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(b) necessary to protect human, animal or plant life or health;'5
(c) necessary to secure compliance with domestic laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) _ the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
(iii) safety;
(d) inconsistent with Article 5.5 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective'* imposition or collection of direct taxes in respect of services or service suppliers of other Parties;
(ce) inconsistent with Article 5.3 (Most-Favoured-Nation Treatment), provided that the difference in treatment is the result of an agreement on the avoidance of double taxation or provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
Article 5.17.
Security Exceptions Nothing in this Chapter shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
15 For greater certainty, the Parties understand that, to the extent that such measures are otherwise inconsistent with the provisions of this Chapter, the measures referred to in this subparagraph include environmental measures which are necessary to protect human, animal, or plant life or health.
16 Measures that are aimed at ensuring the equitable or effective imposition or collection of direct taxes include measures taken by a Party under its taxation system which: (i) apply to non-resident service suppliers in recognition of the fact that the tax obligation of non-residents is determined with respect to taxable items sourced or located in the Partyâs territory; (ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Partyâs territory; (iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; (iv) apply to consumers of services supplied in or from the territory of another Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Partyâs territory; (v) distinguish service suppliers subject to tax on worldwide taxable items from other service suppliers, in recognition of the difference in the nature of the tax base between them; or (vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Partyâs tax base. Tax terms or concepts in subparagraph (d) of this Article and in this footnote are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic laws and regulations of the Party taking the measure.
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(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 5.18. Schedules of Specific Commitments
1. Each Party shall set out in a Schedule the specific commitments it undertakes under Articles 5.4 (Market Access), 5.5 (National Treatment) and 5.6 (Additional Commitments). 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 5.6 (Additional Commitments); 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 5.4 (Market Access) and 5.5 (National Treatment) shall be subject to paragraph 2 of Article XX of the GATS.
3. The Partiesâ Schedules of Specific Commitments are set out in Annex VIII (Schedules of Specific Commitments).
Article 5.19. Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Partyâs Schedule of Specific Commitments. The consultations shall be held within three months from the receipt of the request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in the Schedule of Specific Commitments prior to such consultations is
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maintained. Modifications of Schedules are subject to the procedures set out in Article 13.1 (Joint Committee). ARTICLE 5.20 Review
With the objective of further liberalising trade in services between them, the Parties shall review at least every five years, or more frequently if so agreed, their Schedules of Specific Commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and ongoing work in the WTO. The
first such review shall take place no later than seven years from the entry into force of this Agreement.
Article 5.21. Annexes
The following Annexes form an integral part of this Chapter: (a) Annex X (Telecommunications Services); (b) Annex XI (Movement of Natural Persons Supplying Services); (c) Annex XII (Maritime Transport and Related Services); (d) Annex XIII (Financial Services); (e) Annex XIV (Domestic Regulation); and
® Annex XV (Tourism and Travel Services).
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1. services sectors as set out in Article 5.1 (Scope and Coverage
2.
3.
17
Chapter 6. INVESTMENT
Article 6.1. Scope and Coverage
This Chapter applies to commercial presence in all sectors, with the exception of
y.17
This Chapter does not include investment protection and shall be without prejudice to the interpretation or application of other international agreements relating to investment or taxation to which one or several EFTA States and Thailand are parties.
This Chapter shall not apply to:
) (b)
government procurement; and
subsidies or grants provided by a Party.
Article 6.2. Definitions
For the purposes of this Chapter:
)
(b)
(c)
(d)
âSuridical personâ means any legal entity duly constituted or otherwise organised under a Partyâs domestic laws and regulations, whether for profit or otherwise, and whether privately owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
âjuridical person of a Partyâ means a juridical person constituted or otherwise organised under the domestic laws and regulations of a Party and engaged in substantive business operations in that Party;
ânatural personâ means a person who has the nationality, or is a permanent resident, of a Party in accordance with its domestic laws and regulations;
âcommercial presenceâ means any type of business establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office,
It is understood that portfolio investment and services specifically exempted from the scope of Chapter 5 (Trade in Services) shall not fall within the scope of this Chapter.
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within the territory of another Party for the purpose of performing an economic activity.
Article 6.3. National Treatment
Each Party shall, subject to Article 6.4 (Reservations) and the reservations set out in Annex XVI (Investment Reservations), accord to juridical and natural persons of another Party, in respect of all measures affecting the commercial presence of such persons, treatment no less favourable than that it accords, in like situations, '* to its own juridical and natural persons, in respect of the commercial presence of such persons.
Article 6.4.
