does not comply with the criteria outlined in subparagraphs 4(a) through 4(c); and
could not reasonably have been expected of that Party at the time the commitments in those sectors were made.
In determining whether a Party is in conformity with its obligations under subparagraph 5(a), international standards of relevant international organisations8 applied by that Party shall be taken into account.
Where a Party requires authorisation for the supply of a service, that Party shall ensure that its competent authorities:
ensure that any authorisation fees charged for the completion of relevant application procedures are reasonable, transparent, and do not in themselves restrict the supply of a service. For the purposes of this subparagraph, authorisation fees do not include fees for the use of natural resources, payment for auction, tendering, or other non-discriminatory means of awarding concessions, or mandated contributions to universal services provision;
within a reasonable period of time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision concerning the application;
to the extent practicable, establish an indicative time frame for processing of an application;
on request of the applicant, provide, without undue delay, information concerning the status of the application;
if the competent authorities consider an application incomplete for processing under the Party’s laws and regulations, inform the applicant that the application is incomplete within a reasonable period of time, and on request of the applicant, identify, where practicable, all the additional information that is required to complete the application, and provide the opportunity to remedy deficiencies within a reasonable time frame;
if an application is terminated or denied, to the extent possible and without undue delay, inform the applicant in writing of the
8 “Relevant international organisations” refers to international bodies whose membership is open to the relevant bodies of the Parties.
reasons for such action. The applicant will have the possibility of resubmitting, at its discretion, a new application;
to the extent permissible under its laws and regulations, do not require physical presence in the territory of a Party for the submission of an application for a licence or qualification;
endeavour to accept applications in electronic format under the equivalent conditions of authenticity as paper submissions, in accordance with its laws and regulations; and
where they deem appropriate, accept copies of documents authenticated in accordance with its laws and regulations, in place of original documents.
Each Party shall provide adequate procedures to verify the competence of professionals of the other Party. If licensing or qualification requirements include the completion of an examination, each Party shall, to the extent practicable, ensure that:
the examination is scheduled at reasonable intervals; and
a reasonable period of time is provided to enable interested persons to submit an application.
Each Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorisation. If a service is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.
If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities to the extent practicable permit submission of an application at any time throughout the year.9 If a specific time period for applying exists, the Party shall ensure that the competent authorities allow a reasonable period for the submission of an application.
If a Party adopts or maintains measures relating to the authorisation of the supply of a service, the Party shall ensure that its competent authorities reach and administer their decisions in a manner independent from any supplier of the service for which authorisation is required.10
Paragraphs 1 through 10 shall not apply to:
a sector which remains non-committed by reason of a Party’s Schedule in Annex 8H (Schedule of Specific Commitments -
9 Competent authorities are not required to start considering applications outside of their official working hours and working days.
10 For greater certainty, this provision does not mandate a particular administrative structure; it refers to the decision-making process and administering of decisions.
India) or Annex 8I (Schedule of Non-Conforming Measures -
New Zealand); and
a measure to the extent that such measure is not subject to Article 8.4 (National Treatment) or Article 8.5 (Market Access) by reason of a Party’s commitments made in accordance with either Article 8.7 (Schedule of Specific Commitments) or Article
8.8 (Schedule of Non-Conforming Measures).
For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in a non-Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the non-Party concerned, or may be accorded autonomously.
If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-Party, nothing in Article 8.6 (Most-Favoured-Nation Treatment) shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party.
A Party that is party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, upon request, to negotiate its accession to such an agreement or arrangement, or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licences, or certifications obtained or requirements met in that other Party’s territory should be recognised.
A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and non-Parties 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.
Where appropriate, recognition should be based on multilaterally agreed criteria. In appropriate cases, Parties shall work in cooperation with relevant inter-governmental and non-governmental organisations towards the establishment and adoption of common international
standards and criteria for recognition and common international standards for the practice of relevant services trades and professions.
As set out in Annex 8D (Professional Services), each Party shall endeavour to facilitate trade in professional services, including through encouraging relevant bodies in its territory to enter into negotiations for agreements or arrangements on recognition.
Monopolies and Exclusive Service Suppliers
Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party’s obligations under Article 8.4 (National Treatment) and Article 8.5 (Market Access).
Where a Party’s monopoly supplier of a service 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 commitments, that Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
If a Party has a reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraphs 1 or 2, it may request that Party establishing, maintaining, or authorising such a supplier to provide specific information concerning the relevant operations.
This Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
authorises or establishes a small number of service suppliers; and
substantially prevents competition among those suppliers in its territory.
Disclosure of Confidential Information
Nothing in this Chapter shall be construed as requiring a Party to provide to the other Party confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular juridical persons, public or private.
