“owned” by persons of a Party if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Party;
“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; or
“affiliated” with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
“juridical person of a Party” means a juridical person which is either:
constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party or the other Party; or
in the case of the supply of a service through commercial presence, owned or controlled by:
natural persons of that Party; or
juridical persons of that Party identified under subparagraph (f)(i);
“measures by a Party affecting trade in services” includes measures in respect of:
the purchase or use of, or payment for, a service;
the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
“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;
“natural person of a Party” means a natural person who resides in the territory of that Party or elsewhere and who under the law of that Party:
is a national of that Party; or
has the right of permanent residence1 in that Party, in the case of a Party which accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, provided no Party is obligated to accord to such permanent residents treatment
1 Where a Party has made a reservation with respect to permanent residents in its Schedules in Annex 8H (Schedule of Specific Commitments - India), Annex 8I (Schedule of Non-Conforming Measures - New Zealand), Annex 8J (Schedule of Specific Commitments on Temporary Movement of Natural Persons - India), Annex 8K (Schedule of Specific Commitments on Temporary Movement of Natural Persons – New Zealand) or Annex 8L (Schedule of Commitments on Temporary Employment Entry – New Zealand) , that reservation shall not prejudice that Party’s rights and obligations in GATS.
more favourable than would be accorded by that Party to such permanent residents;
“person” means a natural person or a juridical person;
“sector” of a service means:
with reference to a commitment, one or more, or all, subsectors of that service, as specified in a Party’s Schedule in Annex 8H (Schedule of Specific Commitments - India) or Annex 8I (Schedule of Non-Conforming Measures - New Zealand); and
otherwise, the whole of that service sector, including all of its sub-sectors;
“selling and marketing of air transport services” means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising, and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
“services” includes any service in any sector except services supplied in the exercise of governmental authority;
“service consumer” means any person that receives or uses a service;
“service of the other Party” means a service which is supplied:
from or in the territory of that other Party, or in the case of maritime transport, by a vessel registered under the laws and regulations of that other Party, or by a person of that other Party which supplies the service through the operation of a vessel or its use in whole or in part; or
in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;
“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;
“service supplier” means a person that supplies a service;2 3
“supply of a service” includes the production, distribution, marketing, sale, and delivery of a service;
“trade in services” means the supply of a service:
from the territory of one Party into the territory of the other Party;
in the territory of one Party to the service consumer of the other Party;
by a service supplier of one Party, through commercial presence in the territory of the other Party; and
by a service supplier of one Party, through presence of natural persons of a Party in the territory of the other Party; and
“traffic rights” means the rights for scheduled and non-scheduled services to operate or carry passengers, cargo, and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged, and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.
This Chapter shall apply to measures by a Party affecting trade in services.
For the purposes of this Chapter, “measures by a Party” means measures taken by:
central, regional, or local governments and authorities of that Party; and
2 Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Chapter. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the territory where the service is supplied.
3 The Parties confirm their shared understanding that “service supplier” in this Chapter has the same meaning that it has under subparagraph (g) of Article XXVIII of GATS.
non-governmental bodies in the exercise of powers delegated by central, regional, or local governments or authorities of that Party.
In fulfilling its obligations and commitments under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies within its territory.
This Chapter shall not apply to measures affecting:
government procurement;
subsidies or grants, including government-supported loans, guarantees, and insurance, provided by a Party or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers, or service suppliers;
services supplied in the exercise of governmental authority;
cabotage4 in maritime transport services; and
in respect of air transport services, measures affecting traffic rights however granted, or measures affecting services directly related to the exercise of traffic rights, other than measures affecting:
aircraft repair and maintenance services;
the selling and marketing of air transport services; and
computer reservation system services.
