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SINGAPORE-AUSTRALIA FREE TRADE AGREEMENT (SAFTA) |
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SINGAPORE-AUSTRALIA FREE TRADE AGREEMENT (SAFTA) CONSOLIDATED TEXT
PREAMBLE ............................................................................................................. 3
ANNEX 1: EXPORT DUTIES ANNEX 2: RULES OF ORIGIN
2A: CERTIFICATION OF ORIGIN REQUIREMENTS
2B: ALLOWABLE LABOUR AND OVERHEAD COSTS
2C: LIST OF GOODS WHICH MUST BE SUBJECT TO THE
LAST PROCESS OF MANUFACTURE WITHIN THE TERRITORY OF A PARTY
2D: LIST OF GOODS SUBJECT TO 30% THRESHOLD
ANNEX 3: GOVERNMENT PROCUREMENT
3A: LIST OF ENTITIES FOR AUSTRALIA
3B: LIST OF ENTITIES FOR SINGAPORE
ANNEX 4: RESERVATIONS TO CHAPTER 7 (TRADE IN SERVICES) AND CHAPTER 8 (INVESTMENT)
4-I: COVER NOTE TO RESERVATIONS
4-I(A): AUSTRALIAíS RESERVATIONS
4-I(B): SINGAPOREíS RESERVATIONS
4-II: COVER NOTE TO RESERVATIONS
1
4-II(A): AUSTRALIAíS RESERVATIONS
4-II(B): SINGAPOREíS RESERVATIONS
4-III: ADDITIONAL COMMITMENTS
2
PREAMBLE
Singapore and Australia (ìthe Partiesî)
Conscious of their longstanding friendship and growing trade and investment relationship;
Desiring to improve the efficiency and competitiveness of their goods and services sectors and expand trade and investment between them;
Recognising that strengthening of their closer economic partnership will bring economic and social benefits and improve the living standards of their people;
Building on their rights, obligations and undertakings under the World Trade Organization, and other multilateral, regional and bilateral agreements and arrangements;
Recognising their commitment to securing trade liberalisation and an outward looking approach to trade and investment;
Mindful of the Asia-Pacific Economic Cooperation goals of free and open trade and investment;
Conscious that a framework of rules for trade in goods and services, and investment will contribute to the promotion of closer links with other economies, especially in the Asia-Pacific region;
Recognising the need for good corporate governance and a predictable, transparent and consistent business environment to enable businesses to conduct transactions freely, use resources efficiently and take investment and planning decisions with certainty; and
Believing that their cooperative framework could be a dynamic one that also covers newer areas of economic cooperation;
Have agreed as follows:
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ARTICLE 1
Objectives
The objectives of the Parties in concluding this Agreement are:
(a) to strengthen the relationship between them;
(b) to liberalise trade in goods and services between them and to establish
a framework conducive for bilateral investments;
(c) to support the wider liberalisation process in the Asia-Pacific Economic Cooperation consistent with its goals of free and open trade and investment;
(d) to build upon their commitments at the World Trade Organization, and
to support its efforts to create a predictable, and more free and open global trading environment;
(e) to improve the efficiency and competitiveness of their goods and services sectors and expand trade and investment between them;
(f) to establish a framework of transparent rules to govern trade and investment between them; and
(g) to explore newer areas of economic cooperation.
ARTICLE 2
General Definitions
For the purposes of this Agreement:
(a) ìAPECî means Asia-Pacific Economic Cooperation;
(b) ìdaysî means calendar days, including weekends and holidays;
(c) ìgoodsî and ìproductsî shall be understood to have the same meaning unless the context otherwise requires;
(d) (i) the term ìterritoryî means, in respect of the Republic of Singapore, the territory of the Republic of Singapore as well as the territorial sea and any maritime area situated beyond the territorial sea which has been or might in the future be designated under its national
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law, in accordance with international law, as an area within which Singapore may exercise rights with regards to the sea, the sea-bed, the subsoil and the natural resources;
(ii) the term ìterritoryî, in respect of Australia, includes:
(A) the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands, the Territory of Ashmore and Cartier Islands, the Territory of Heard Island and McDonald Islands, and the Coral Sea Islands Territory; and
(B) Australia's territorial sea, contiguous zone, exclusive economic zone and continental shelf; and
(e) ìWTOî means the World Trade Organization.
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ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìcustoms dutiesî means any duties or charges of any kind imposed in connection with the importation of a good, and any surtaxes or surcharges
imposed in connection with such importation, but does not include:
(i) charges equivalent to an internal tax including excise duties and
a goods and services tax imposed consistently with a Partyís WTO
obligations;
(ii) fees or other charges that:
(A) are limited in amount to the approximate cost of services rendered; and
(B) do not represent a direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes; and
(iii) any anti-dumping or countervailing duty applied consistently with the provisions of Article VI of the GATT 1994, the WTO Agreement on Implementation of Article VI of the GATT 1994, and the WTO Agreement on Subsidies and Countervailing Measures;
(b) ìexport subsidyî means a subsidy as defined by Article 3 of the WTO Agreement on Subsidies and Countervailing Measures and includes export subsidies listed in Article 9 of the WTO Agreement on Agriculture; and
(c) ìthe GATT 1994î means the WTO General Agreement on Tariffs and
Trade 1994, including Annex I (Notes and Supplementary Provisions).
ARTICLE 2
National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT 1994. To this end, the provisions of Article
III of the GATT 1994, are incorporated into and shall form part of this Agreement.
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ARTICLE 3
Customs Duties
free from the date of entry into force of this Agreement.
ARTICLE 4
Customs Value
The Parties shall determine the customs value of goods traded between them
in accordance with the provisions of Article VII of the GATT 1994 and the WTO
Agreement on Implementation of Article VII of the GATT 1994.
ARTICLE 5
Export Duties
A Party shall not impose export duties on the goods set out in Annex 1 (Export
Duties), when exported from its territory to the territory of the other Party.
ARTICLE 6
Non-tariff Measures
ARTICLE 7
Subsidies and Countervailing Measures
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ARTICLE 8
Anti-Dumping Measures
their commitment to the provisions of the WTO Agreement on Implementation of
Article VI of the GATT 1994.
(a) the time frame to be used for determining the volume of dumped imports in an investigation or review shall be representative of the imports of both dumped and non-dumped goods, for a reasonable period, and such reasonable period shall normally be at least 12 months;
(b) if a decision is taken to impose an anti-dumping duty pursuant to Article 9.1 of the WTO Agreement on Implementation of Article VI of the GATT 1994, the Party taking such a decision, shall normally apply the ìlesser dutyî rule, by imposing a duty which is less than the dumping margin where such lesser duty would be adequate to remove the injury to the domestic industry; and
(c) notification procedures shall be as follows:
(i) immediately following the acceptance by a Party of a properly documented application from an industry in that Party for the initiation
of an anti-dumping investigation in respect of goods from the other
Party, the first Party shall immediately inform the other Party;
(ii) where a Party considers that, in accordance with Article 5 of
the WTO Agreement on Implementation of Article VI of the GATT
1994, there is sufficient evidence to justify the initiation of an anti- dumping investigation, it shall give written notice to the other Party and shall act in accordance with Article 17.2 of that Agreement concerning consultations.
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ARTICLE 9
Safeguard Measures
A Party shall not initiate or take any safeguard measure within the meaning of the WTO Agreement on Safeguards against the goods of the other Party from the date
of entry into force of this Agreement.
ARTICLE 10
Transparency
Article X of the GATT 1994 is incorporated into and shall form part of this
Agreement.
ARTICLE 11
Measures to Safeguard the Balance of Payments
Where a Party is in serious balance of payments and external financial difficulties or threat thereof, it may, in accordance with the GATT 1994 and the Understanding on the Balance-of-Payments Provisions of the GATT 1994, adopt restrictive import measures.
ARTICLE 12
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on
international trade, nothing in this Chapter shall be construed to prevent the adoption
or enforcement by a Party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the importations or exportations of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Chapter, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII of the GATT 1994, the protection
of patents, trade marks and copyrights, and the prevention of deceptive
practices;
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(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the WTO and not disapproved by it or which is itself so submitted and not so disapproved;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of
this Chapter relating to non-discrimination;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all WTO members are entitled to an equitable share of the international supply of such products, and that any such measures, which are
inconsistent with the other provisions of this Chapter shall be discontinued as soon as the conditions giving rise to them have ceased to exist.