The Parties recognise that certain business practices of service suppliers, other than those falling under Article 8.15 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
Each Party shall, on request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The requested Party shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The requested Party may also provide other information available to the requesting Party, subject to its laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Except under the circumstances envisaged in Article 18.4 (Measures to Safeguard the Balance of Payments), a Party shall not apply restrictions on international transfers or payments for current transactions relating to its commitments.
Nothing in this Chapter shall affect the rights and obligations of a Party as a member of the International Monetary Fund (“IMF”) under the Articles of Agreement of the International Monetary Fund, adopted at the United Nations Monetary and Financial Conference (Bretton Woods, New Hampshire) on July 22, 1944 (“IMF Articles of Agreement”), as may be amended, including the use of exchange actions which are in conformity with the IMF Articles of Agreement, as may be amended, provided that the Party shall not impose restrictions on any capital transaction inconsistently with its commitments under this Chapter regarding such transactions, except under Article 18.4 (Measures to Safeguard the Balance of Payments) or on request of the IMF.
A Party may deny the benefits of this Chapter:
to the supply of any service, if it establishes that the service is supplied from or in the territory of a non-Party;
to a service supplier that is a juridical person, if it establishes that it is not a service supplier of the other Party; and
in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
by a vessel registered under the laws and regulations of a non-Party; and
by a person of a non-Party which operates or uses the vessel in whole or in part.
A Party may deny the benefit of this Chapter to a service supplier of the other Party, if the service supplier is a juridical person owned or controlled by persons of a non-Party, and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person.
The Parties note the multilateral negotiations pursuant to Article X of GATS on the question of emergency safeguard measures based on the principle of non-discrimination. The Parties shall review the incorporation of safeguard measures pending any further developments in the multilateral fora pursuant to Article X of GATS.
In the event that a Party encounters difficulties in the implementation of its commitments under this Chapter, that Party may request consultations with the other Party to address such difficulties.
Notwithstanding subparagraph 3(b) of Article 8.2 (Scope), the Parties shall review the issue of disciplines on subsidies related to trade in services in light of any disciplines agreed under Article XV of GATS with a view to their incorporation into this Chapter.
A Party which considers that it is adversely affected by a subsidy of the other Party related to trade in services may request consultations with the other Party on such matters. The requested Party shall accord sympathetic consideration to such a request.
No Party shall have recourse to dispute settlement under Chapter 19 (Dispute Settlement) for any request made or consultations held under this Article, or any other dispute arising under this Article.
The Parties shall strengthen cooperation efforts in sectors, including sectors which are not covered by current cooperation arrangements. The Parties shall discuss and agree on the sectors for cooperation and develop cooperation programmes in these sectors in order to improve their domestic services capacity and their efficiency and competitiveness.
Recognising that trade in audiovisual services, including film and television co-productions, can significantly contribute to the development of the audiovisual industry and to the intensification of cultural and economic exchange between them, the Parties shall endeavour to enhance cooperation in the sector.
The Parties hereby establish a Committee on Trade in Services (“Services Committee”) composed of representatives of each Party.
Unless otherwise agreed by the Parties, the Services Committee shall meet once a year, or without undue delay at the request of either Party. The meetings shall take place in India or in New Zealand alternately or by any other appropriate means of communication, as agreed by the representatives of the Parties.
With respect to issues relating to this Chapter, the Services Committee shall:
monitor and review the implementation and operation of this Agreement;
consider and discuss technical issues arising from the implementation of this Agreement;
adopt decisions or make recommendations;
conduct the preparatory work necessary to support the functions of the Joint Commission, including when the Joint Commission adopts decisions or recommendations; and
provide a forum for the Parties to exchange information, discuss best practices and share implementation experiences.
The Services Committee may decide on its own rules of procedure, in the absence of which the Rules of Procedure of the Joint Commission shall apply mutatis mutandis.
The Services Committee shall report to the Joint Commission on the results and conclusions from each of its meetings.
Each Party shall, within 60 days of entry into force of this Agreement, designate an official contact point to receive and facilitate official communications between the Parties on any matter relating to this Chapter. Each Party shall promptly notify the other Party, in writing, of any change to its contact point. On request of the other Party, the contact point shall:
identify the office or official responsible for the relevant matter; and
assist as necessary in facilitating communications with the requesting Party with respect to that matter.
Chapter 9. INVESTMENT PROMOTION AND COOPERATION
Article 9.1. Objectives
1. The objective of this Chapter is to enhance foreign direct investment (“FDI”) as a means for fostering economic growth, capital intensity, capacity building and innovation, as well as generating employment opportunities.
2. The Parties seek to deepen their economic relationship through mutually beneficial cooperation, contributing to economic growth, development and prosperity, grounded in the principles of good faith, mutual benefit and the Parties’ right to regulate.
3. To fulfil the objectives of this Chapter, New Zealand shall aim to increase foreign direct investment into India from investors of New Zealand in accordance with Article 9.2 (Investment Promotion).
Article 9.2. Investment Promotion
New Zealand shall promote FDI (1) from investors of New Zealand into India with the aim to increase such investment by US Dollars 20 billion within 15 years of the date of entry into force of this Agreement. (2)
Article 9.3. Investment Cooperation
1. The Parties recognise the importance of enhancing both the quantity and quality of FDI, including through joint initiatives for research and innovation, technology flows, technical and skill development, exchange of knowledge and capacity building, towards achieving economic growth and development.
2. Cooperation between the Parties in this respect may include:
(a) conducting information exchanges between the Parties to identify investment opportunities of mutual interest with the aim of enhancing FDI, technological advancement, skill development, and growth;
(b) developing strategies and programs to promote investment, R&D collaboration, technology cooperation, and skill development, focusing on high-value-added sectors linked to regional and global value chains, including but not limited to renewable energy, digital services, and infrastructure;
(c) developing mechanisms for joint investments and ventures between enterprises, including with SMEs and seeking to incorporate programs for capacity-building and the exchange of technological know-how into these ventures;
(d) facilitating public-private dialogues for the identification of investment opportunities in, and matchmaking of investors between, the Parties;
(e) facilitating continued skill development, vocational education and training, including for SMEs, including to support the adoption of new technologies and best practices;
(f) encouraging technological partnerships and joint ventures, with an emphasis on technology adoption, and workforce upskilling; and
(g) facilitating partnerships among centres of excellence, government agencies and expert institutes in fields of mutual interest and leveraging such partnerships to further industrial competitiveness and capabilities, technological advancements, skill-development, exchange of technological know-how, and inclusive development.
3. The Parties may cooperate pursuant to paragraph 2 through activities such as:
(a) regular missions in areas of mutual interest with high-ranking delegations;
(b) promoting cooperation with relevant government agencies to expand opportunities for business and industry
(c) annual high-level meetings, virtual or in-person, with the participation of the private sector; to discuss, inter alia, opportunities for enhancing investment, technological advancement, knowledge exchange, and skill development, in sectors of mutual interest, including renewable energy, digital services and other technology-driven sectors;
(d) regular investment promotion events, including at various international fora with participation of the private sector and industry bodies from both Parties, aimed at meeting the objectives of this Chapter;
(e) sector-specific business roundtables; thematic expert exchanges and workshops; and promotional events in India and in New Zealand to identify opportunities of investment, promote stakeholder collaboration, knowledge and technology flows, joint initiatives for research and development, and exchange of skills and vocational training practices in areas of mutual interest;
(f) support for investment promotion agencies and other industry bodies and associations in setting up representations and engagement in each Party’s market;
(g) support for vocational education and training projects, especially in sectors where skill gaps are prominent; and
(h) other activities as mutually agreed by the Parties.
Article 9.4. Investment Desks
1. To the extent practicable, each Party shall establish an Investment Desk to support (3) the activities referred to in Article 9.3 (Investment Cooperation).
2. In view of promotion activities for investment into India, India shall establish a dedicated Investment Desk to assist (4) investors from New Zealand seeking to invest, investing or having invested, in particular with any problems that may arise. For India, such a desk would also account for India’s commitments under paragraph 1.
Article 9.5. Contact Points
1. Each Party shall, within 60 days of the date of entry into force of this Agreement, designate an official contact point to address matters related to this Chapter. Each Party shall promptly notify the other Party of any change to its contact point.
2. The contact points shall endeavour to facilitate communication and coordination between the Parties regarding the implementation of this Chapter.
Article 9.6. Transparency (5)
Each Party shall aim to publish (6), or otherwise make publicly available, to the extent practicable, the information (7) necessary for investors to comply with the requirements and procedures for obtaining the authorisation, in such a manner as to enable investors to become acquainted with it.
Article 9.7. Committee on Investment Promotion and Cooperation
1. In order to pursue the objectives of this Chapter, the Parties hereby establish the Committee on Investment Promotion and Cooperation (“Investment Committee”), which shall be composed of representatives of each Party, and be co-chaired jointly by one representative of each Party.