This Chapter shall not impose any obligation on a Party with respect to a natural person of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that natural person with respect to that access or employment. For greater certainty, this Chapter shall not
4 “Maritime cabotage” means the transportation of passengers or goods between any port or place located in a Party and any other port or place located in that Party and transportation of passengers or goods originating or terminating in the same port or place located in that Party, including transportation of passengers or goods between a port or a place located in that Party and another port, place, installation or structures situated in the Exclusive Economic Zone of that Party or on the continental shelf of that Party. Maritime cabotage shall further include services such as floating storage, offloading, towing, anchor-handling, dredging, off-shore drilling or production, diving support, maintenance support, various types of surveys, cable laying, sea-bed mining operations, pipe-laying, lighterage, salvage, marine construction, hook-up, port and terminal related support services, provided such services are supplied in the above areas by the vessels.
apply to measures regarding citizenship, nationality or residence on a permanent basis.
Each Party shall make commitments under Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.6 (Most-Favoured-Nation Treatment) in accordance with either Article 8.7 (Schedule of Specific Commitments) or Article 8.8 (Schedule of Non-Conforming Measures).
A Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) shall make commitments under the applicable paragraphs in Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.6 (Most-Favoured-Nation Treatment). A Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) may also make commitments under Article 8.9 (Additional Commitments).
A Party making commitments in accordance with Article 8.8 (Schedule of Non-Conforming Measures) shall make commitments under the applicable paragraphs in Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.6 (Most-Favoured-Nation Treatment). A Party making commitments in accordance with Article 8.8 (Schedule of Non-Conforming Measures) may also make commitments under Article
8.9 (Additional Commitments).
For greater certainty, a Party’s schedule in Annex 8H (Schedule of Specific Commitments - India) and Annex 8I (Schedule of Non-Conforming Measures - New Zealand) shall form an integral part of this Chapter.
A Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) shall, in the sectors inscribed in its schedule of specific commitments and subject to any conditions and qualifications set out therein, accord to services and service suppliers of the other 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.5
A Party making commitments in accordance with Article 8.8 (Schedule of Non-Conforming Measures) shall accord to services and service suppliers of the other 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, subject to its non-conforming measures as provided in Article 8.8 (Schedule of Non-Conforming Measures).
A Party may meet the requirement under paragraph 1 or 2 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.
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 the Party compared to like services or service suppliers of the other Party.
With respect to market access through the modes of supply identified in subparagraph (s) of Article 8.1 (Definitions), a Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations, and conditions agreed and specified in its Schedule in Annex 8H (Schedule of Specific Commitments - India).6
The measures which a Party shall not adopt or maintain either on the basis of a regional sub-division or on the basis of its entire territory, either in sectors where market access commitments are undertaken and in accordance with its specific commitments, as provided in Annex 8H (Schedule of Specific Commitments - India), or subject to its
5 Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
6 If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (s)(i) of Article 8.1 (Definitions) and if the cross-border movement of capital is an essential part of the service itself, that Party is thereby committed to allow such movement of capital. If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (s)(iii) of Article 8.1 (Definitions), it is thereby committed to allow related transfers of capital into its territory.
non-conforming measures, as provided in Article 8.8 (Schedule of Non-Conforming Measures) are defined as:
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;
limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
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;
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;
measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
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.
Most-Favoured-Nation Treatment
A Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) shall, in respect of the sectors and subsectors set out in its Most-Favoured-Nation Treatment Sectoral Coverage Appendix to its Schedule in Annex 8H (Schedule of Specific Commitments - India) and subject to any conditions and qualifications set out therein, accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-Party.
A Party making commitments in accordance with Article 8.8 (Schedule of Non-Conforming Measures) shall, subject to its non-conforming measures set out in its Schedule in Annex 8I (Schedule of Non-Conforming Measures - New Zealand), accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a non-Party.
Notwithstanding paragraphs 1 and 2, each Party reserves the right to adopt or maintain any measure that accords differential treatment to services and service suppliers of any non-Party under any bilateral or multilateral international agreement in force at, or signed prior to, the date of entry into force of this Agreement.
The provisions of this Chapter shall not be construed as to prevent a 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.
Schedule of Specific Commitments
A Party making commitments in accordance with this Article shall set out in its Schedule in Annex 8H (Schedule of Specific Commitments - India), the specific commitments it undertakes under Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.9 (Additional Commitments).