ARTICLE 13
Security Exceptions
Nothing in this Chapter shall be construed:
(a) to require any Party to furnish any information the disclosure of which
it considers contrary to its essential security interests;
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military
establishment;
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(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
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ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìallowable cost to manufactureî means the sum of:
(i) the allowable expenditure on materials by the principal manufacturer calculated in accordance with Article 6 (Calculation of Costs ñ Allowable Expenditure on Materials); and
(ii) the allowable expenditure on labour by the principal manufacturer calculated in accordance with Article 7 (Calculation of Costs ñ Allowable Expenditure on Labour); and
(iii) the allowable expenditure on overheads by the principal manufacturer calculated in accordance with Article 8 (Calculation of Costs ñ Allowable Expenditure on Overheads);
(b) ìCertificate of Originî means a certificate complying with the requirements of Annex 2A (Certificate of Origin Requirements);
(c) ìDeclarationî means a declaration made in accordance with Article
11.6;
(d) ìGenerally Accepted Accounting Principlesî means the recognised consensus or substantial authoritative support in the territory of a Party, with respect to the recording of revenues, expenses, costs, assets and liabilities; the disclosure of information; and the preparation of financial statements. These standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
(e) ìinner containerî includes any container into which goods or materials,
as the case may be, are packed, other than a shipping or airline container,
pallet or other similar article;
(f) ìinputî means any matter or substance used or consumed in the manufacture or production of materials (other than matter or substance that is treated as an overhead);
(g) ìmanufactureî means the creation of an article essentially different from the matters or substances that go into such manufacture. Manufacture does not include the following activities, performed alone or in combination with each other:
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(i) restoration or renovation processes such as repairing, re- conditioning, overhauling or refurbishing;
(ii) minimal operations such as pressing, labelling, ticketing, packaging and preparation for sale, conducted alone or in combination with each other; or
(iii) quality control inspections;
(h) ìmaterialî means any matter or substance purchased by the principal manufacturer, and used or consumed in the processing of goods that are
exported to the territory of the importing Party (other than matter or substance that is treated as an overhead);
(i) ìoriginating goodsî, as used in Chapter 2 (Trade in Goods) and this Chapter, means goods that qualify as originating in accordance with the relevant provisions of Section A of this Chapter;
(j) ìpreferential tariff treatmentî means the customs duty rate that is applicable to an originating good pursuant to Article 3.1 of Chapter 2 (Trade
in Goods);
(k) ìprincipal manufacturerî means the person in the territory of a Party who performs, or has had performed on its behalf, the last process of manufacture of the goods;
(l) ìprocessî means any operation performed on the goods and includes:
(i) a process of manufacture;
(ii) minimal operations such as pressing, labelling, ticketing, packaging and preparation for sale, conducted alone or in combination with each other; and
(iii) quality control inspections;
(m) ìproductionî, in relation to wholly obtained goods, means growing, mining, harvesting, fishing, hunting, gathering, trapping, capturing, farming, cultivating1 or otherwise obtaining wholly obtained goods;
(n) ìproducerî, in relation to wholly obtained goods, means a person who grows, mines, harvests, fishes, hunts, gathers, traps, captures, farms, cultivates
or otherwise obtains wholly obtained goods;
(o) ìproduceî, in relation to wholly obtained goods, means to grow, mine, harvest, fish, hunt, gather, trap, capture, farm, cultivate or otherwise obtain wholly obtained goods;
1 Cultivating includes the process of aquaculture.
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(p) ìtotal cost to manufactureî means the sum of:
(i) the total expenditure on materials by the principal manufacturer calculated in accordance with Article 5 (Calculation of Costs ñ Total Expenditure on Materials);
(ii) the allowable expenditure on labour by the principal manufacturer calculated in accordance with Article 7 (Calculation of Costs ñ Allowable Expenditure on Labour);
(iii) the allowable expenditure on overheads by the principal manufacturer calculated in accordance with Article 8 (Calculation of Costs ñ Allowable Expenditure on Overheads); and
(iv) where applicable, the total expenditure by the principal manufacturer on a process, or processes, in the manufacture of the goods performed in the territory of a non-Party calculated in accordance with Article 9 (Calculation of Costs ñ Total Expenditure on Overseas Processing Costs);
(q) ìunmanufactured raw productsî means:
(i) natural or primary products that have not been subjected to an industrial process, other than an ordinary process of primary production, and includes:
(A) animals and products obtained from animals, including greasy wool;
(B) plants and products obtained from plants;
(C) minerals in their natural state and ores; and
(D) crude petroleum; OR
(ii) raw materials recovered in the territory of a Party from waste and scrap;
(r) ìwaste and scrapî means only waste and scrap that:
(i) have been derived from manufacturing operations or consumption; and
(ii) are fit only for the recovery of raw materials; and
(s) ìwholly obtained goodsî means unmanufactured raw products, or waste and scrap.
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ARTICLE 2
Recording of Costs and Tariff Classification
For the purposes of this Chapter:
(a) all costs shall be recorded and maintained in accordance with the Generally Accepted Accounting Principles applicable in the territory of the Party in which the goods are produced or manufactured; and
(b) the basis for tariff classification is the Harmonized Commodity
Description and Coding System.
Section A: Origin Conferment
ARTICLE 3
Originating Goods
(a) wholly obtained goods produced in the territory of that Party;
(b) goods wholly manufactured in that Party from one or more of the following:
(i) unmanufactured raw products;
(ii) waste and scrap produced in the territory of either Party;
(iii) materials wholly manufactured within the territory of either
Party; and/or
(iv) materials that are determined by both Parties to be materials meeting the requirements of Article 3.1(b)(iii);
(c) goods partly manufactured in that Party, provided that the following conditions are met:
(i) that in relation to any goods:
(A) the last process of manufacture was performed in the territory of that Party by, or on behalf of, the principal manufacturer; and
(B) the allowable cost to manufacture the goods is not less than the percentage of the total cost to manufacture the goods specified below:
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(I) 30% for the goods specified in Annex 2D (List of Goods Subject to 30% Threshold); or
(II) 50% for all other goods;
OR
(ii) that in relation to any goods other than those specified in
Annex 2C (List of Goods which Must be Subject to the Last Process of
Manufacture within the Territory of a Party):
(A) one or more processes of manufacture was or were
performed in the territory of that Party by, or on behalf of, the
principal manufacturer;
(B) one or more processes was or were performed in the territory of that Party by, or on behalf of, the principal manufacturer immediately prior to export of the goods to the
territory of the other Party;
(C) the principal manufacturer in that Party incurred all the costs associated with any process performed in the territory of a non-Party; and
(D) the allowable cost to manufacture the goods is not less than the percentage of the total cost to manufacture the goods specified below:
(I) 30% for the goods specified in Annex 2D (List of Goods Subject to 30% Threshold); or
(II) 50% for all other goods.
the importing Party may determine that:
(a) the percentage of 30% can be read as 28%; or
(b) the percentage of 50% can be read as 48%.
to particular goods, or goods of a specific class or kind, in accordance with procedures
to be agreed between the Parties.
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ARTICLE 4
Calculation of Costs ñ General Provisions
(a) the allowable cost to manufacture the goods excludes:
(i) the cost of any material purchased by the principal manufacturer and subsequently processed in the territory of a non- Party; and
(ii) the cost of processing (including the cost of labour or overheads) any material referred to in (i) above that is performed,
whether in the territory of a Party or a non-Party, up until the return of
the processed material to the territory of a Party; and
(b) where minimal operations or quality control inspections are conducted by, or on behalf of, the principal manufacturer, in the territory of a Party, as part of a manufacturing process, the costs of those operations or the quality control inspections, to the extent that they relate to the cost of materials, labour or overheads, can be included in the calculation of the total expenditure on materials and the allowable expenditure on materials, labour and overheads,
as appropriate.
ARTICLE 5
Calculation of Costs ñ Total Expenditure on Materials
Subject to the provisions of Article 4 (Calculation of Costs ñ General
Provisions), for the purposes of ascertaining the total cost to manufacture the goods,
as required by Article 3 (Originating Goods), the total expenditure on materials by the principal manufacturer shall be calculated in accordance with the following provisions:
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(a) subject to Articles 5(b) and 5(c), the total expenditure on materials by the principal manufacturer is the amount incurred, directly or indirectly, by the principal manufacturer for all materials;
(b) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material shall be included in the total expenditure on materials by the principal manufacturer:
(i) freight, insurance, shipping and packing costs, and all other
costs incurred in transporting the material to the first place in the territory of either Party at which a process is performed on that material by, or on behalf, of the principal manufacturer; and
(ii) customs brokerage fees on the material paid in the territory of one or both Parties; and
(c) the following costs, imposed on the materials by either Party, that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material, shall be excluded from the total expenditure on materials by the principal manufacturer:
(i) a customs or excise duty; and
(ii) a tax in the nature of a sales tax, a goods and services tax, an anti-dumping duty or a countervailing duty.
ARTICLE 6
Calculation of Costs ñ Allowable Expenditure on Materials
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on materials by the principal manufacturer shall be calculated in accordance with the following provisions:
(a) subject to Articles 6(b) to 6(d), the allowable expenditure on materials
by the principal manufacturer is the amount incurred, directly or indirectly, by
the principal manufacturer for all materials, in the form purchased by the principal manufacturer, that were manufactured or produced in the territory of either Party;
(b) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material specified in Article 6(a) shall be included in the allowable expenditure on materials by the principal manufacturer:
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(i) freight, insurance, shipping and packing costs, and all other
costs incurred in transporting the material to the first place in the
territory of either Party at which a process is performed on that material by, or on behalf of, the principal manufacturer; and
(ii) customs brokerage fees on the material paid in the territory of one or both Parties;
(c) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material specified in Article 6(a) shall be excluded from the allowable expenditure on materials by the principal manufacturer:
(i) a customs or excise duty;
(ii) a tax in the nature of a sales tax, a goods and services tax, an anti-dumping duty or a countervailing duty, imposed on the materials by either Party; and
(iii) the cost of any input that, in the form it was received by the manufacturer or producer of the material, was not manufactured or produced in the territory of either Party, unless Article 6(d) applies; and
(d) where, in relation to a particular material, other than a material that is provided for processing in a non-Party, the total cost of all inputs that would otherwise be excluded from the allowable expenditure on materials by the principal manufacturer by virtue of Article 6(c)(iii), does not exceed 50% of the total expenditure on that material by the principal manufacturer, as calculated in accordance with Article 5(a), the total cost of those inputs may
be included in the allowable expenditure on materials by the principal manufacturer.
