(b) The non-disputing Party may make oral and written submissions to the ISDS Tribunal regarding the issue of whether and to what extent Article 3 (Prudential Measures) or Article 7 (Financial Services Exceptions) is a valid defence to the claim. Unless it makes such a submission, the non-disputing Party shall be presumed, for the purposes of the arbitration, to take a position on Article 3 (Prudential Measures) or Article 7 (Financial Services Exceptions) that is not inconsistent with that of the disputing Party.
5. For the purposes of this Article, the definitions of the following terms set out in Article 19 (Scope and Definitions) of Chapter 11 (Investment) are incorporated, mutatis mutandis: "disputing investor", "disputing parties", "disputing Party" and "non-disputing Party".
13. New Financial Services
1. Each host Party shall endeavour to permit financial institutions of another Party established in the territory of the host Party to supply a new financial service in the territory of the host Party that the host Party would permit its own financial institutions, in like circumstances, to supply without adopting a law or modifying an existing law. (15)
2. Where an application is approved, the supply of the new financial service is subject to relevant licensing, institutional or juridical form, or other requirements of the host Party.
14. Electronic Payment Systems
1. Recognising the rapid growth of electronic payments, the Parties shall to the extent practicable support the development of efficient, safe and secure cross-border electronic payments by:
(a) fostering the adoption and use of internationally accepted standards for electronic payments;
(b) promoting interoperability and the inter-connection of electronic payment infrastructures; and
(c) encouraging innovation and competition in electronic payments services.
2. To this end and in accordance with their respective laws and regulations, each Party shall to the extent practicable endeavour:
(a) to make publicly available, in a timely manner, regulations on electronic payments, including in relation to regulatory approval, licensing requirements, procedures and technical standards;
(b) to finalise decisions on regulatory or licensing approvals in a timely manner;
(c) not to arbitrarily or unjustifiably discriminate between financial institutions and other payment service providers in relation to access to services and infrastructure necessary for the operation of electronic payment systems;
(d) to take into account, for relevant electronic payment systems, international standards for electronic payment messaging for electronic data exchange between financial institutions and service suppliers to enable greater interoperability between electronic payment systems;
(e) to facilitate the use of open platforms and architecture such as tools and protocols provided for through Application Programming Interfaces ("APIs") and encourage financial institutions and payment service providers to safely and securely make APIs for their products and services available to third parties, where possible, to facilitate greater interoperability, innovation and competition in electronic payments; and
(f) to facilitate innovation and competition, and recognise the importance of enabling the introduction of new financial and_ electronic payment products and services in a timely manner, such as through adopting regulatory and industry sandboxes.
3. In view of Paragraph 1, the Parties recognise the importance of upholding safety, efficiency, trust and security in electronic payment systems through regulations, and that to the extent practicable the adoption and enforcement of regulations and policies should be proportionate to the risks undertaken by the payment service providers.
15. Consultations
1. A Party may request consultations with another Party regarding any matter arising under this Agreement that affects financial services. The other Party shall consider such a request.
2. Consultations under this Article shall include the relevant representatives of the contact points specified in Article 16 (Contact Points).
16. Contact Points
1. The authorities for each Party responsible for financial services ("contact points") are:
(a) for Australia, the Department of the Treasury and the Department of Foreign Affairs and Trade and, as necessary, officials from the relevant regulatory authorities, including the Australian Prudential Regulation Authority, the Reserve Bank of Australia and the Australian Securities and Investment Commission;
(b) for Brunei Darussalam, the Ministry of Finance and Economy and the Brunei Darussalam Central Bank;
(c) for Cambodia, the Ministry of Economy and Finance, Securities and Exchange Regulator of Cambodia, the Insurance Regulator of Cambodia, the National Bank of Cambodia and the Ministry of Commerce;
(d) for Indonesia, the Ministry of Trade, the Ministry of Finance, the Indonesia Financial Services Authority (OJK) and Bank Indonesia;
(e) for Lao PDR, the Bank of the Lao PDR, the Ministry of Finance and the Lao Securities Commission Office;
(f) for Malaysia, the Bank Negara Malaysia and the Securities Commission Malaysia;
(g) for Myanmar, the Ministry of Planning and Finance, the Central Bank of Myanmar, the Securities and Exchange Commission of Myanmar and the Ministry of Commerce;
(h) for New Zealand, the Ministry of Foreign Affairs and Trade, in co-ordination with financial services regulators;
(i) for the Philippines, the Department of Finance, the Bangko Sentral ng Pilipinas, the Securities and Exchange Commission and the Insurance Commission;
(j) for Singapore, the Monetary Authority of Singapore;
(k) for Thailand, the Ministry of Finance, the Bank of Thailand, the Securities and Exchange Commission and the Office of Insurance Commission; and
(l) for Viet Nam, the Ministry of Industry and Trade, the State Bank of Viet Nam and the Ministry of Finance.
