3. If a Party enters into an agreement notified under Article V or Article V bis of the GATS, it shall upon request from the other Party afford adequate opportunity to that Party to negotiate the benefits granted therein.
4, The provisions of this Chapter shall not be so construed as to prevent any Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.
Article 11.4. MARKET ACCESS
1. With respect to market access through the modes of supply identified in the definition of "trade in services" contained in Article 11.2 each Party shall accord services and service suppliers of the other Party treatment no less favorable than that provided for under the terms, limitations and conditions agreed and specified in its schedule. (2)
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 on 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; (3)
(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 11.5. NATIONAL TREATMENT
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers. (4)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other 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 favorable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
Article 11.6. ADDITIONAL COMMITMENTS
Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 11.4 or 11.5, including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's schedule.
Article 11.7. 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. 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 the other 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.
3. Where authorisation is required by a Party for the supply of a service, in sectors where specific commitments are undertaken, 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 aim to ensure that measures relating to qualification requirements and procedures, technical standards, and licensing requirements:
(a) are based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) are not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, are not in themselves a restriction on the supply of the service.
5. In determining whether a Party is in conformity with the obligation under paragraph 4, account shall be taken of international standards of relevant international organizations (5) applied by that Party.
6. In sectors where specific commitments are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party.
7. The Parties shall jointly review the results of the negotiations on disciplines on domestic regulation, pursuant to Article V4 of the GATS, with a view of incorporating them into this Chapter.
Article 11.8. RECOGNITION
1. For the purpose of the fulfilment of its relevant standards or criteria for the authorization, licensing or certification of service suppliers, each Party shall give due consideration, as appropriate, to any requests by the other Party to recognize the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognizes, 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 the other Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted in the territory of that other Party should also be recognised.
3. The professional bodies from both Parties may negotiate agreements for mutual recognition of education, or experience obtained, requirements met or licences or certifications granted. Upon a request being made in writing by a Party to the other Party, the receiving Party shall transmit the request to its relevant professional body. The Parties shall report periodically to the Joint Committee on progress and on impediments experienced. Any delay or failure by these professional bodies to negotiate or to reach and conclude an agreement on the details of such arrangements shall not be regarded as a breach of a Party's obligations under this paragraph and shall not be subject to Chapter 12 (Dispute Settlement).
4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
Article 11.9. 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 as inscribed in the Parties' respective schedules, 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 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. (6)
Article 11.10. 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.
Article 11.11. 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 Partyâs obligations under Article 11.3 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, the 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) authorizes or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 11.12. BUSINESS PRACTICES
1. Parties recognize that certain business practices of service suppliers, other than those falling under Article 11.11, may restrain competition and thereby restrict trade in services.
2. Each Party shall, at the request of any other 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 co-operate 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 law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 11.13. PAYMENTS AND TRANSFERS
1. Except under the circumstances envisaged in Article 11.14, a Party shall not apply restrictions on international transfers and payments for current transactions with the other Party, relating to its specific commitments.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the IMF Agreement, including the use of exchange actions which are in conformity with that Agreement, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 11.14 or at the request of the International Monetary Fund.
Article 11.14. RESTRICTIONS TO SAFEGUARD THE BALANCE-OF-PAYMENTS
1. The Parties shall endeavor to avoid the imposition of restrictions to safeguard the balance of payments.
2. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GATS, which are hereby incorporated into and made part of this Chapter.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 11.15. SCHEDULES OF SPECIFIC COMMITMENTS
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 11.4, 11.5, and 11.6. With respect to sectors where such commitments are undertaken, each schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 11.6; and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 11.4 and 11.5 are inscribed in the column relating to Article 11.4. In this case, the inscription is considered to provide a condition or qualification to Article 11.5 as well.
Article 11.16. REVIEW
1. With the objective of further liberalizing trade in services between them, the Parties shall review their schedules of specific commitments and their Lists of MFN Exemptions at least every three years to provide for a reduction or elimination of substantially all remaining discrimination between the Parties with regard to trade in services covered in this Chapter on a mutually advantageous basis and ensuring an overall balance of rights and obligations. The first such review shall take place not later than two years after the entry into force of this Agreement.
2. The Parties shall jointly review the negotiations provided for in paragraph 4 of Article VI and paragraph 1 of Article XV of the GATS and incorporate any results of such negotiations, as appropriate, into this Chapter.
Article 11.17. ANNEXES
The following Annexes are attached to this Chapter:
Annex 11-A (Lists of MFN Exemptions);
Annex 11-B (Movement of Natural Persons Supplying Services); Annex 11-C (Financial Services);
Annex 11-D (Telecommunications Services); and
Annex 11-E (Schedules of Specific Commitments).
Chapter 12. DISPUTE SETTLEMENT
Article 12.1. OBJECTIVE
1. The objective of this Chapter is to provide an effective and efficient dispute settlement process between the Parties regarding their rights and obligations under this Agreement.