ARTICLE 7
Calculation of Costs ñ Allowable Expenditure on Labour
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the total cost to manufacture and the allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on labour by the principal manufacturer shall be the sum of the part of each cost set out in Section (i) (Labour Costs) of Annex 2B (Allowable
Labour and Overhead Costs):
(a) that is incurred, directly or indirectly, by the principal manufacturer;
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of the Party; and
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(c) that can reasonably be allocated to the processing of the goods in the
territory of the Party.
ARTICLE 8
Calculation of Costs ñ Allowable Expenditure on Overheads
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the total cost to manufacture and allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on overheads by the principal manufacturer shall be the sum of the part of each cost set out in Section (ii) (Overheads) of Annex 2B
(Allowable Labour and Overhead Costs):
(a) that is incurred, directly or indirectly, by the principal manufacturer;
and
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of the Party; and
(c) that can reasonably be allocated to the processing of the goods in the
territory of the Party.
ARTICLE 9
Calculation of Costs ñ Total Expenditure on Overseas Processing Costs
Subject to the provisions of Article 4 (Calculation of Costs ñ General
Provisions), for the purposes of ascertaining the total cost to manufacture the goods,
as required by Article 3 (Originating Goods), the total expenditure by the principal manufacturer on a process, or processes, performed in the territory of the non-Party shall be the sum of that part of each cost:
(a) that is incurred, directly or indirectly, by the principal manufacturer;
and
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of a non-Party, including any associated transport costs; and
(c) that can reasonably be allocated to the processing of the goods in the
territory of the non-Party.
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Section B: Consignment Criteria
ARTICLE 10
Consignment
Preferential tariff treatment shall apply only to originating goods of a Party where they are:
(a) transported directly from the territory of that Party to the territory of the other Party;
(b) transported through the territories of one or more non-Parties, provided that the goods:
(i) did not undergo operations other than packing, packaging, unloading, reloading or operations to preserve them in good condition
in the territory of any such non-Party; and
(ii) were not traded or used in the territory of any such non-Party;
or
(c) transported from a non-Party where minimal operations were performed immediately after import from the Party in which the last process of manufacture was performed and immediately prior to export to the other Party.
Section C: Documentary Evidence
ARTICLE 11
Certification of Origin
a producer or an exporter to apply to an authorised body referred to in Annex 2A
(Certificate of Origin Requirements) for a Certificate of Origin.
revoked Certificate of Origin shall have no force from the date specified in that notice.
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by a representative of the exporter competent to make the Declaration and must
include:
(a) a reference to the exporterís invoice for the goods;
(b) a statement that the goods are identical to goods specified in a valid
Certificate of Origin nominated in the Declaration;
(c) a statement that the goods are originating goods that comply with the rule specified in the nominated Certificate of Origin; and
(d) the signature, name and designation of the exporterís representative, and the date the Declaration is signed.
of the goods, the exporting Party shall require that, prior to making a Declaration pursuant to Article 11.6, the exporter must ensure that the producer or principal manufacturer has a copy of the relevant Certificate of Origin and has obtained from that producer or principal manufacturer written confirmation that the goods are originating goods. The confirmation shall be completed by the representative of the producer or principal manufacturer who is competent to make the confirmation, and shall include:
(a) a reference to the evidence of sale of the goods between the producer
or principal manufacturer and the exporter;2
(b) a statement that the goods are identical to goods specified in a valid
Certificate of Origin nominated in the confirmation;
(c) a statement that the goods are originating goods that comply with the rule specified in the nominated Certificate of Origin; and
(d) the signature, name and designation of the principal manufacturerís representative, and the date the confirmation is signed.
2 Evidence of sale in most cases would refer to an invoice number and not the purchase order number.
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ARTICLE 12
Claim for Preferential Tariff Treatment
treatment to goods imported into its territory from the other Party, provided that the goods are originating goods, the consignment criteria specified in Article 10
(Consignment) have been met, and the importer claiming preferential tariff treatment:
(a) has a valid Certificate of Origin and a Declaration relevant to those goods in its possession when claiming preferential tariff treatment; and
(b) provides a copy of that Certificate of Origin and that Declaration if requested by the importing Party.
after the date of entry into force of this Agreement and for which no preferential tariff
treatment was earlier applied, if:
(a) the claim for preferential tariff treatment is made within 12 months from the date of payment of customs duties, subject to domestic laws and practices in the importing Party; and
(b) the importer provides a copy of the valid Certificate of Origin and
Declaration relevant to those goods.
ARTICLE 13
Records
(a) a producer, a principal manufacturer or an exporter that obtains a
Certificate of Origin, an exporter that makes a Declaration pursuant to Article
11.6, or a producer or principal manufacturer that makes a confirmation
pursuant to Article 11.7 must maintain, for 5 years from the date of the
Certificate of Origin, Declaration or confirmation, as the case may be, all records relating to the origin of the goods for which preferential tariff treatment is claimed in the importing Party, including records associated with:
(i) the purchase of, cost of, value of, and payment for, the goods that were exported from its territory;
23
(ii) the purchase of, cost of, value of, and payment for, all materials used or consumed in the manufacture or production of the goods that were exported from its territory;
(iii) the manufacture or production of the goods in the form in which the goods were exported from its territory; and
(iv) the Certificate of Origin, Declaration and confirmation, as the case may be, relevant to the goods; and
(b) an importer claiming preferential tariff treatment must maintain, for 5
years after the date of importation of the goods, all records relating to the
importation of the goods, including a copy of the Certificate of Origin and the
Declaration relevant to those goods.
ARTICLE 14
Origin Verifications
(a) instituting measures to establish the validity of the Certificate of Origin,
Declaration or confirmation;
(b) issuing written questionnaires to be completed within a period of 30
days;
(c) requesting the supply of records relating to the production, manufacture or export of the goods; and
(d) visiting the factory or premises of the producer, principal manufacturer,
or exporter or any other party in the territory of a Party associated with the production, manufacture, import or export, of the goods or of the materials or inputs used therein.
24
in Article 14.2(d) within the territory of the exporting Party without the prior consent
of that party.
be provided to all relevant parties within 10 days of the decision being made.
ARTICLE 15
Suspension and Denial of Preferential Tariff Treatment
of preferential tariff treatment to goods that are the subject of origin verification
action under Article 14 (Origin Verifications) for the duration of that action, or any part thereof.
(a) the goods do or did not meet the requirements of this Chapter;
(b) the producer, principal manufacturer, exporter, or importer of goods fails or has failed to comply with any of the relevant requirements for
obtaining preferential tariff treatment; or
(c) action taken under Article 14 (Origin Verifications) failed to verify
eligibility of the goods for preferential tariff treatment.
Section D ñ Review and Appeal of Origin Determinations
ARTICLE 16
Review and Appeal
The importing Party shall grant the right of appeal in matters relating to eligibility for preferential tariff treatment to producers, principal manufacturers, exporters or importers of goods traded or to be traded between the Parties, in accordance with its domestic laws and practices.
Section E ñ Consultation and Modifications
25
ARTICLE 17
Consultation and Modifications
an effective and uniform manner, in accordance with the spirit and the objectives of this Agreement.
2D (List of Goods Subject to 30% Threshold) which significantly affects a Partyís principal manufacturer, producer or exporter, the Parties shall enter into consultations
on the possibility of including the goods in question into Section (i) of Annex 2D
(List of Goods Subject to 30% Threshold).
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ARTICLE 1
Purpose and Definitions
(a) ìcustoms lawî means any statutory and regulatory provisions applicable or enforceable by the respective customs administration of each Party; and
(b) ìcustoms proceduresî means the treatment applied by the customs administration of each Party to goods which are subject to customs control.
ARTICLE 2
Scope
This Chapter shall apply, in accordance with the Partiesí respective national laws, rules and regulations, to customs procedures required for clearance of goods traded between the Parties.
ARTICLE 3
General Provisions
further mutually beneficial arrangements to facilitate bilateral trade.
27
(a) be contrary to the public interest as determined by its law, rules and regulations;
(b) be contrary to any of its laws, rules and regulations including but not limited
to those protecting personal privacy or the financial affairs and accounts of
individual customers of financial institutions; or
(c) impede law enforcement.
ARTICLE 4
Paperless Trading
ARTICLE 5
Risk Management
as to facilitate the clearance of low-risk goods and focus on high-risk goods.
ARTICLE 6
Sharing of Best Practices
For future cooperative arrangements, both Parties shall facilitate initiatives to enhance further the exchange of information on best practices in relation to customs procedures, including the application of risk management techniques.
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PHYTOSANITARY MEASURES
ARTICLE 1
Purposes and Definitions
(a) facilitate trade and investment between the Parties through collaborative efforts which minimise the impact of mandatory requirements and/or assessments of manufacturers or manufacturing processes on the goods traded between the Parties, in the most appropriate or cost-effective manner;
(b) complement bilateral agreements and arrangements between the
Parties relating to mandatory requirements; and
(c) build on the Mutual Recognition Agreement on Conformity Assessment between the Government of Australia and the Government of the Republic of Singapore.