With respect to sectors where the commitments referred to in paragraph 1 are undertaken, each Schedule in Annex 8H (Schedule of Specific Commitments - India) shall specify:
terms, limitations, and conditions on market access;
conditions and qualifications on national treatment;
undertakings relating to additional commitments; and
where appropriate, the time frame for implementation of such commitments.
Measures inconsistent with both Article 8.4 (National Treatment) and Article 8.5 (Market Access) shall be inscribed in the column relating to Article 8.5 (Market Access). In this case, the inscription shall be considered to provide a condition or qualification to Article 8.4 (National Treatment) as well.
Schedule of Non-Conforming Measures
For a Party making commitments in accordance with this Article, Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.6 (Most-Favoured-Nation Treatment) shall not apply to:
any existing non-conforming measure that is maintained by that Party at:
the central level of government, as set out by that Party in List A of its Schedule in Annex 8I (Schedule of Non-Conforming Measures - New Zealand);
a regional level of government, as set out by that Party in List A of its Schedule in Annex 8I (Schedule of Non-
Conforming Measures - New Zealand); or
a local level of government;
the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); and
an amendment to any non-conforming measure referred to in subparagraph (a), to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 8.4 (National Treatment), Article 8.5 (Market Access), and Article 8.6 (Most-Favoured-Nation Treatment).
Article Article 8.4 (National Treatment), Article 8.5 (Market Access) and Article
8.6 (Most-Favoured-Nation Treatment) shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities set out in List B of its Schedule in Annex 8I (Schedule of Non-Conforming Measures - New Zealand).
The Parties may negotiate commitments with respect to measures affecting trade in services, including those regarding qualifications, standards, or licensing matters, not subject to scheduling, under:
Article Article 8.4 (National Treatment), Article 8.5 (Market Access), or Article 8.6 (Most-Favoured-Nation Treatment), for a Party Making Commitments In Accordance with Article 8.7 (Schedule of Specific Commitments); or
Article Article 8.4 (National Treatment), Article 8.5 (Market Access), or Article 8.6 (Most-Favoured-Nation Treatment), for a Party Making Commitments In Accordance with Article 8.8 (Schedule of Non-Conforming Measures).
A Party making additional commitments under subparagraph 1(a) shall inscribe such commitments in its Schedule in Annex 8H (Schedule of Specific Commitments - India).
A Party making additional commitments under subparagraph 1(b) shall inscribe such commitments in List C of its Schedule in Annex 8I (Schedule of Non-Conforming Measures - New Zealand).
A Party making commitments in accordance with Article 8.7 (Schedule of Specific Commitments) (“transitioning Party”) shall submit a schedule of non-conforming measures agreed between the Parties in accordance with paragraphs 2 through 6 (“Agreed Schedule”) that accords with Article 8.8 (Schedule of Non-Conforming Measures – New Zealand) to the Committee on Trade in Services no later than 6 years after the date of entry into force of this Agreement.
The transitioning Party shall provide to the other Party (“responding Party”) its proposed schedule of non-conforming measures within 5 years after the date of entry into force of this Agreement.
The commitments contained in the transitioning Party’s proposed schedule of non-conforming measures shall provide an equivalent level of liberalisation and shall not result in a decrease in the level of commitments as compared to the transitioning Party’s schedule of specific commitments in Annex 8H (Schedule of Specific Commitments
- India).
The responding Party shall consider the transitioning Party’s proposed schedule of non-conforming measures and shall have the opportunity to make comments to ensure that the transitioning Party’s proposed schedule of non-conforming Measures meets the requirements specified in paragraph 3. The transitioning Party shall have the opportunity to respond to any comments received and to modify or revise its proposed schedule, as may be necessary, with a view to resolving any ambiguities, omissions, or errors in its proposed schedule of non-conforming measures.
In the event that the verification and clarification process undertaken pursuant to paragraph 4 is not completed within 12 months from the date the transitioning Party’s proposed schedule of non-conforming measures is provided to the other Party, the Parties may agree to extend the time as provided under paragraph 1, to any other date agreed to by the Parties.