2. The Parties shall endeavor to agree regarding the interpretation and application of this Agreement and shall make all efforts through cooperation, consultation, or other means, to reach a mutually agreed solution concerning any matter that might affect its operation.
3. A solution mutually acceptable to the Parties to a dispute and consistent with this Agreement is clearly to be preferred. In the absence of a mutually agreed solution, the first objective of this Chapter will be in general to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of this Agreement.
Article 12.2. SCOPE AND COVERAGE
1. Unless otherwise provided in this Agreement, the provisions of this Chapter shall apply with respect to any dispute arising from the interpretation, application, fulfillment or non-fulfillment of the provisions contained in this Agreement.
2. If any Party considers that any benefit it could reasonably have expected to accrue to it under any provision of this Agreement is being nullified or impaired as a result of the application of any measure by the other Party that is not inconsistent with this Agreement, the Party may have recourse to dispute settlement under this Chapter.
3. When an Arbitral Tribunal has ruled that a provision of this Agreement has not been observed, the Party complained against shall take such measures as necessary to ensure the observance of such provision within its territory.
Article 12.3. MUTUALLY AGREED SOLUTION
The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time. The Parties shall jointly notify the Joint Committee of any such solution. Upon notification of the mutually agreed solution, any dispute settlement procedure under this Chapter shall be terminated.
Article 12.4. CONSULTATIONS
1. Any dispute with respect to any matter referred to in Article 12.2 shall, as far as possible, be settled by consultations between the Parties.
2. Any request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue, and an indication of the legal basis of the request, including the provisions of the Agreement considered to be applicable.
3. If a request for consultation is made pursuant to paragraph 2, the Party to which the request is made shall reply to the request within 15 days after the date of its receipt and shall enter into consultations within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution.
4, Consultations on matters of urgency, including those regarding perishable or seasonal goods shall be held within 15 days after the date of submission of the request, and shall be deemed concluded within 25 days after the date of submission of the request.
5. Consultations shall take place, unless the Parties agree otherwise, on the territory of the Party complained against.
6. The Parties shall make every effort to reach a mutually satisfactory solution to any matter through consultations. To this end, the Parties shall:
(a) Provide sufficient information as may be reasonably available at the stage of consultations to enable a full examination of the measure alleged to affect the implementation of the Agreement; and
(b) Treat as confidential any information exchanged during the consultations.
Article 12.5. CONCILIATION
1. The Parties may at any stage of any dispute settlement procedure under this Chapter agree to undertake conciliation. Conciliation may begin at any time and be suspended or terminated by either Party at any time.
2. All proceedings under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings under the provisions of this Chapter.
Article 12.6. MEDIATION
1. If consultations fail to produce a mutually acceptable solution, the Parties may, by mutual agreement, seek the services of a mediator appointed by the Joint Committee.
Any request for mediation shall be made in writing and identify the measure that has been subject of consultations, in addition to the mutually agreed terms of reference for the mediation.
2. During the mediation process the Parties shall not initiate arbitration proceedings conducted in accordance with this Chapter unless the Parties agree otherwise.
3. The Joint Committee shall appoint within 10 days of receipt of the request a mediator selected by lot from the persons included in the list referred to in Article 12.8 who is not a national of either of the Parties. The mediator shall convene a meeting with the Parties no later than 30 days after being appointed. The mediator shall receive the submissions of both Parties no later than 15 days before the meeting and issue an opinion no later than 45 days after having been appointed. The mediator's opinion may include a recommendation on steps to resolve the dispute that is consistent with this Agreement. The mediator's opinion shall be non-binding.
4. Deliberations and all information including documents submitted to the mediator shall be kept confidential and shall not be brought for the Arbitral Tribunal proceedings conducted in accordance with this Chapter, unless the Parties agree otherwise.
5. The time limits referred to in paragraph 3 may be amended, should circumstances so demand, upon mutual agreement of the Parties. Any amendment shall be notified in writing to the mediator.
6. In the event that mediation produces a mutually acceptable solution to the dispute, both Parties shall submit a notification in writing to the mediator.
Article 12.7. CHOICE OF FORUM
Disputes regarding any matter covered both by this Agreement and the WTO Agreement or any other free trade agreement to which both Parties are party may be settled in either forum selected by the complaining Party. Once dispute settlement procedures are initiated under Article 12.10 to this Agreement or under Article 6 (Establishment of Panels) of the Understanding on Rules and Procedures Governing the Settlement of Disputes contained in Annex 2 to the WTO Agreement or any other free trade agreement to which both Parties are party, the forum thus selected shall be used to the exclusion of the other.
Article 12.8. ROSTERS OF ARBITRATORS
1 . Each Party shall establish within six months after the date of entry into force of this Agreement and maintain an indicative roster of individuals who are willing and able to serve as arbitrators. Each roster shall be composed of five members.