ANNEX 8C. PROFESSIONAL SERVICES
Objectives
1. The objectives of this Annex are to:
(a) encourage the development of systems for the recognition of professional qualifications, licensing or registration of professionals;
(b) encourage collaboration between accreditation, regulatory and professional bodies of two or more Parties to share knowledge and expertise in advancing the development of best practice in the accreditation and regulation of professions; and
(c) encourage professions to engage in advancing the liberalisation of international trade in professional services.
Principles for the Regulation of Professional Services
2. The Parties recognise that professional services play an essential role in facilitating trade and investment across both goods and services sectors and in promoting economic growth and business confidence.
3. Subject to each Party's services-related commitments in Annex 2 (Schedules of Specific Commitments for Services) or Annex 3 (Schedules of Reservations and Non-Conforming Measures for Investment and Services) and where there is mutual interest to do so, each Party shall encourage its relevant bodies to consider exploring the possibility of providing a framework that may include one or more of the following elements, subject to its laws and regulations:
(a) permits professionals of another Party visiting the host Party on a temporary basis for business purposes to provide professional services on the basis of their right to provide those services in their home territory;
(b) provides for, where relevant, the application of local ethical, conduct and disciplinary standards to professionals of another Party in a manner that is no more burdensome for professionals of another Party than the requirements imposed on professionals of the host Party in that professional services sub-sector;
(c) has sufficient flexibility, where professional indemnity insurance available to local professionals cannot be accessed by professionals of other Parties in the host Party, to provide a right for professionals of other Parties to either use their home-country professional indemnity insurance or disclose to clients their status as a professional of another Party and the extent of their professional indemnity insurance or that they lack such insurance;
(d) allows for all modes of providing professional services to be accommodated, including:
(i) on atemporary fly-in, fly-out basis;
(ii) on a cross-border basis through the use of telecommunications technology;
(iii) by establishing a commercial presence; and
(iv) through a combination of fly-in, fly-out and one or both of the other modes listed in Sub- subparagraphs (ii) and (iii);
(e) permits professionals of another Party or Parties and of the host Party to work together in the delivery of professional services; and
(f) permits professional services firms of another Party or other Parties, subject to the host Partyâs laws and regulations on the use of firm names, to use a firm name of their choice.
4. Each Party may consider, if feasible, implementing without the need for further written examination, procedures for the temporary, limited or project-specific licensing of professional service suppliers of another Party or other Parties. Such a regime should not operate to prevent a professional of another Party from gaining a local licence once that professional satisfies the applicable local licensing requirements.
Recognition of Professional Qualifications, Licensing and Registration
5. If access to or pursuit of a profession that is regulated by a relevant body of a host Party is contingent on possession of specific professional qualifications or experience, that host Party shall encourage its relevant bodies to administer relevant systems in a manner that is as transparent and streamlined as possible, and that is not disproportionately complex or burdensome on professional service suppliers of other Parties seeking access to or pursuit of that profession in its jurisdiction.
6. Each Party shall encourage its relevant bodies to negotiate with the relevant bodies of another Party or other Parties on any form of arrangements for the mutual recognition of professional qualifications, licensing or registration in professional services sectors of mutual interest.
7. Each Party shall consult with its relevant bodies to identify professional services where two or more Parties are mutually interested in establishing dialogue on issues that relate to the recognition of professional qualifications, licensing or registration.
8. Each Party shall encourage its relevant bodies to take into account existing international agreements that relate to professional services in the development of mutual recognition or similar arrangements on the recognition of professional qualifications, licensing or registration.
9. Nothing in this Annex shall prevent a Party from requiring that natural persons seeking to supply a professional service possess the necessary qualifications or professional experience specified in the jurisdiction of the Party where the service is supplied.
Professional Services Working Group
10. The Parties hereby establish a Professional Services Working Group (the "Working Group") composed of representatives of each Party to advance the objectives of this Annex.
11. The Working Group shall, as appropriate, support the Parties' relevant professional and regulatory bodies in pursuing the objectives of this Annex. This support may include providing points of contact, facilitating meetings and providing information regarding regulation of professional services in each Party's territory.
12. The Working Group may consider, particularly with a view to facilitating the adoption of mutual recognition agreements by relevant bodies with limited resources, the development of guidelines for mutual recognition agreements.
13. The Working Group shall endeavour to meet within 12 months of the date of entry into force of the Second Protocol, and thereafter as agreed by the Working Group. For a meeting to be held, at least two Parties must participate. It is not necessary for representatives of all Parties to participate in order to hold a meeting.
14. The Working Group shall report to the FTA Joint Committee on its progress and on the future direction of its work.
15. Decisions of the Working Group shall have effect only in relation to those Parties that participated in the meeting at which the decision was taken, except if:
(a) otherwise agreed by all Parties; or
(b) a Party that did not participate in the meeting requests to be covered by the decision and all Parties originally covered by the decision agree.
Chapter 9. MOVEMENT OF NATURAL PERSONS
1. Objectives
The objectives of this Chapter are to:
(a) provide for rights and obligations in relation to the movement of natural persons between the Parties for business purposes;
(b) facilitate the movement of natural persons engaged in the conduct of trade and investment between the Parties;
(c) establish streamlined and transparent procedures for applications for immigration formalities for the temporary entry of natural persons to whom this Chapter applies; and
(d) protect the integrity of the Parties' borders and protect the domestic labour force and permanent employment in the territories of the Parties.
2. Scope
1. This Chapter shall apply, as set out in each Party’s schedule of specific commitments in Annex 4 (Schedules of Specific Commitments on the Movement of Natural Persons), to measures affecting the temporary entry of natural persons of a Party into the territory of another Party. Such persons may include:
(a) business visitors;
(b) installers and servicers;
(c) executives of a business headquartered in a Party establishing a branch or subsidiary, or other commercial presence of that business in another Party;
(d) intra-corporate transferees; or
(e) contractual service suppliers.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of another Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
3. Nothing in this Agreement shall 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 those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.
4. The sole fact that a Party requires natural persons of another Party to obtain an immigration formality shall not be regarded as nullifying or impairing the benefits accruing to any Party under this Chapter.
3. Definitions
For the purposes of this Chapter:
(a) granting Party means a Party who receives an application for temporary entry from a natural person of another Party who is covered by Article 2.1 (Scope);
(b) immigration formality means a visa, permit, pass or other document or electronic authority granting a natural person of one Party the right to enter, reside or work or establish commercial presence in the territory of the granting Party;
(c) natural person of a Party means a natural person of a Party as defined in Article 1(j) (Definitions) of Chapter 8 (Trade in Services); and
(d) temporary entry means entry by a natural person covered by this Chapter, without the intent to establish permanent residence.
4. Grant of Temporary Entry
1. Each Party shall, in accordance with that Party's schedule of specific commitments in Annex 4 (Schedules of Specific Commitments on the Movement of Natural Persons), grant temporary entry or extension of temporary stay in accordance with this Chapter to natural persons of another Party, provided that those natural persons:
(a) follow prescribed application procedures for the immigration formality sought; and
(b) meet all relevant eligibility requirements for temporary entry into, or extension of temporary stay in, the granting Party.
2. Any fees imposed in respect of the processing of an immigration formality shall be reasonable and in accordance with each Party's laws and regulations.
3. A Party may deny temporary entry or extension of temporary stay to natural persons of another Party who do not comply with Paragraph 1(a) or (b).
4. The sole fact that a Party grants temporary entry to a natural person of another Party pursuant to this Chapter shall not be construed to exempt that natural person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practise a profession or otherwise engage in business activities.
5. Schedules of Specific Commitments on the Movement of Natural Persons
Each Party shall set out in its Schedule in Annex 4 (Schedules of Specific Commitments on the Movement of Natural Persons) its commitments for the temporary entry and temporary stay in its territory of natural persons of another Party covered by Article 2.1 (Scope). These Schedules shall specify the conditions and limitations governing those commitments, including the length of stay, for each category of natural persons included therein.
6. Processing of Applications
1. Where an application for an immigration formality is required by a Party, that Party shall promptly process complete applications for immigration formalities or extensions thereof received from natural persons of another Party covered by Article 2.1 (Scope).