Reservations 1. Article 6.3 (National Treatment) shall not apply to: (a) any reservation in Annex XVI (Investment Reservations); and
(b) an amendment to a reservation referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the reservation with Article 6.3 (National Treatment);
to the extent that such reservations are inconsistent with Article 6.3 (National Treatment).
2. A Party may, either upon request of another Party or unilaterally, remove in whole or in part its reservations set out in Annex XVI (Investment Reservations).
3. A Party may propose to incorporate a new reservation into Annex XVI (Investment Reservations) which does not affect the general level of mutually advantageous commitments provided for in Annex XVI (Investment Reservations) or the overall level of commitments of that Party under this Agreement by written notification to the other Parties. Upon receipt of such written notification, a Party may request consultations regarding the reservation within 60 days. Upon receipt of the request for consultations, the Party intending to incorporate the new reservation shall enter into consultations with the requesting Party within three months from the date of the request.
4. Modifications of the Annex XVI (Investment Reservations) pursuant to paragraphs 2 and 3 are subject to the procedures set out in Article 13.1 (Joint Committee).
8 For greater certainty, whether the treatment is accorded in âlike situationsâ under this Article
depends on the totality of the circumstances.
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Article 6.5. Key Personnel
1. Each Party shall, subject to its domestic laws and regulations, grant natural persons of another Party, and key personnel who are employed by natural or juridical persons of another Party, entry and temporary stay in its territory in order to engage in activities connected with commercial presence, including the provision of advice or key technical services.
2. Each Party shall, subject to its domestic laws and regulations, permit natural or juridical persons of another Party, and their commercial presence, to employ, in connection with commercial presence, any key personnel of the natural or juridical personâs choice regardless of nationality and citizenship provided that such key personnel has been permitted to enter, stay and work in its territory and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key personnel.
3. Each Party shall, subject to its domestic laws and regulations, grant entry and temporary stay and provide any necessary confirming documentation to the spouse and minor children of a natural person who has been granted entry, temporary stay and authorisation to work in accordance with paragraphs 1 and 2. The spouse and minor children shall be admitted for the period of the stay of that person.
Article 6.6. Right to Regulate
1. The Parties reaffirm their right to regulate within their jurisdictions to achieve legitimate policy objectives, such as the protection of public health, safety, or the environment.
2. No Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, measures to meet health, safety or environmental concerns as an encouragement for the establishment, acquisition, expansion or retention in its territory of a commercial presence of persons of another Party or a non-Party.
Article 6.7. Payments and Transfers
1. Except under the circumstances envisaged in Article 6.8 (Restrictions to Safeguard the Balance of Payments), no Party shall apply restrictionsâ? on current
19 Thailand may adopt or maintain any measure relating to Thai Baht for the purpose of preventing
speculation on Thai Baht, in accordance with the Exchange Control Act B.E. 2485, the Bank of Thailand Act B.E. 2485, and Bank of Thailandâs circulars and guidelines, as amended.
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payments and capital movementsâ® relating to commercial presence activities in non- services sectors.â!
2. Current payments and capital movements referred to in paragraph 1 shall be made in any freely convertible currency at the market rate of exchange prevailing at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer through the equitable, non-discriminatory, and good faith application of its domestic laws and regulations relating to, inter alia:
(a) bankruptcy, insolvency, or the protection of the rights of creditors including employees;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives; (c) criminal or penal offences and the recovery of the proceeds of crime;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
4. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of Agreement of the IMF, including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that no Party shall impose restrictions on capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 6.8 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 6.8. Restrictions to Safeguard the Balance of Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereofâ, a Party may adopt or maintain restrictions on payments or transfers relating to commercial presence activities in non-services sectors. It is recognised that particular pressures on the balance of payments of a Party in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development or economic transition.
20 For greater certainty, this provision only covers capital movements related to the conduct of real
economic activity of the commercial presence in non-services sectors.
a The Parties are of the understanding that a Party may apply restrictions in accordance with the Articles of Agreement of the IMF.
2 For greater certainty, this covers situations where, in exceptional circumstances, payments or transfers cause or threaten to cause serious difficulties for macroeconomic management.
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2. For the purposes of this Chapter, paragraphs 2 and 3 of Article XII of the GATS apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee. ARTICLE 6.9 Consultations on Subsidies
Notwithstanding Article 6.1 (Scope and Coverage), a Party which considers that it is adversely affected by a subsidy of another Party may request ad hoc consultations with that Party on such matters. The requested Party shall enter into such consultations.