Upon completion of the verification and clarification process as set out in paragraph 4, the Parties may agree in writing to amend this Agreement by replacing the transitioning Party’s Schedule of Specific Commitments in Annex 8H (Schedule of Specific Commitments - India) with the transitioning Party’s Agreed Schedule in Annex 8I (Schedule of Non-Conforming Measures - New Zealand). The transitioning Party
may then submit the Agreed Schedule to the Committee on Trade in Services in accordance with paragraph 1.
Notwithstanding Article 20.2 (Amendments), once:
the transitioning Party has submitted its Agreed Schedule to the Committee on Trade in Services in accordance with paragraph 1;
that transitioning Party has notified the responding Party in writing of the completion of its applicable domestic legal procedures; and
the responding Party notifies the transitioning Party in writing of the completion of its applicable domestic procedures,
the transitioning Party’s Agreed Schedule shall enter into force between the Parties after 60 days of the responding Party’s written notification in accordance with subparagraph (c), or on such other date as the Parties may agree.
A Party (the “modifying Party”) may modify or withdraw any commitment in its Schedule in Annex 8H (Schedule of Specific Commitments - India) or Annex 8I (Schedule of Non-Conforming Measures - New Zealand) at any time after three years from the date on which that commitment entered into force, provided that:
it notifies the other Party (the “affected Party”) of its intention to modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal;
upon notification of a Party’s intent to make such modification, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment; and
such an agreement between the Parties has been reached.
In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is no less favourable to trade than provided for in the Schedules in Annex 8H (Schedule of Specific Commitments - India) or Annex 8I (Schedule of Non-Conforming Measures - New Zealand) prior to such negotiations.
If agreement under subparagraph 1(c) is not reached between the modifying Party and the affected Party within three months of the commencement of the process under subparagraph 1(a), the modifying Party may refer the matter to a panel in accordance with the procedures set out in Chapter 19 (Dispute Settlement) or, where agreed between the Parties, to an alternative arbitration procedure. The modifying Party may modify or withdraw a commitment once it has made the compensatory adjustments in conformity with the findings of the panel.
If the modifying Party implements its proposed modification or withdrawal and does not comply with the findings of the panel, the affected Party may modify or withdraw substantially equivalent benefits in conformity with the findings of the panel.
The Parties recognise that transparent measures governing trade in services are important in facilitating the ability of service suppliers to gain access to, and operate in, each other’s markets. Each Party shall promote regulatory transparency in trade in services.
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 affecting trade in services and all international agreements pertaining to or affecting trade in services to which the Party is a signatory; and
to the extent practicable, make the measures and international agreements referred to in subparagraph (a) publicly available on the internet and, to the extent provided under its legal framework, in the English language.
Where publication referred to in paragraph 2 is not practicable, such information7 shall be made otherwise publicly available.
To the extent provided for under its domestic legal framework, each Party shall endeavour to provide a reasonable opportunity for comments by interested persons of the other Party on measures referred to in subparagraph 2(a) before adoption.
Each Party shall respond promptly to any request by the other Party for specific information on:
7 For greater certainty, such information may be published in each Party’s chosen language.
any measures or international agreements referred to in subparagraph 2(a); and
any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services.
Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective, and impartial manner.
Each Party shall maintain or institute as soon as practicable judicial, arbitral, or administrative tribunals or procedures which provide, on request of an affected service supplier, 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.
Nothing in paragraph 2 shall 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.
With a view to ensuring that measures relating to qualification requirements and procedures, technical standards, and licensing requirements and procedures, do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the result of the WTO negotiations on disciplines on such measures, pursuant to Article VI.4 of GATS and shall amend this Article, as appropriate, after consultations between the Parties to bring the results of those negotiations into effect under this Chapter. Such disciplines shall aim to ensure that such requirements, inter alia:
are based on objective and transparent criteria, such as competence and the ability to supply the service;
are not more burdensome than necessary to ensure the quality of the service; and
in the case of licensing procedures, are not in themselves a restriction on the supply of the service.
In sectors in which a Party has undertaken commitments, pending the entry into force of disciplines in these sectors pursuant to paragraph 4, that Party shall not apply licensing and qualification requirements and
technical standards that nullify or impair such commitments in a manner which: