Article 8.26. Scope
1. This Sub-Section sets out principles of the regulatory framework for the provision of public telecommunications networks and services, liberalised pursuant to Section B (Liberalisation of Investment), Section C (Cross-Border Supply of Services) and Section D (Temporary Presence of Natural Persons for Business Purposes).
2. This Sub-Section does not apply to any measure adopted or maintained by a Party relating to broadcasting (34) or cable distribution of radio or television programming.
Article 8.27. Definitions
For the purposes of this Sub-Section:
(a) "end user" means a final service consumer or a final service supplier to whom a public telecommunications network or service is supplied, other than for use in the further supply of a public telecommunications network or service;
(b) "essential facilities" means facilities of a public telecommunications network and 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 provide a service;
(c) "interconnection" means linking with suppliers providing public telecommunications transport service in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
(d) "major supplier" means a supplier of public telecommunications services which has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for public telecommunications services as a result of control over essential facilities or use of its position in the market;
(e) "number portability" means the ability of end users of public telecommunications services who so request to retain, at the same location, the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
(f) "public telecommunications network" means a telecommunications network which a Party requires to provide public telecommunications services between defined network termination points;
(g) "public telecommunications service" means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally;
(h) "regulatory authority" in the telecommunications sector means the body or bodies charged by a Party with the regulation of telecommunications;
(i) "telecommunications network" means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical, or other electromagnetic means;
(j) "telecommunications services" means all services consisting of the transmission and reception of electro-magnetic signals but excludes broadcasting services and economic activities consisting of the provision of content which requires telecommunications for its transport; and
(k) "user" means a service consumer or a service supplier.
Article 8.28. Regulatory Authority
1. The regulatory authority shall be separate from, and not accountable to, any supplier of public telecommunications networks or services.
2. The decisions of and the procedures used by regulatory authorities shall be impartial with respect to all market participants. To that end, a Party that retains ownership or control of providers of telecommunications networks or services shall ensure that regulatory actions, decisions or measures taken by the regulatory authority with respect to such providers do not discriminate against and, as a result, materially disadvantage any of their competitors.
3. The regulatory authority shall be sufficiently empowered to regulate the sector, and have adequate financial and human resources to carry out the tasks assigned to it.
4. The tasks to be undertaken by a regulatory authority shall be made public in an easily accessible and clear form, in particular when those tasks are assigned to more than one body.
5. The powers of the regulatory authority shall be exercised transparently and in a timely manner.
6. Regulatory authorities shall have the power to ensure that suppliers of telecommunications networks and services provide them, promptly upon request, with all the information, including financial information, which is necessary to enable the regulatory authorities to carry out their tasks in accordance with this Sub-Section. The information requested shall be no more than is necessary to allow the performance of the regulatory authoritiesâ tasks and treated in accordance with the requirements of confidentiality.
Article 8.29. Authorisation to Provide Telecommunications Networks and Services
1. Each Party shall ensure that licensing procedures should be publicly available, including:
(a) all the licensing criteria, terms, conditions and procedures it applies; and
(b) the reasonable period of time normally required to reach a decision concerning an application for a licence.
2. Each Party shall ensure that an applicant receives in writing, upon request, the reasons for the denial of a licence.
3. The applicant for a licence shall be able to seek recourse before an appeal body in case a licence has been denied.
4. Any licensing fees (35) which the applicants may incur from their application to get a licence shall be reasonable and shall not in themselves restrict the supply of the service.
Article 8.30. Scarce Resources
1. Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, timely, transparent and non-discriminatory manner.
2. The current state of allocated frequency bands shall be made publicly available but detailed identification of radio spectrum allocated for specific government uses shall not be required.
3. Decisions on allocating and assigning spectrum and frequency management are not measures that are per se inconsistent with Article 8.4 (Market Access), Article 8.8 (Performance Requirements) and 8.10 (Market Access). Accord- ingly, each Party retains the right to exercise its spectrum and frequency management policies, which may affect the number of suppliers of public telecommunications services, provided that this is done in a manner that is consistent with this Chapter. The Parties also retain the right to allocate frequency bands in a manner that takes into account existing and future needs.
Article 8.31. Access to and Use of Public Telecommunications Networks and Services
1. Each Party shall ensure that all service suppliers of the other Party have access to, and use of, any public telecommunications network and service of a major supplier (36), including private leased circuits, offered within or across the borders of that Party on reasonable, non-discriminatory and transparent terms and conditions, including as set out in paragraphs 2 and 3.
2. Each Party shall ensure that suppliers of public telecommunications services requesting to have access to the network of a major supplier are permitted to:
(a) purchase or lease, and attach, terminal or other equipment which interfaces with the public telecommunications network;
(b) interconnect private leased or owned circuits with public telecommunications networks and services in its territory, or across its borders, or with circuits leased or owned by other service suppliers; and
(c) use operating protocols of their choice, other than as necessary to ensure the availability of telecommunications networks and services to the public generally.
3. Each Party shall ensure that all service suppliers of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders, including for intra-corporate communications of such service suppliers and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party. Any new or amended measures of a Party significantly affecting such use shall be notified to the other Party and shall be subject to consultations.
4. Each Party shall ensure that suppliers that acquire information from another supplier in the process of negotiating access use that information solely for the purpose for which it was supplied and at all times respect the confidentiality of information transmitted or stored.
Article 8.32. Interconnection
1. Each Party shall ensure that any suppliers of public telecommunications services shall have the right, and when requested by another supplier, the obligation, to negotiate interconnection with each other for the purposes of providing public telecommunications networks and services.
2. Each Party shall ensure that suppliers that acquire information from another supplier in the process of negotiating interconnection arrangements use that information solely for the purpose for which it was supplied and at all times respect the confidentiality of information transmitted or stored.
3. For public telecommunications services, each Party shall ensure interconnection with a major (37) supplier at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including in relation to technical standards and specifications) and rates, and of a quality no less favourable than that provided for such major supplier's own like services, or for like services of non-affiliated suppliers, or for its subsidiaries or other affiliates;
(b) in a timely fashion, on terms, conditions (including in relation to technical standards and specifications) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
4. The procedures applicable for interconnection to a major supplier shall be made publicly available.
5. Major suppliers shall make publicly available either their interconnection agreements or their reference interconnection offers where appropriate.
Article 8.33. Competitive Safeguards on Major Suppliers
The Parties shall introduce or maintain appropriate measures for the purposes of preventing suppliers who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. These anti-competitive practices in their territories include, in particular:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other services suppliers on a timely basis technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
Article 8.34. Universal Service
1. Each Party shall have the right to define the kind of universal service obligation it wishes to maintain. Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
2. The designation of universal service suppliers shall be made through an efficient, transparent and non-discriminatory mechanism.
Article 8.35. Number Portability
Each Party shall ensure that suppliers of public telecommunications networks or services in its territory provide number portability for mobile services and any other services designated by that Party, to the extent technically and economically feasible, on a timely basis and on reasonable terms and conditions.
Article 8.36. Confidentiality of Information
Each Party shall ensure the confidentiality of telecommunications and related traffic data by means of a public telecommunications network and publicly available telecommunications services without restricting trade in services.
Article 8.37. Resolution of Telecommunications Disputes
1. In the event of a dispute arising between suppliers of telecommunications networks or services in connection with rights and obligations that arise from this Sub-Section, the regulatory authority concerned shall, at the request of either party concerned, issue a binding decision to resolve the dispute in the shortest possible timeframe and in any case within a reasonable period of time, except in exceptional circumstances.
2. Where a dispute referred to in paragraph 1 concerns the cross-border provision of services, the regulatory authorities concerned shall coordinate their efforts in order to induce a resolution of the dispute.
3. The decision of the regulatory authority shall be made available to the public, having regard to the requirements of business confidentiality. The parties concerned shall be given a full statement of the reasons on which it is based and shall have the right to appeal that decision in accordance with paragraph 5.
4. The procedure referred to in paragraphs 1, 2 and 3 shall not preclude either party concerned from bringing an action before the courts.