(a) ìconformity assessmentî shall have the same meaning as in the Mutual
Recognition Agreement on Conformity Assessment between the Government
of Australia and the Government of the Republic of Singapore;
(b) ìequivalenceî means the state wherein mandatory requirements
applied in the territory of the exporting Party, though different from the
mandatory requirements applied in the territory of the importing Party, meet the legitimate objective or achieve the appropriate level of sanitary or phytosanitary protection of the mandatory requirements applied in the territory
of the importing Party;
(c) ìmandatory requirementsî means all technical regulations and sanitary and phytosanitary measures as may be set out in a Partyís laws, regulations and administrative requirements;
(d) ìregulatory authorityî means an entity of a Party that exercises a legal
right to determine the mandatory requirements, control the import, use or supply of goods within its territory and/or take enforcement action to ensure
that goods marketed within its territory comply with its mandatory requirements;
29
(e) ìsanitary or phytosanitary measureî shall have the same meaning as in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures;
(f) ìSectoral Annexî means an annex to this Chapter which specifies the arrangements in respect of a specific product sector; and
(g) ìtechnical regulationî shall have the same meaning as in the WTO Agreement on Technical Barriers to Trade.
ARTICLE 2
Scope and Obligations
(a) mandatory requirements, as appropriate to its particular national circumstances; and
(b) mandatory requirements necessary to ensure the quality of its imports,
or for the protection of human, animal or plant life or health, or the environment, or for the prevention of deceptive practices or to fulfil other legitimate objectives, at the levels it considers appropriate.
its mandatory requirements. This includes the authority to take appropriate measures
for goods that do not conform to the Partyís mandatory requirements. Such measures may include withdrawing goods from the market, prohibiting their placement on the market or restricting their free movement, initiating a product recall or prohibiting an import.
ARTICLE 3
Origin
This Chapter applies to all goods and/or assessments of manufacturers or manufacturing processes of goods traded between the Parties, regardless of the origin
of those goods, unless otherwise specified in a Sectoral Annex, or unless otherwise
specified by any mandatory requirement of a Party.
30
ARTICLE 4
Harmonisation
The Parties shall, where appropriate, endeavour to work towards harmonisation of their respective mandatory requirements taking into account relevant international standards, recommendations and guidelines, in accordance with their international rights and obligations.
ARTICLE 5
Equivalence of Mandatory Requirements
each otherís mandatory requirements consistent with the purpose of this Chapter.
(a) the procedures for determining and implementing the equivalence of each Partyís mandatory requirements; and/or
(b) the procedures for accepting the results of the conformity assessment and approval procedures; and
(c) the regulatory authorities designated by each Party.
ARTICLE 6
Cooperative Activities on Sanitary and Phytosanitary/Quarantine Matters
certificates.
31
ARTICLE 7
Conformity Assessment
Mutual Recognition Agreement on Conformity Assessment between the Government
of Australia and the Government of the Republic of Singapore, shall consider
arrangements additional to those provided for in this Chapter to ensure that
differences between the structure, organization and operation of conformity assessment procedures in their respective territories do not unnecessarily impede trade between them.
as may be necessary, the principles set out in the APEC Information Notes on Good Regulatory Practice for Technical Regulation with respect to conformity assessment and approval procedures in meeting their international obligations under the WTO Agreement on Technical Barriers to Trade.
ARTICLE 8
Exchange of Information, and Consultation
(a) broaden the exchange of information; and
(b) give favourable consideration to any written request for consultation.
(a) identify and develop new Sectoral Annexes for priority sectors for this
Chapter;
(b) agree to amend or increase the scope of existing Sectoral Annexes with
a view to minimising the impact of mandatory requirements on goods traded between the Parties; and
32
(c) agree on a work programme for the implementation of this Article,
consistent with the provisions of this Chapter, and implement that work
programme expeditiously.
ARTICLE 9
Confidentiality
Nothing in this Chapter shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers would:
(a) be contrary to its essential security interests;
(b) be contrary to the public interest as determined by its domestic laws, rules and regulations;
(c) be contrary to any of its domestic laws, rules and regulations, including
but not limited to those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(d) impede law enforcement; or
(e) prejudice legitimate commercial interests of particular enterprises, public or private.
ARTICLE 10
Final Provisions on Sectoral Annexes
33
ARTICLE 1
Definitions
(a) ìconfidential informationî includes: trade secrets; know-how; privileged information; or any other information that is expressed to be confidential or sensitive by the person disclosing the information or is disclosed in circumstances importing, either expressly or implicitly, an obligation of confidence as recognised by the laws, regulations, procedures and practices of the Party concerned;
(b) ìentitiesî means:
(i) for Australia, those entities listed at Annex 3A and their successors other than those subsequently commercialised or privatised; and
(ii) for Singapore, those entities listed at Annex 3B and their successors other than those subsequently commercialised or privatised;
(b) ìlimited tendering proceduresî means those tendering procedures in which the procuring entity directly invites one or more suppliers to submit
tenders;
(c) ìopen tendering proceduresî means those tendering procedures in which the procuring entity issues a public call for tenders; and
(d) ìtender processî includes all activities directly related to the process of procuring goods or services conducted by a Party or its entities which is open
to participation by persons of the other Party before a contract for the supply of those goods or services is concluded.
ARTICLE 2
Scope and Coverage
34
(a) any law, regulation, procedure or practice regarding any procurement by entities; and
(b) procurement of goods and services 1 by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of goods and services.
(a) internal procurement of goods and services by a Party from its own entities where no other supplier has been asked to tender. However, where such an entity submits a tender in an open tendering procedure, this Chapter shall apply;
(b) procurement of proprietary items required to ensure the integrity of machinery, equipment or systems. However, where such items are available from a number of sources and an open tendering procedure is used, this Chapter shall apply;
(c) procurement of proprietary equipment of a work, health or safety nature specified in industrial agreements. However, where such items are available from a number of sources and an open tendering procedure is used,
this Chapter shall apply;
(d) procurement for the purposes of overseas development assistance;
(e) procurement of goods and services outside the territory of the procuring Party, for consumption outside the territory of the procuring Party;
or
(f) procurement of asset management and financial advisory services pertaining to reserves held by each Partyís Government or its entities.
ARTICLE 3
National Treatment
1 For the purposes of this Chapter, ìgoods and servicesî includes construction.
35
(a) that its entities shall not treat a locally-established supplier less favourably than another locally-established supplier on the basis of degree of foreign affiliation or ownership; and
(b) that its entities shall not discriminate against a locally-established supplier on the basis that it is a supplier of a good or service of the other Party.
Party is a shareholder.
ARTICLE 4
Rules of Origin
A Party shall not apply rules of origin to goods or services imported or supplied for purposes of government procurement covered by this Chapter from the other Party, which are different from the rules of origin applied in the normal course
of trade and at the time of the transaction in question to imports or supplies of the
same goods or services from that other Party.
ARTICLE 5
Technical Specifications
Technical specifications laying down the characteristics of the goods or services to be procured shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
ARTICLE 6
Tendering Principles
36
have a mechanism to eliminate potential conflict of interest between persons administering the process and suppliers participating in the process.
ARTICLE 7
Registration and Qualification of Suppliers
37
ARTICLE 8
Protection and Proper Use of Confidential Information
or its entities, the latter Party shall ensure that such information is kept confidential
and is not used for a purpose other than that for which it was disclosed, except where disclosure is required:
(a) by an order of a court or tribunal;
(b) by a House of Parliament or its Committees, however the relevant
Party or entity may resist such an order by a claim of public interest immunity;
or
(c) under legislation governing access to government information, unless
an exception or exemption under such legislation is successfully invoked in relation to the information.
ARTICLE 9
Protection of Intellectual Property in a Tender Process and the Resulting Contracts
(Intellectual Property) that is supplied by a person of a Party in a tender process shall
not lose that protection on the sole basis that it is so supplied.
intellectual property rights in material that existed prior to the date of the contract unless the contracting Parties expressly agree otherwise in the contract.
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ARTICLE 10
Application of provisions of other Chapters to this Chapter
The provisions of Article 4 (Competitive Neutrality) of Chapter 12
(Competition Policy) shall apply, mutatis mutandis, to procurements within the scope
of this Chapter.
ARTICLE 11
Electronic Procurement
(a) promote equitable access for all potential suppliers of the other Party;
(b) promote the use of systems that are the most cost-effective for potential suppliers, where the Parties utilise authentication systems;
(c) provide for the least cost to potential suppliers, where the Parties elect
to procure goods or services through online or reverse auctions;
(d) protect documentation from unauthorised and undetected alteration;
and
(e) provide appropriate levels of security for data on, and passing through, the procuring entityís network.
ARTICLE 12
Review of tender process
39
the context of a procurement in which they have, or have had, an interest, each Party shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint.
ARTICLE 13
Transparency
(a) procurement laws, regulations, and policy guidelines;
(b) open tendering opportunities and the conditions for participation;
(c) supplier qualification mechanisms and criteria for qualification; and
(d) decisions on contract awards.
ARTICLE 14
Exceptions
protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or
for national defence purposes.
40
countries where the same conditions prevail or a disguised restriction on international
trade, nothing in this Chapter shall be construed to prevent either Party from imposing
or enforcing measures:
(a) necessary to protect public morals, order or safety, human, animal or plant life or health or intellectual property;
(b) relating to the goods or services of handicapped persons, of philanthropic institutions or of prison labour; or
(c) relating to the conservation of exhaustible natural resources.
ARTICLE 15
Opportunities for indigenous persons
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall prevent Australia from promoting employment and training opportunities for its indigenous people in regions where significant indigenous populations exist.
ARTICLE 16
Industry Development
Nothing in this Chapter shall prevent the Parties from using government procurement to promote industry development including measures to assist small and medium enterprises (SMEs) within their territory to gain access to the government procurement market.
ARTICLE 17
Dispute Settlement
A Party may not initiate dispute settlement proceedings under Chapter 16
(Dispute Settlement) regarding its rights and obligations under this Chapter unless:
(a) the matter giving rise to the dispute involves a pattern of practice; and
(b) the suppliers affected have exhausted the available remedies regarding the particular matter.
41
ARTICLE 18
Review of Commitments
42
ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìa service supplied in the exercise of governmental authorityî means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(b) ìcommercial presenceî means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a legal person, or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
(c) ìdirect taxesî comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation
of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital
appreciation;
(d) ìexisting measuresî means measures in force as of the date of entry
into force of this Agreement;
(e) ìlegal personî means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(f) ìlegal person of the other Partyî means a legal person which is either:
(i) constituted or otherwise organised under the law of the other
Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of the other Party; or
43
(B) legal persons of the other Party identified under Article
1(f)(i);
(g) ìmeasureî means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(h) ìmeasures by Partiesî means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(i) ìmeasures by Parties affecting trade in servicesî include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally;
(iii) the presence, including commercial presence, of persons of a
Party for the supply of a service in the territory of the other Party;
(j) ìmonopoly supplier of a serviceî 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;
(k) ìnatural person of a Partyî means a natural person who resides in the territory of the Party or elsewhere and who under the law of that Party:
(i) is a national of that Party; or
(ii) has the right of permanent residence in that Party;
(l) ìnew measuresî means measures adopted after the date of entry into force of this Agreement;
(m) ìpersonî means either a natural person or a legal person;
(n) ìservicesî means all services including new and variant services in any sector except services supplied in the exercise of governmental authority;
(o) ìservice consumerî means any person that receives or uses a service;
(p) ìservice of the other Partyî means a service which is supplied:
44
(i) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(q) ìservice supplierî means any person that supplies a service;1
(r) ìsupply of a serviceî includes the production, distribution, marketing, sale and delivery of a service; and
(s) ìtrade in servicesî is defined as the supply of a service:
(i) from the territory of a Party into the territory of the other Party
(ìcross-borderî);
(ii) in the territory of a Party to the service consumer of the other
Party (ìconsumption abroadî);
(iii) by a service supplier of a Party, through commercial presence
in the territory of the other Party (ìcommercial presenceî);
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party (ìpresence of natural personsî).
ARTICLE 2
Scope
(a) subsidies or grants 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; or
1 Where the service is not supplied directly by a legal person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the legal person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Agreement. 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.
45
(b) a service supplied in the exercise of governmental authority within the territory of each respective Party.
regulate the entry of natural persons of the other Party into, or their temporary stay in,
its territory, including those measures necessary to protect the integrity of, and to
ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing
to the other Party under the terms of this Chapter.
ARTICLE 3
Market Access
Neither Party shall maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory,:2
(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
2 Subject to the reservations that a Party makes in respect of market access pursuant to Article 5
(Reservations), where the cross-border movement of capital is an essential part of a service supplied
through the mode of supply referred to in Article 1(s)(i), that Party is hereby committed to allow such movement of capital. Subject to the reservations that a Party makes in respect of market access pursuant to Article 5 (Reservations), where a service is supplied through the mode of supply referred to
in Article 1(s)(iii) that Party is hereby committed to allow related transfers of capital into its territory.
3 Article 3(c) does not cover measures of a Party which limit inputs for the supply of services.
46
percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
ARTICLE 4
National Treatment
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.
ARTICLE 5
Reservations
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central or regional level, as set out in Annex 4-I; or
(ii) the local level; or
(b) the continuation or prompt renewal of any non-conforming measure referred to in Article 5.1(a).
(a) any existing non-conforming measure that is maintained by a Party as set out in Annex 4-I; or
47
(b) any existing or new measure that a Party adopts or maintains with respect to sectors, subsectors or activities as set out in Annex 4-II.
(a) with respect to Annex 4-I, the non-conforming measure to which the reservation applies; and
(b) with respect to Annex 4-II, the sectors, subsectors or activities to which the reservation applies.
ARTICLE 6
Transitional Provisions on Regional Government Measures
in Annexes 4-I and 4-II.
of the Parties is required to preserve this balance. Article 7 (Modification or Addition
of Reservations) and Chapter 16 (Dispute Settlement) shall not apply to any such adjustments. The Parties shall not apply any measure affecting trade in services at the regional level in such a manner as would improve their negotiating position and leverage.
ARTICLE 7
Modification or Addition of Reservations
to arbitration in accordance with Chapter 16 (Dispute Settlement).
48
ARTICLE 8
Additional Commitments
III of this Agreement with respect to measures affecting trade in services not covered
by Articles 3 (Market Access) and 4 (National Treatment), including those regarding qualifications, standards or licensing matters and any other matters as may be mutually agreed.
ARTICLE 9
Transparency
on all such matters.
ARTICLE 10
Disclosure of Confidential Information
Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
49
ARTICLE 11
Domestic Regulation
in services are administered in a reasonable, objective and impartial manner.
or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
of the Party shall provide, without undue delay, information concerning the status of
the application.
(a) based on objective and transparent criteria, such as competence and
the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
(a) does not comply with the criteria outlined in Articles 11.5(a), 11.5(b)
or 11.5(c); and
50
(b) could not reasonably have been expected of that Party at the time the obligations were undertaken.
its competent authorities shall endeavour to:
(a) make publicly available:
(i) information on requirements and procedures to obtain, renew or retain any licences or professional qualifications; and
(ii) information on technical standards;
(b) explain, on request, the policy rationale of a measure, particularly of a new measure; and
(c) provide opportunity for comment, and give consideration to such comments, before their adoption, when introducing measures which significantly affect trade in services.
ARTICLE 12
Monopoly and Exclusive Service Suppliers
(National Treatment).
4 (National Treatment), 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.
4 The term ìrelevant international organisationsî refers to international bodies whose membership is open to relevant bodies of both Parties.
51
suppliers, where a Party, formally or in effect, (a) authorises or establishes a small number of service suppliers and (b) substantially prevents competition among those suppliers in its territory.
ARTICLE 13
Safeguard Measures
Neither Party shall take safeguard action against services and service suppliers
of the other Party from the date of entry into force of this Agreement. Neither Party shall initiate or continue any safeguard investigations in respect of services and service suppliers of the other Party.
ARTICLE 14
Payments and Transfers
members of the International Monetary Fund under the Articles of Agreement of the
Fund, including the use of exchange actions which are in conformity with the Articles
of Agreement, provided that a Party shall not impose restrictions on any capital
transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 15 (Restrictions to Safeguard the Balance of
Payments) or at the request of the Fund.
ARTICLE 15
Restrictions to Safeguard the Balance of Payments
or threat thereof, a Party may adopt or maintain restrictions on trade in services in respect of which it has obligations under Articles 3 (Market Access) and 4 (National Treatment), including on payments or transfers for transactions relating to such obligations. It is recognized that particular pressures on the balance of payments of a Party in the process of economic development 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.
(a) be consistent with the Articles of Agreement of the International
Monetary Fund;
52
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in
Article 15.1;
(d) be temporary and be phased out progressively as the situation specified
in Article 15.1 improves;
(e) be applied on a national treatment basis and such that the other Party is treated no less favourably than any non-Party.
consultations with the other Party in order to review the restrictions adopted by it.
ARTICLE 16
Government Procurement
Articles 3 (Market Access) and 4 (National Treatment) shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.
ARTICLE 17
Denial of Benefit
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party where the Party establishes that the service supplier is owned or controlled by persons of a non-Party and that it has no substantive business operations in the territory of the other Party.
ARTICLE 18
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in services,
nothing in this Chapter shall be construed to prevent the adoption or enforcement by a
Party of measures:
53
(a) necessary to protect public morals or to maintain public order;5
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Chapter 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;
(iii) safety;
(d) inconsistent with Article 4 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective 6 imposition or collection of direct taxes in respect of services or service suppliers of the other Party.
5 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
6 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 Partyís territory; or
(ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Party's territory; or
(iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; or
(iv) apply to consumers of services supplied in or from the territory of the other Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Party's territory; or
(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 Party's tax base.
Tax terms or concepts in Article 18(d) and in this footnote are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the Party taking the measure.
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ARTICLE 19
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; or
(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;
(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 20
Review of Commitments
4-II unilaterally, it shall give positive consideration to a request by the other Party for
the incorporation herein of the unilateral liberalisation. Any such incorporation should maintain the overall balance of commitments undertaken by each Party under this Agreement.
in competition with one or more service suppliers, the Party concerned may modify or add to its reservations in respect of that service. At the request of the other Party, the
Party concerned shall enter into consultations with a view to ensuring the maintenance
55
of the overall balance of commitments undertaken by each Party under this
Agreement.