2. The functions of the Investment Committee shall be to:
(a) assess, review and monitor, the implementation of this Chapter;
(b) undertake reviews of the progress made towards achievement of commitment as set out in Article 9.2 (Investment Promotion) and the implementation of the activities as set out in Article 9.3 (Investment Cooperation);
(c) provide a platform for the Parties to exchange information, review developments, discuss progress and identify additional opportunities of mutual interest for engagement pursuant to Article 9.3 (Investment Cooperation). The outcomes of the reviews may be placed in a Report on Investment Cooperation, identifying achievements, and mutually agreed proposals for the way forward;
(d) seek to resolve any issues or differences pertaining to matters covered by this Chapter;
(e) by mutual agreement of the Parties, engage with the private sector and other stakeholders on exploring opportunities to pursue the objectives of this Chapter;
(f) make recommendations for amendments or modification of this Chapter, as required, by mutual agreement of the Parties;
(g) recommend a mechanism to discuss challenges faced by investors, discuss best practices and exchange information on a periodic basis, with the intent to find mutually agreeable resolution to such problems;
(h) report and make recommendations to the Joint Commission, as necessary; and
(i) consider any other issues regarding investment opportunities that are referred to it by the Joint Commission.
3. Within 120 days of its first meeting, the Investment Committee shall establish the Working Procedures to govern its functioning and procedures for realising the objectives of this Chapter.
4. The Investment Committee shall meet within one year of the date of entry into force of this Agreement. Thereafter, the Investment Committee shall meet whenever necessary but normally once every two years. The Investment Committee shall meet either physically or through electronic videoconferencing, or other means.
5. Each Party may request at any time, through a notice in writing to the other Party, that a special meeting of the Investment Committee be held. Such a meeting shall take place within 30 days of receipt of the request, unless the Parties agree otherwise.
6. The Investment Committee may, by mutual agreement of the Parties, engage with the private sector, and other stakeholders, on exploring opportunities to pursue the objectives as set out in Article 9.1 (Objectives).
7. The Investment Committee shall make decisions by consensus.
8. In performing its duties, the Investment Committee may work with other committees and subsidiary bodies established under the Agreement.
9. All official communications related to this Chapter shall be undertaken in the English language.
Article 9.8. Consultations
Any differences concerning the fulfilment of the commitment set out in Article 9.2 (Investment Promotion) shall be resolved in accordance with Article 9.9 (Review, Reporting and Three-tier Government-to-Government Consultations).
Article 9.9. Review, Reporting and Three-tier Government-to-Government Consultations
1. The Parties agree to a three-tier government-to-government consultations procedure for resolution of differences raised in relation to the commitment set out in Article 9.2 (Investment Promotion).
2. The Investment Committee shall review progress towards the achievement of the objective to increase investment from New Zealand into India by US Dollars 20 billion (hereinafter “investment objective”) and the commitment undertaken by New Zealand as set out in Article 9.2 (Investment Promotion).
3. The first review by the Investment Committee shall be held no later than five years after the date of entry into force of this Agreement. The second review by the Investment Committee shall be held no later than 10 years after the date of entry into force of this Agreement. The final review by the Investment Committee shall take place 15 years after the date of entry into force of this Agreement. The Parties may mutually agree on a different timeline or additional reviews.
4. For each such review under paragraph 3, the Investment Committee shall review the progress towards achievement of the investment objective and the commitment undertaken by New Zealand as set out Article 9.2 (Investment Promotion) and record its findings in a report titled “Investment Report”, including recording any unforeseen circumstances which have had a material bearing on the progress.
5. In case of occurrence of any unforeseen circumstances including global pandemic, war, geopolitical disruptions, financial crisis or sustained economic underperformance, or other similar factors beyond New Zealand’s control which have had a material bearing on the progress to achieve the objective, the Parties may adjust the investment objective by mutual agreement of the Parties, accordingly through an amendment of Article 9.2 (Investment Promotion).
6. Should the investment objective not be achieved by the final review, and India considers that New Zealand has not fulfilled its commitment set out in Article 9.2 (Investment Promotion), India may request consultations by the Investment Committee. The Investment Committee shall be convened within 30 days of receipt of India’s written request for such consultations.
7. The scope of the consultations shall be limited to determining whether New Zealand has fulfilled its commitment as set out in Article 9.2 (Investment Promotion), and where applicable, to finding a mutually agreed solution between the Parties.
8. The Investment Committee shall endeavour to settle issues within 60 days from convening of the Investment Committee, with due consideration to the final report. This period may be extended by no more than six months by mutual agreement of the Parties.
9. If the Investment Committee determines that the commitment set out in Article 9.2 (Investment Promotion) has not been fulfilled, the Investment Committee shall make recommendations to the Joint Commission.