5. Any user or supplier affected by the decision of a regulatory authority shall have a right to appeal against that decision to an appeal body that is independent of the party involved. This body, which may be a court, shall have the appropriate expertise to carry out its functions effectively. The merits of the case shall be duly taken into account and the appeal mechanism shall be effective. Where the appeal body is not judicial in character, written reasons for its decision shall always be given and its decisions shall also be subject to review by an impartial and independent judicial authority. Decisions taken by appeal bodies shall be effectively enforced. Pending the outcome of the appeal, the decision of the regulatory authority shall stand, unless interim measures are granted in accordance with the domestic laws and regulations.
Article 8.38. Co-location
1. Each Party shall ensure that major suppliers in its territory:
(a) provide to suppliers of public telecommunications networks or services of the other Party that are facilities-based suppliers in the territory of that Party, physical co-location of equipment necessary for interconnection; and
(b) in situations where physical co-location referred to in subparagraph (a) is not practical for technical reasons or because of space limitations, cooperate with suppliers of public telecommunications networks or services of the other Party that are facilities-based suppliers in the territory of that Party to find and implement a practical and commer- cially viable alternative solution.
2. Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications networks or services the physical co-location or practical and commercially viable alternative solution referred to in paragraph 1 in a timely manner and on terms and conditions, including technical standards and specifications, and at rates that are reasonable, having regard to economic feasibility, non-discriminatory and transparent.
3. Each Party may determine, in accordance with its domestic laws and regulations, the locations at which it requires major suppliers in its territory to provide the physical co-location or the practical and commercially viable alternative solution referred to in paragraph 1.
Article 8.39. Leased Circuits Services
Each Party shall, unless it is not technically feasible, ensure that major suppliers in its territory make leased circuits services that are public telecommunications services, available to suppliers of public telecommunications networks or services of the other Party in a timely manner and on terms and conditions, including technical standards and specifications, and at rates that are reasonable, having regard to economic feasibility, non-discriminatory and transparent.
Article 8.40. Unbundled Network Elements
Each Party shall ensure that their telecommunications regulatory authority has the power to require major suppliers to meet reasonable requests by suppliers of public telecommunications networks or services for access to, and use of, specific network elements, on an unbundled basis, in a timely manner and on terms and conditions that are reasonable, transparent, and non-discriminatory. Each Party shall determine such specific network elements requested to be made available in its territory in accordance with its domestic laws and regulations.
Subsection 6. Financial Services
Article 8.41. Scope and Definitions
1. This Sub-Section sets out the principles of the regulatory framework for all financial services liberalised pursuant to Section B (Liberalisation of Investment), Section C (Cross-Border Supply of Services) and Section D (Temporary Presence of Natural Persons for Business Purposes).
2. For the purposes of this Sub-Section:
(a) "financial service" means any service of a financial nature offered by a financial service supplier of a Party; financial services comprise the following activities:
(i) insurance and insurance-related services:
(A) direct insurance (including co-insurance):
(1) life; and
(2) non-life;
(B) reinsurance and retrocession;
(C) insurance inter-mediation, such as brokerage and agency; and
(D) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
(i) banking and other financial services (excluding insurance):
(A) acceptance of deposits and other repayable funds from the public;
(B) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(C) financial leasing;
(D) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(E) guarantees and commitments;
(F) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, of the following:
(1) money market instruments (including cheques, bills, certificates of deposits);
(2) foreign exchange;
(3) derivative products including, but not limited to, futures and options;
(4) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(5) transferable securities; and
(6) other negotiable instruments and financial assets, including bullion;
(G) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services relating to such issues;
(H) money broking;
(I) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(J) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(K) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(L) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (A) to (K), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party that seeks to provide or provides financial services but does not include a public entity;
(c) "new financial service" means a service of a financial nature including services relating to existing and new products or the manner in which a product is delivered, which is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of the other Party;
(d) "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
(i) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions;
and
(e) "self-regulatory organisation" means any non-governmental body, any securities or futures exchange or market, clearing agency, other organisation or association, that exercises regulatory or supervisory authority over financial service suppliers by statute or delegation from central, regional or local governments or authorities, where applicable.
