the purposes of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to requests by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that Party. Such recognition may be based upon an agreement or arrangement with the requesting Party, or be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party, that Party shall afford another Party adequate opportunity to negotiate a comparable agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted, in the territory of that Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VI of the GATS.
Article 3.9. Movement of Natural Persons
1. This Article applies to measures affecting natural persons who are service suppliers of a Party, and natural persons of a Party who are employed by a service supplier of a Party, in respect of the supply of a service.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, residence or employment on a permanent basis.
3. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment. (9)
Article 3.10. Transparency
1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Chapter. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.
2. Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.
3. Nothing in this Chapter shall require any Party to disclose confidential information, which would impede law enforcement, or otherwise be contrary to the public interest or that would prejudice legitimate commercial interests of particular enterprises, public or private.
4. Each Party shall treat as confidential the information submitted by another Party, which has been designated as confidential by the Party submitting the information.
Article 3.11. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under Article 3.3 (Most-Favoured-Nation Treatment) and specific commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments, that Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 3.12. Business Practices
1. The Parties recognise that certain business practices of service suppliers, other than those falling under Article 3.11 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. Each Party shall, at the request of another Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its domestic laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 3.13. Payments and Transfers
1. Subject to its specific commitments and except under the circumstances referred to in Article 3.14 (Restrictions to Safeguard the Balance of Payments), no Party shall apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of Agreement of the IMF, including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistent with its specific commitments regarding such transactions, except under Article 3.14 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 3.14. Restrictions to Safeguard the Balance of Payments
For the purposes of this Chapter, paragraphs 1 to 3 of Article XII of the GATS, shall apply and are hereby incorporated into and made part of this Agreement.
Article 3.15. Consultation on Implementation
If, after the entry into force of this Agreement, difficulties arise in a services sector of a Party where that Party has undertaken a specific commitment, that Party may request consultations with the other Parties, regardless whether such difficulties arise from liberalisation or not, for the purposes of exchanging information, data or experience, or exchanging views on possible ways and means to address such difficulties, taking into account the circumstances of the case at hand.
Article 3.16. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in services, nothing in this Chapter shall prevent a Party from the adoption or enforcement of measures:
(a) necessary to protect public morals or to maintain public order (10);
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with domestic laws and regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or dealing with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) inconsistent with Article 3.5 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective (11) imposition or collection of direct taxes with respect to services or service suppliers of the other Parties;
(e) inconsistent with Article 3.3 (Most-Favoured-Nation Treatment), provided that the difference in treatment is the result of an agreement on the avoidance of double taxation or provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
Article 3.17. Security Exceptions
Nothing in this Chapter shall be construed to:
(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purposes of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations; or
(c) prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.