2. For the position of chair of the Arbitral Tribunal, the Parties shall establish within six months after the date of entry into force of this Agreement and maintain a roster of six individuals, who are not nationals of either Party, who shall not have their usual place of residence in either Party, and who are willing and able to serve as chair of the Arbitral Tribunal. This roster list shall be appointed by consensus.
3. The Parties may have recourse to the rosters even if the rosters are not complete. 4, Once established, the rosters shall remain in effect until the Parties constitute a new roster. The Parties may appoint a replacement where a roster member is no longer available to serve.
Article 12.9. QUALIFICATION OF ARBITRATORS
All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or in solution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, impartiality, reliability, and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from any Party;
(d) be nationals of states having diplomatic relations with both Parties; and
(e) comply with the Code of Conduct attached as Annex 12-B to this Agreement.
Article 12.10. REQUEST FOR THE ESTABLISHMENT OF AN ARBITRAL TRIBUNAL
1. The complaining Party may request the establishment of an arbitral tribunal if:
(a) the Party complained against does not reply to the request for consultations in accordance to the time frames provided in this Chapter;
(b) consultations are not held within the period of 60 days after the date of receipt of the request for consultations;
(c) the Parties have failed to settle the dispute through consultations within 60 days after the date of receipt of the request for consultations; or
(d) the Parties have had recourse to mediation and no mutually acceptable solution has been reached within 15 days after the issuance of the mediator's opinion.
2. Requests for the establishment of an Arbitral Tribunal shall be made in writing to the Party complained against and to the Joint Committee. The complaining Party shall identify in its request the specific measure at issue, and shall explain how that measure constitutes a violation of the provisions of this Agreement in a manner that clearly presents the legal basis for the complaint (1), including indicating the relevant provisions of this Agreement.
3. A Party shall not request the establishment of an Arbitral Tribunal to review a proposed measure.
4. The request to establish the Arbitral Tribunal referred to in this Article shall form the terms of reference of the Arbitral Tribunal unless otherwise agreed by the Parties.
Article 12.11. COMPOSITION OF THE ARBITRAL TRIBUNAL
1. The Parties shall apply the following procedures in establishing an Arbitral Tribunal:
(a) the Arbitral Tribunal shall comprise three members;
(b) within 15 days after the notification of the request for the establishment of the Arbitral Tribunal, the complaining Party shall appoint one arbitrator and the Party complained against shall appoint one arbitrator. If the complaining Party or the Party complained against fail to appoint an arbitrator within such period, an arbitrator shall be selected by lot from the indicative roster of that Party established under Article 12.8 within 3 days after expiration of said period;
(c) the Parties shall endeavor to agree on a third arbitrator who shall serve as chair, within 15 days from the date the second arbitrator has been appointed or selected. If the Parties are unable to agree on the chair, the chair shall be selected by lot from the roster established under Article 12.8 within 3 days after expiration of said period;
(d) each disputing Party shall endeavor to select arbitrators who have expertise or experience relevant to the subject matter of the dispute.
2. In case that a Party raises a reasoned objection against an arbitrator regarding his or her compliance with the Code of Conduct attached as Annex 12-B, the Parties shall follow the procedures provided for in rules 15 and 16 of Annex 12-A.
3. If an arbitrator is unable to participate in the proceedings, is removed or resigns, a new arbitrator shall be selected as provided for in Annex 12-A.
Article 12.12. FUNCTION OF ARBITRAL TRIBUNALS
1. The function of an Arbitral Tribunal shall be to make an objective assessment of the matter before it, in accordance with the request for the establishment of an Arbitral Tribunal, including an examination of the facts of the case and their applicability and consistency with this Agreement. If the Arbitral Tribunal determines that a measure is inconsistent with a provision of this Agreement, it shall recommend that the Party complained against bring the measure into conformity with that provision.
2. The Arbitral Tribunal shall base its award on the relevant provisions of this Agreement and on the information provided during the proceedings including submissions, evidence and arguments made at the hearings.
3. The Arbitral Tribunals established under this Chapter shall interpret the provisions of this Agreement in accordance with customary rules of interpretation of public international law (2). Arbitral Tribunals cannot increase or diminish the rights and obligations contained in this Agreement.
Article 12.13. PROCEEDINGS OF ARBITRAL TRIBUNALS
1. Unless the Parties otherwise agree, the Arbitral Tribunal shall apply the Rules of Procedure attached as Annex 12-A, that shall ensure:
(a) confidentiality of the proceedings and all written submissions to, and communications with, the Arbitral Tribunal;
(b) that the deliberations, hearings, sessions and meetings of the Arbitral Tribunal shall be held in closed sessions;
(c) a right to at least one hearing before the Arbitral Tribunal; (d) an opportunity for each Party to provide initial and rebuttal submissions;