2. Each Party shall, upon request and within a reasonable period after receiving a complete application for an immigration formality from a natural person of another Party covered by Article 2.1 (Scope), notify the applicant of:
(a) the receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application including, if approved, the period of stay and other conditions.
3. To the extent permissible under its laws and regulations, each Party shall endeavour to accept applications for immigration formalities in electronic format under the equivalent conditions of authenticity as paper submissions.
4. Where appropriate, each Party shall accept copies of documents authenticated in accordance with its laws and regulations in place of original documents, to the extent its laws and regulations permit.
7. Transparency
1. Each Party shall:
(a) publish or otherwise make publicly available explanatory material on all relevant immigration formalities which pertain to or affect the operation of this Chapter;
(b) no later than six months after the date of entry into force of this Agreement publish, such as on its immigration website, or otherwise make publicly available in its territory and to persons in the territory of the other Parties, the requirements for temporary entry under this Chapter, including explanatory material and relevant forms and documents that will enable natural persons of other Parties to become acquainted with those requirements;
(c) upon modifying or amending any immigration measure that affects the temporary entry of natural persons of another Party, ensure that the information published or otherwise made publicly available pursuant to Subparagraph (b) is updated as soon as possible within 90 days of the modification or amendment; and
(d) establish or maintain mechanisms to respond to enquiries from interested persons regarding its laws and regulations affecting the temporary entry and temporary stay of natural persons.
2. Each Party shall endeavour to publish, to the extent practicable, the information referred to in Paragraph 1 in the English language.
8. Application of Chapter 20 (Consultations and Dispute Settlement)
1. The Parties shall endeavour to settle any differences arising out of the implementation of this Chapter through consultations.
2. No Party shall have recourse to Chapter 20 (Consultations and Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice on the part of the granting Party; and
(b) the natural persons affected have exhausted all available domestic remedies regarding the particular matter.
9. Relation to other Chapters
1. Nothing in this Agreement shall be construed to impose any obligation on a Party regarding its immigration measures, except for this Chapter, Chapter 1 (Establishment of a Free Trade Area, Objectives and General Definitions), Chapter 19 (Institutional Provisions), Chapter 20 (Consultations and Dispute Settlement) and Chapter 21 (Final Provisions).
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Chapter 10. ELECTRONIC COMMERCE
Section A. General Provisions
1. Definitions
For the purposes of this Chapter:
(a) computing facilities means computer servers and storage devices for processing or storing information for commercial use;
(b) covered person means:
(i) a "covered investment" as defined in Article 1(a) (Definitions) of Chapter 11 (Investment);
(ii) an “investor of a Party” as defined in Article 1(d) (Definitions) of Chapter 11 (Investment) but does not include an investor in a financial institution or an investor in a financial service supplier; (1) or
(iii) a service supplier of a Party as defined in Article 1 (Definitions) of Chapter 8 (Trade in Services),
but does not include a "financial institution", a "public entity", or a "financial service supplier", as defined in Article 1 (Definitions) of Annex 8A (Financial Services),
(c) electronic authentication means the process of verifying or testing an electronic statement or claim, in order to establish a level of confidence in the statement's or claim's reliability;
(d) electronic invoicing means the automated creation, exchange and processing of requests for payments between suppliers and buyers using a structured digital format;
(e) unsolicited commercial electronic message means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient; (2) and
(f) trade administration documents means forms issued or controlled by a Party which must be completed by or for an importer or exporter in relation to the import or export of goods.
2. Principles and Objectives
1. The Parties recognise the economic growth and opportunities provided by electronic commerce, the importance of frameworks that promote consumer confidence in electronic commerce and the importance of facilitating the development and use of electronic commerce.
2. In supporting the development and promotion of electronic commerce, each Party recognises the importance of providing an enabling legal and regulatory environment, providing a conducive and competitive business environment and protecting the public interest.
3. The legal and regulatory frameworks in each Party that support electronic commerce shall take into account model laws, conventions, principles or guidelines of relevant international organisations or bodies.
4. The Parties recognise the importance of the principle of technological neutrality and the benefits of alignment in policy and regulatory approaches among the Parties as far as possible, to facilitate cross-border electronic commerce.
5. The objectives of this Chapter are to:
(a) promote electronic commerce among the Parties and the wider use of electronic commerce globally;
(b) contribute to creating an environment of trust and confidence in the use of electronic commerce; and