Article 6.10. General Exceptions
For the purposes of this Chapter, Article XX of the GATT 1994 and Article XIV of the GATS apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.â
Article 6.11. Security Exceptions
For the purposes of this Chapter, Article XXI of the GATT 1994 and paragraph 1 of Article XIV bis of the GATS apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 6. Review
1. This Chapter shall be subject to periodic review by the Joint Committee regarding the possibility to further develop the Partiesâ commitments.
2. Pursuant to Article 13.1 (Joint Committee), the Parties undertake to review the reservations set out in Annex XVI (Investment Reservations) with a view to reducing or removing such reservations.
3 The Parties understand that the measures referred to in subparagraph (b) of Article XX of the GATT 1994, and subparagraph (b) of Article XIV of GATS, include environmental measures necessary to protect human, animal or plant life or health, and that subparagraph (g) of Article XX of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
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3. Ifa Party accords more favourable treatment to natural and juridical persons of a non-Party with regard to measures within the scope of Article 6.3 (National Treatment) in an agreement concluded after the signing of this Agreement, it shall, upon request of another Party, enter into negotiations with that other Party without undue delay with a view to reviewing Annex XVI (Investment Reservations) pursuant to Article 13.1 (Joint Committee) to ensure a no less favourable treatment.
Article 6.13. Promotion of Investment
The Parties recognise the importance of promoting cross-border investment and technology flows as a means for achieving economic growth and sustainable development. Co-operation between the Parties on matters of mutual interest in this respect may include:
(a) identifying investment opportunities through appropriate means, such as organising investment promotion activities; and
(b) conducting information exchanges on measures and other issues relating
to investment promotion.
Article 6.14. Facilitation of Investment
Subject to its domestic laws and regulations, each Party shall endeavour to facilitate investments among the Parties, including through:
(a) creating an environment conducive to increased investment flows; (b) simplifying its procedures for investment applications and approvals;
(c) promoting the dissemination of investment information, including investment rules, laws, regulations, policies, and procedures; and
(d) establishing or maintaining contact points, one-stop investment centres, focal points, or other entities in the respective Party to provide assistance and advisory services to investors, including the facilitation of operating licences and permits.
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Chapter 7. INTELLECTUAL PROPERTY
Article 7.1. Protection of Intellectual Property
1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, including counterfeiting and piracy, in accordance with this Chapter and Annex XVII (Protection of Intellectual Property), and the international agreements in the field of intellectual property to which Parties are parties.
2. The Parties shall accord to each Partyâs nationals treatment no less favourable than that they accord to their own nationals in respect of rights provided under this Chapter, subject to the exceptions provided in the TRIPS Agreement and in the multilateral agreements administered by the World Intellectual Property Organization (WIPO) not referred to in the TRIPS Agreement.
3. The Parties shall accord to each Partyâs nationals treatment no less favourable than that accorded to nationals of a non-Party, subject to the exceptions provided in the TRIPS Agreement.
4. The Parties agree to discuss and aim to resolve, within the mandate of the Joint Committee set outin Article 13.1 (Joint Committee), issues relating to the implementation or application of this Chapter and Annex XVII (Protection of Intellectual Property), with a view to avoiding or remedying trade distortions.
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Chapter 8. GOVERNMENT PROCUREMENT
Article 8.1. Objectives
The Parties recognise the importance of enhancing the mutual understanding of each otherâs government procurement laws, regulations, and procedures with a view to developing cooperation among the Parties and facilitating participation in their respective procurement markets by promoting non-discrimination, transparency and reciprocity.
Article 8.2. Scope
This Chapter shall apply to the domestic laws, regulations and procedures of a Party regarding government procurement.
Article 8.3. Principles
Each Party shall promote and apply the principles of transparency, value for money, accountability, and due process regarding government procurement procedures, in accordance with the Partyâs domestic laws, regulations and procedures.
Article 8.4. Transparency
1. Each Party shall publish or make publicly available its domestic laws, regulations, procedures and judicial decisions regarding government procurement, including information on where tender opportunities are published.
2. To the extent possible and as appropriate, each Party shall endeavour to make available and update the information referred to in paragraph 1 through electronic means.
3. Each Party shall specify in Annex XVII (Means of Publication for Government Procurement) the means utilised by that Party to publish the information referred to in paragraph 1.
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Article 8.5. Use of Electronics Means
In respect of procurement conducted by entities within the scope of this Chapter, the Parties shall endeavour to use electronic means for the publication of notices, tender documentation, information exchange and communication, and the submission of tenders.
Article 8.6. Environmentally Sustainable Procurement
The Parties recognise that government procurement can contribute to environmental sustainability. Accordingly, each Party shall endeavour to incorporate environmentally sustainable procurement policies and practices in accordance with the Partyâs domestic laws, regulations and procedures.