ARTICLE 21
Review of Subsidies
ARTICLE 22
Air Transport Services
(a) "aircraft repair and maintenance services" mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(b) ìair transportî means the public carriage by aircraft of passengers, baggage, cargo or mail, separately or in combination, for remuneration or hire; and
(c) "computer reservation system (CRS) services" mean services provided
by computerised systems that contain information about air carriers' schedules,
availability, fares and fare rules, through which reservations can be made or tickets may be issued.
(a) rights in relation to air transport, however granted; or
(b) services directly related to the exercise of rights in relation to air transport, except as provided in paragraph 3 of this Article.
(a) aircraft repair and maintenance services; and
(b) computer reservation system services (CRS).
56
Provisions), or at any other time agreed between the Parties, with a view to including
these developments in this Agreement.
GATS, including the Annex on Air Transport Services.
ARTICLE 23
Recognition
57
ARTICLE 1
Definitions
(a) ìenterpriseî means any corporation, company, association, partnership, trust, joint venture, sole-proprietorship or other legally recognised entity that is duly incorporated, constituted, set up, or otherwise duly organised under the law of a Party, including branches, regardless of whether or not the entity is organised for pecuniary gain, privately or otherwise owned, or organised with limited or unlimited liability;
(b) ìfreely useable currencyî means a currency widely used to make payments for international transactions as classified by the International Monetary Fund;
(c) ìinvestmentî means every kind of asset, owned or controlled, directly
or indirectly, by an investor, including but not limited to the following:
(i) movable and immovable property and other property rights such as mortgages, liens or pledges;
(ii) shares, stocks, bonds and debentures of an enterprise;
(iii) claims to money or to any contractual performance related to a business and having an economic value;
(iv) intellectual property rights and goodwill; and
(v) business concessions or similar rights required to conduct economic activity and having economic value conferred by law or under a contract, including any concession to search for, cultivate, extract or exploit natural resources;
(d) ìinvestorî means:
(i) an enterprise of a Party; or
(ii) a natural person who resides in the territory of a Party or elsewhere and who under the law of that Party:
(A) is a citizen of that Party; or
(B) has the right of permanent residence in that Party;
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that has made, is in the process of making, or is seeking to make an investment;
(e) ìmeasureî means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form, and includes measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities; and
(f) ìreturnî means an amount yielded by or derived from an investment, including profits, dividends, interest, capital gains, royalty payments, payments in connection with intellectual property rights, and all other lawful income.
notwithstanding the fact that the investment was made through an enterprise duly
incorporated, constituted, set up or otherwise duly organised under the law of a non- Party.
ARTICLE 2
Scope of Application
(a) subsidies or grants 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 investors and investments; or
(b) a natural person who is a permanent resident but not a citizen of a
Party where:
(i) the provisions of an investment protection agreement between the other Party and the country of which the person is a citizen have already been invoked in respect of the same matter; or
(ii) the person is a citizen of the other Party.
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to privatise.
ARTICLE 3
National Treatment
Each Party shall accord to investors of the other Party, and investments of investors of the other Party, in relation to the establishment, acquisition, expansion, management, conduct, operation, liquidation, sale, transfer (or other disposition) and
expropriation (including any compensation) of investments in its territory, treatment
that is no less favourable than that which it accords in like circumstances to its own investors and investments.
ARTICLE 4
Transparency
Each Party shall promptly make public its laws, regulations and investment policies, and any amendments thereto, of general application that pertain to or affect investments in its territory by investors of the other Party.
ARTICLE 5
Reservations
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central or regional level, as set out in Annex 4-I; or
(ii) the local level; or
(b) the continuation or prompt renewal of any non-conforming measure referred to in Article 5.1(a)
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(a) with respect to Annex 4-I, the non-conforming measure to which the reservation applies; and
(b) with respect to Annex 4-II, the sectors, subsectors or activities to which the reservation applies.
ARTICLE 6
Transitional Provision on Regional Government Measures
Party at the regional level until the first review of this Agreement under Article 3
(Review) of Chapter 17 (Final Provisions), when modifications or additions may be incorporated into the reservations in Annex 4-I and Annex 4-II to extend the coverage
of Article 3 (National Treatment) to these measures. Following the first review, Article 3 (National Treatment) shall apply, at the regional level, unless the non-
conforming measures maintained at the regional level are covered by the reservations
in Annexes 4-I and 4-II by a Party.
of the Parties is required to preserve this balance. Article 7 (Modification or Addition
of Reservations) and Chapter 16 (Dispute Settlement) shall not apply to any such adjustments. The Parties shall not apply any measure affecting investment at the regional level in such a manner as would improve their negotiating position and leverage.
ARTICLE 7
Modification or Addition of Reservations
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sectors, subsectors or activities to its reservations set out in Annex 4-II. At the request
of the other Party, it shall hold consultations with a view to reaching agreement on
any necessary adjustment required to maintain the overall balance of commitments undertaken by each Party under this Agreement. If agreement is not reached between the Parties on any necessary adjustment, the matter may be referred to arbitration in accordance with Chapter 16 (Dispute Settlement).
ARTICLE 8
Additional Commitments
III of this Agreement with respect to investment matters not covered by Article 3
(National Treatment).
ARTICLE 9
Expropriation and Nationalisation
is taken on a non-discriminatory basis, for a public purpose, in accordance with due process of law, and upon payment of compensation in accordance with this Article.
of the expropriated investment immediately before the expropriation or impending
expropriation became public knowledge. Compensation shall carry an appropriate interest, taking into account the length of time from the time of expropriation until the time of payment. Such compensation shall be effectively realisable, freely transferable
in accordance with Article 11 (Transfers) and made without delay.
expropriating Party on the date of entry into force of this Agreement, shall be for a
purpose and upon payment of compensation in accordance with the aforesaid legislation and any subsequent amendments thereto relating to the amount of compensation where such amendments follow the general trends in the market value
of the land.
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ARTICLE 10
Compensation for Losses
A Party shall accord to investors of the other Party whose investments in the territory of the former Party have suffered losses owing to war or other armed conflict
or civil strife in that territory, treatment, as regards restitution, indemnification,
compensation, or other settlement or measures it adopts or maintains relating to such losses, no less favourable than that which it accords to its own investors and investors
of any non-Party.
ARTICLE 11
Transfers
of the other Party related to an investment in its territory to be transferred freely and without undue delay. Such funds include the following:
(a) the initial capital plus any additional capital used to maintain or expand the investment;
(b) returns;
(c) proceeds from the sale or partial sale or liquidation of the investment;
(d) loan payments in connection with the investment;
(e) unspent earnings and other remuneration of personnel engaged from abroad in connection with that investment; and
(f) compensation paid pursuant to Article 10 (Compensation for Losses).
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, futures, options, or derivatives;
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(c) criminal or penal offences, and the recovery of proceeds of crime;
(d) ensuring the satisfaction of judgements, orders or awards in adjudicatory proceedings; or
(e) social security, public retirement or compulsory savings schemes.
of the International Monetary Fund under the Articles of Agreement of the Fund,
including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 12 (Restrictions to Safeguard the Balance of
Payments) or at the request of the Fund.
ARTICLE 12
Restrictions to Safeguard the Balance of Payments
or threat thereof, a Party may adopt or maintain restrictions on payments or transfers related to investments. It is recognized that particular pressures on the balance of payments of a Party in the process of economic development 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.
(a) be consistent with the Articles of Agreement of the International
Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in
Article 12.1;
(d) be temporary and be phased out progressively as the situation specified
in Article 12.1 improves;
(e) be applied on a national treatment basis and such that the other Party is treated no less favourably than any non-Party.
consultations with the other Party in order to review the restrictions adopted by it.
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ARTICLE 13
Subrogation
or claim of the investor.
ARTICLE 14
Settlement of Disputes between a Party and an Investor of the other Party
consultations and negotiations.
within 6 months from the date of a request for consultations and negotiations, then unless the disputing investor and the disputing Party agree otherwise or either of them has already submitted the dispute to the courts or administrative tribunals of the disputing Party (excluding proceedings for interim measures of protection referred to
in Article 14.5), the dispute may be submitted by either party to the dispute to:
(a) the courts or administrative tribunals of the disputing Party;
(b) the International Centre for Settlement of Investment Disputes (ICSID) for conciliation or arbitration pursuant to Articles 28 or 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, done at Washington on 18 March 1965; or
(c) arbitration under the rules of the United Nations Commission on
International Trade Law (UNCITRAL).
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(a) the submission of the dispute to such conciliation or arbitration taking place within three years of the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of an obligation under this Chapter causing loss or damage to the investor or its investment; and
(b) the disputing investor providing written notice, which shall be submitted at least 30 days before the claim is submitted, to the disputing Party
of his or her intent to submit the dispute to such conciliation or arbitration and which:
(i) nominates either Article 14.3(b) or Article 14.3(c) as the forum for dispute settlement (and, in the case of Article 14.3(b), nominates whether conciliation or arbitration is being sought);
(ii) waives its right to initiate or continue any proceedings
(excluding proceedings for interim measures of protection referred to in Article 14.5) before any of the other dispute settlement fora referred to in Article 14.3 in relation to the matter under dispute; and
(iii) briefly summarises the alleged breach of the disputing Party under this Chapter (including the articles alleged to have been breached) and the loss or damage allegedly caused to the investor or its investment.
in respect of a dispute which one of its investors and the other Party shall have consented to submit or have submitted to conciliation or arbitration under this Article, unless such other Party has failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement
of the dispute.