Article 8.42. Prudential Carve-Out
1. Nothing in this Agreement shall be construed as preventing a Party from adopting or maintaining measures for prudential reasons, such as:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(b) ensuring the integrity and stability of a Party's financial system.
2. The measures referred to in paragraph 1 shall not be more burdensome than necessary to achieve their aim.
3. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual consumers or any confidential or proprietary information in the possession of public entities.
4. Each Party shall endeavour to ensure that internationally agreed standards for regulation and supervision in financial services and for the fight against tax evasion and avoidance are implemented and applied in its territory. Such internationally agreed standards are, inter alia, the Core Principle for Effective Banking Supervision of the Basel Committee, the Insurance Core Principles of the International Association of Insurance Supervisors, the Objectives and Principles of Securities Regulation of the International Organization of Securities Commissions, the Agreement on Exchange of Information on Tax Matters of the Organisation for Economic Cooperation and Development, the Statement on Transparency and Exchange of Information for Tax Purposes of the G20 and the Forty Recommendations on Money Laundering and the Nine Special recommendations on Terrorist Financing of the Financial Action Task Force.
5. The Parties take note of the Ten Key Principles for Information Exchange promulgated by the Finance Ministers of the G7 Nations.
6. Without prejudice to other means of prudential regulation of cross-border trade in financial services, a Party may require the registration or authorisation of cross-border financial service suppliers of the other Party and of financial instruments.
Article 8.43. Transparent Regulation
Each Party shall make available to interested persons its requirements for completing applications relating to the supply of financial services.
Upon the request of an applicant, the Party concerned shall inform the applicant of the status of its application. If the Party concerned requires additional information from the applicant, it shall notify the applicant without undue delay.
Article 8.44. New Financial Service
Each Party shall permit a financial service supplier of the other Party to provide any new financial service that the former Party would permit its own financial service suppliers to provide in accordance with its domestic laws and regulations, in like situations, provided that the introduction of the new financial service does not require a new law or modification of an existing law. A Party may determine the institutional and legal form through which the service may be provided and may require authorisation for the provision of the service. Where such authorisation is required, a decision shall be made within a reasonable time and the authorisation may only be refused for prudential reasons.
Article 8.45. Data Processing
1. Each Party shall adopt or maintain appropriate safeguards to protect personal data and privacy, including individual records and accounts.
2. No later than two years from the date of entry into force of this Agreement, each Party shall permit financial service suppliers (38) of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing where such processing is required in the ordinary course of business of such financial service suppliers.
3. Nothing in this Article restricts the right of a Party to protect personal data and privacy, so long as such right is not used to circumvent this Agreement.
Article 8.46. Specific Exceptions
1. Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing in its territory activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the Party's domestic laws and regulations, by financial service suppliers in competition with public entities or private institutions.
2. Nothing in this Agreement, except for Section B (Liberalisation of Investment) which is subject to paragraph 3, shall apply to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary policy or exchange rate policies.
3. Nothing in Section B (Liberalisation of Investment) shall apply to non-discriminatory measures of general application taken by any public entity in pursuit of monetary policy or exchange rate policy.
4. Nothing in this Chapter shall be construed as preventing a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account, or with the guarantee or using the financial resources of the Party, or its public entities, except when those activities may be carried out, as provided by the Party's domestic laws and regulations, by financial service suppliers in competition with public entities or private institutions.
5. For greater certainty, the Parties understand that paragraphs 1 and 4 shall not be construed as permitting the Parties to apply, without protecting the rights of affected investors or investments, measures referred to in those paragraphs when the activities or services mentioned therein have been liberalised or may be carried out, as provided by the Party's domestic laws and regulations, by financial services suppliers in competition with public entities or private institutions.
Article 8.47. Self-Regulatory Organisations
When a Party requires membership of, participation in or access to any self-regulatory organisation in order for financial service suppliers of the other Party to supply financial services in or into the territory of the first Party, the Party shall ensure observance of the obligations under Articles 8.5 (National Treatment), 8.6 (Most-Favoured-Nation Treatment) and 8.11 (National Treatment).