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ARTICLE 15
Review of Commitments
II unilaterally, it shall give positive consideration to a request by the other Party for the incorporation herein of the unilateral liberalisation. Any such incorporation
should maintain the overall balance of commitments undertaken by each Party under this Agreement.
ARTICLE 16
Review of Subsidies
ARTICLE 17
Government Procurement
Article 3 (National Treatment) shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of goods and services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the supply of services for commercial sale.
ARTICLE 18
Denial of Benefits
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such Party and to investments of such an investor where the Party establishes that the enterprise is owned or controlled by persons of a non-Party and has no substantive business
operations in the territory of the other Party.
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ARTICLE 19
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on investments in
the territory of a Party by investors of the other Party, nothing in this Chapter shall be
construed to prevent the adoption or enforcement by a Party of measures:
(a) necessary to protect public morals or to maintain public order;1
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on a contract;
(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;
(iii) safety;
(d) imposed for the protection of national treasures of artistic, historic or archaeological value;
(e) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
ARTICLE 20
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; or
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
1 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
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(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) taken in time of war or other emergency in international relations;
(iii) relating to the production or supply of arms and ammunition; 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 21
Disclosure of Confidential Information
Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
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ARTICLE 1
Definitions and Scope
(a) ìfinancial serviceî means a service of a financial nature, including insurance, and a service incidental or auxiliary to a service of a financial nature. Financial services shall include the activities as stated in Appendix 1;
(b) ìfinancial service supplierî means any natural or legal person authorised by the law of a Party to supply financial services;
(c) ìnew financial serviceî means a financial service, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory
of a Party but which is supplied in the territory of the other Party; and
(d) ìpublic entityî means:
(i) a government, a central bank or a monetary authority, of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
ìa service supplied in the exercise of governmental authorityî means the following:
(a) activities conducted by a central bank or monetary authority or by any other public entity, including the management of official foreign reserves, in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; and
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(c) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.
be conducted by its financial service suppliers in competition with a public entity or a
financial service supplier, measures affecting such activities shall not be excluded from this Chapter and Chapter 7 (Trade in Services).
ARTICLE 2
New Financial Services
Each Party shall permit a financial service supplier of the other Party established in its territory to supply any new financial service of a type similar to those services that a Party would permit its own financial service suppliers, in like circumstances, to supply under its domestic law. A Party may however determine the institutional and juridical form through which the new financial service may be supplied and may require authorisation for the supply of the service. Where such authorisation is required, a decision shall be made within a reasonable time and the authorisation may only be refused for prudential reasons.
ARTICLE 3
Prudential and Regulatory Supervision
its own like financial service suppliers, or a disguised restriction on trade in services. Each Party shall endeavour to ensure that these measures are not more burdensome
than necessary to achieve their aim.
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ARTICLE 4
Transfers of Information and Processing of Information
Neither Party shall take measures that prevent transfers of information or the processing of financial information, including transfers of data by electronic means,
or that, subject to importation rules consistent with international agreements, prevent transfers of equipment, where such transfers of information, processing of financial
information or transfers of equipment are necessary for the conduct of the ordinary business of a financial service supplier. Nothing in this paragraph restricts the right of
a Party to protect personal data, personal privacy and the confidentiality of individual records and accounts so long as such right is not used to circumvent the provisions of
this Agreement.
ARTICLE 5
Exceptions
For the avoidance of doubt, this Chapter shall be subject to the general and security exceptions listed in Articles 18 and 19 of Chapter 7 (Trade in Services) and Articles 19 and 20 of Chapter 8 (Investment).
ARTICLE 6
Dispute Settlement
Arbitral tribunals agreed between or appointed by the Parties under Chapter 16
(Dispute Settlement) to adjudicate disputes on prudential issues and other financial
matters, and any procedures agreed for good offices, conciliation or mediation on such matters, shall have or provide for the necessary expertise relevant to the specific financial service and dispute.
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APPENDIX 1
Insurance and insurance-related services
(i) Direct insurance (including co-insurance):
(A) life
(B) non-life;
(ii) Reinsurance and retrocession;
(iii) Insurance intermediation, such as brokerage and agency;
(iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.
Banking and other financial services (excluding insurance)
(v) Acceptance of deposits and other repayable funds from the public;
(vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) Financial leasing;
(viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(ix) Guarantees and commitments;
(x) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities;
(F) other negotiable instruments and financial assets, including bullion;
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(xi) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision
of services related to such issues;
(xii) Money broking;
(xiii) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(xiv) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xv) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
(xvi) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (v) through (xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
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ARTICLE 1
Purpose and Definitions
(a) ìend userî means a person (including a service consumer and a service supplier) to whom a public telecommunications network or service is supplied, other than for use in the further supply of a public telecommunications
network or service;
(b) ìessential facilitiesî means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(c) ìfacilities-based suppliersî means suppliers of public telecommunications networks or services that are:
(i) licensed carriers in Australia; or
(ii) facilities-based operators in Singapore;
(d) ìleased circuitsî means telecommunications facilities between two or more designated points which are set aside for the dedicated use of or availability to a particular user;
(e) a ìmajor supplierî is a supplier of public telecommunications networks
or services that has the ability to materially affect the terms of participation
(having regard to price and supply) in the relevant market 1 for public telecommunications networks or services as a result of:
1 For the avoidance of doubt, ìrelevant marketî may refer to a market for the supply of public telecommunications networks or services (or parts thereof) provided by any supplier of public telecommunications networks or services, that give this supplier the ability to materially affect the terms of participation in the market (having regard to price and supply).
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(i) control over essential facilities; or
(ii) use of its position in the market;
(f) ìnetwork elementî means facilities or equipment used in the provision
of a public telecommunications service, including features, functions, and
capabilities that are provided by means of such facilities or equipment, which may include local loops, sub-loops and line sharing;
(g) ìnumber portabilityî means the ability of service consumers of public telecommunications networks or services to retain existing telephone numbers when switching between suppliers of like public telecommunications networks
or services;
(h) ìpublic telecommunications serviceî means any telecommunications service required, explicitly or in effect, by a Party to be offered to the public generally;2
(i) ìpublic telecommunications networkî means the telecommunications infrastructure authorised by a Party to be used to provide public telecommunications services between defined network termination points;
(j) ìregulatorî means any person authorised or designated to have responsibility for the regulation of telecommunications;
(k) ìregulatory decisionsî means decisions by regulators made pursuant to authority conferred under domestic law in relation to:
(i) the making of rules for the telecommunications industry excluding legislation and statutory rules;
(ii) the approval of terms and conditions, standards and codes to apply in the telecommunications industry;
(iii) the adjudication or other resolution of disputes between suppliers of public telecommunications networks or services; and
(iv) licensing;
(l) a ìsupplier of public telecommunications networks or servicesî means
(m) ìtelecommunicationsî means the transmission and reception of signals by any electromagnetic means; and
(n) ìuserî means an end-user or a supplier of public telecommunications network or services.
2 ìPublic telecommunications serviceî includes Internet routing and connectivity services.
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ARTICLE 2
Scope
ARTICLE 3
Access to and Use of Public Telecommunications Networks or Services3
to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders in a timely fashion, on reasonable, transparent, and non-discriminatory terms and conditions, including as set out in Article 3.2 to Article 3.6.4
(a) purchase or lease and attach terminal or other equipment that interfaces with the public telecommunications network and which is necessary to supply
a supplierís services;
(b) provide services to individual or multiple service consumers over any leased or owned circuits;
(c) interconnect leased or owned circuits with public telecommunications
networks or services in the territory or across the borders of that Party or with
circuits leased or owned by another service supplier;
(d) perform switching, signalling, processing and conversion functions;
and
(e) use operating protocols of their choice in the supply of any service, other than as necessary to ensure the availability of telecommunications networks and services to the public generally.
3 For avoidance of doubt, access to unbundled network elements is addressed in Article 9.3.
4 For avoidance of doubt, each Party may fulfil the obligations in this Article by any measure it considers necessary or appropriate, within the context of domestic law and regulation.
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its territory or across its borders and for access to information contained in the databases or otherwise stored in machine-readable form in the territory of either Party.
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of personal data of end users of public telecommunications networks or services
subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
(a) to safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) to protect the technical integrity of public telecommunications networks or services.
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks and services;
(b) requirements, where necessary, for the inter-operability of such services;
(c) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks; or
(d) notification, registration and licensing.
ARTICLE 4
Transparency
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(a) provides suppliers of public telecommunications networks or services
of the other Party who are likely to be affected by regulatory decisions with a
fair and reasonable opportunity to obtain sufficient information to enable them
to form informed views on proposed regulatory decisions and to provide these
views to regulators;
(b) requires regulators to take into account views provided by such suppliers pursuant to Article 4.1(a); and
(c) ensures that regulators make available to such suppliers their regulatory decisions and an explanation of their reasons for those regulatory decisions.
to avoid causing prejudice to the legitimate commercial interests of that supplier,
impose reasonable limitations on the requirement to provide the information referred
to in Article 4.1(a) and Article 4.1(c) provided that such limitations:
(a) are applied only to the extent necessary to protect such commercial interests; and
(b) do not deprive suppliers of public telecommunications networks or services of the other Party of their right under Article 4.1(a) to provide their views to regulators.
(a) all the licensing criteria, any terms and conditions of the licence, and the period of time normally required to reach a decision concerning an application for a licence; and
(b) the terms and conditions of individual licences.
ARTICLE 5
Independent Regulators
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ARTICLE 6
Dispute Settlement and Appeal
or services of the other Party have timely recourse to a regulator to consider and, to the extent provided for in domestic law, to resolve disputes regarding compliance with domestic measures relating to the obligations contained in this Chapter.
administrative authority. Such an appeal shall not constitute grounds for non-
compliance by that supplier with the regulatory decision unless an appropriate authority stays such decision.
(a) suppliers of public telecommunications networks or services of the other Party which are party to the appeal have a fair and reasonable
opportunity to obtain sufficient information to enable them to form informed views on the issues to be determined in the appeal and to provide these views
to the administrative authority;
(b) the administrative authority takes into account views provided by such suppliers pursuant to Article 6.3(a); and
(c) the administrative authority makes available to such suppliers its decision and an explanation of the reasons for its decision.
(a) are applied only to the extent necessary to protect such commercial interests; and
(b) do not deprive suppliers of public telecommunications networks or services of the other Party which are party to an appeal referred to in Article
6.3 of their right under Article 6.3(a) to provide their views to the administrative authority.
5 For the avoidance of doubt, this paragraph does not apply to judicial authorities of either Party.
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ARTICLE 7
General Competitive Safeguards
Partyís sectoral or generic competition regime, as the case may be, and shall include:
(a) anti-competitive horizontal arrangements;
(b) misuse of market power;
(c) anti-competitive vertical arrangements; and
(d) anti-competitive mergers and acquisitions.
ARTICLE 8
Interconnection between Suppliers of Public Telecommunications Networks
Each Party shall maintain appropriate measures to achieve connectivity between public telecommunications networks in order to ensure that end-users of telecommunications services can communicate with each other including, where that Party considers it necessary, by requiring facilities-based suppliers to interconnect with one another.
ARTICLE 9
Additional Obligations Relating to Major Suppliers7
(a) Each Party shall ensure that major suppliers in its territory accord
suppliers of public telecommunications networks or services of the other Party
treatment no less favourable than such major supplier accords to itself, its subsidiaries, its affiliates, or any non-affiliated supplier of public telecommunications networks or services regarding:
6 The maintenance of appropriate measures includes the effective enforcement of such measures.
7 For the avoidance of doubt, the obligations imposed under this Article only apply with respect to those public telecommunications networks or services, or parts thereof, that result in a supplier of public telecommunications networks or services being a major supplier.
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(i) availability, provisioning, rates, 8 or quality of like public telecommunications networks or services; and
(ii) availability of technical interfaces
where such suppliers of public telecommunications networks or services and subsidiaries, affiliates and non-affiliates of the major supplier are in like circumstances.
(a) Each Party shall maintain appropriate measures 9 for the purpose of preventing major suppliers in its territory from engaging in or continuing anti- competitive practices.
(b) The anti-competitive practices referred to in Article 9.2(a) shall include:
(i) engaging in anti-competitive cross-subsidisation;
(ii) using information obtained from competitors with anti- competitive results;
(iii) not making available, on a timely basis, to suppliers of public telecommunications networks or services of the other Party, technical information about essential facilities and commercially relevant information which is necessary for them to provide services; and
(iv) pricing services in a manner that is likely to unreasonably restrict competition, such as predatory pricing.
(a) Each Party shall ensure that major suppliers in its territory provide to
facilities-based suppliers of the other Party access to network elements for the
provision of public telecommunications services at any technically feasible point, on an unbundled basis, in a timely fashion; and on terms, conditions, and cost-oriented rates that are reasonable, transparent, and non-discriminatory.
(b) Each Party may determine, in accordance with its domestic laws and regulations, which network elements it requires major suppliers in its territory
to provide access to in accordance with Article 9.3(a) on the basis of the
8 The costs incurred by a major supplier in supplying public telecommunications networks or services
to itself may be determined in accordance with any cost-oriented costing methodology considered appropriate by a Party. Treatment that is no less favourable regarding rates for like public telecommunications networks or services may take into account the legitimate transaction costs which the major supplier incurs in supplying such public telecommunications networks or services to suppliers of public telecommunications networks or services of the other Party.
9 The maintenance of appropriate measures includes the effective enforcement of such measures.
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technical feasibility of unbundling and the state of competition in the relevant market.
(a) Each Party shall ensure that major suppliers in its territory provide to
facilities-based suppliers of the other Party physical co-location of equipment necessary for interconnection or access to unbundled network elements in a
timely fashion and on terms, conditions, and cost-oriented rates that are reasonable, transparent, and non-discriminatory.
(b) Where physical co-location under Article 9.4(a) is not practical for technical reasons or because of space limitations, each Party shall ensure that major suppliers co-operate with facilities-based suppliers to find and implement the most feasible alternative solution in a timely fashion and on terms, conditions, and cost-oriented rates that are reasonable, transparent, and non-discriminatory. Such solutions may include:
(i) permitting facilities-based suppliers to locate equipment in a nearby building and to connect such equipment to the major supplierís network;
(ii) conditioning additional equipment space;
(iii) optimizing the use of existing space; or
(iv) finding adjacent space.
(c) Each Party may determine in accordance with its domestic laws and regulations the locations at which it requires major suppliers in its territory to provide co-location under Article 9.4(a) on the basis of the state of competition in the relevant market.
(a) Each Party shall ensure that major suppliers in its territory:
(i) allow suppliers of public telecommunications networks or services of the other Party to purchase at reasonable rates, for the purpose of resale, specific public telecommunications services supplied by the major suppliers at retail that are designated by the first Party; and
(ii) do not impose unreasonable or discriminatory conditions or limitations on the resale of such public telecommunications services.
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(a) Each Party shall ensure that major suppliers in its territory provide access to poles, ducts, conduits, or any other structures deemed necessary by the Party, which are owned or controlled by such major suppliers to facilities- based suppliers of the other Party:
(i) in a timely fashion; and
(ii) on terms, conditions, and cost-oriented rates that are reasonable, transparent, and non-discriminatory.
(b) Each Party may determine in accordance with its domestic laws and regulations the poles, ducts, conduits or other structures to which it requires major suppliers in its territory to provide access under Article 9.6(a) on the basis of the state of competition in the relevant market.
(a) Each Party shall ensure that major suppliers in its territory provide interconnection to facilities-based suppliers of the other Party:
(i) at any technically feasible point in the major supplierís network;
(ii) under non-discriminatory terms, conditions (including technical standards and specifications) and rates;11
(ii) of a quality no less favourable than that provided by such major supplier for its own like services or for like services of non-affiliated service suppliers or for its subsidiaries or other affiliates;
(iv) in a timely fashion, on terms, conditions (including technical standards and specifications) and cost-oriented rates 12 that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network
components or facilities that it does not require for the service to be provided; and
(v) upon request, at points in addition to the network termination points offered to the majority of facilities-based suppliers, subject to charges that reflect the cost of construction of necessary additional facilities.
10 Australia's interconnection regime provides access on terms and conditions which are fair and reasonable to all parties and which do not unfairly discriminate between users. Access rights are guaranteed by legislation and the terms and conditions of access are established primarily through processes of commercial negotiation or by reference to access undertakings given by suppliers of
public telecommunications networks or services which may draw upon an industry code of practice.
Any code of practice and each supplier's undertaking will be subject to approval by the regulator.
11 In Australia, the rate at which interconnection is provided is determined by negotiation. Both negotiating parties have recourse to the regulator which will make a decision based on transparent criteria to ensure that rates are fair and reasonable in the circumstances.
12 The regulator may resolve any dispute on what costs are relevant in determining rates.
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(b) Each Party shall ensure that suppliers of public telecommunications networks or services of the other Party may interconnect with major suppliers
in its territory pursuant to at least one of the following options:
(i) a publicly available reference interconnection offer;
(ii) any existing interconnection agreement between the major supplier and any similarly situated supplier of public telecommunications networks or services;
(iii) an individualised agreement between the major supplier and the supplier of public telecommunications networks or services that seeks
to interconnect with it; or
(iv) binding arbitration.
(c) Each Party shall ensure that the applicable procedures for interconnection negotiations with major suppliers in its territory are made publicly available.
(d) Each Party shall ensure that major suppliers in its territory make publicly available either their interconnection agreements or a reference interconnection offer.
(a) When facilities-based suppliers are unable to resolve disputes
regarding the terms, conditions and rates on which interconnection is to be provided by a major supplier, they shall have recourse to the regulator, which shall aim to resolve the disputes within 180 days of the referral to it, provided that the resolution of complex disputes may take longer than 180 days.
(b) Where the regulator is unable to resolve the disputes referred to in Article 9.8(a) within 180 days, each Party shall ensure that the regulator endeavours to provide interim determinations on the disputes where necessary
to ensure that facilities-based suppliers of the other Party are able to interconnect with a major supplier.
ARTICLE 10
Number Portability
Each Party shall ensure that suppliers of public telecommunications services in
its territory provide number portability, for those services designated by that Party, to the extent technically feasible, on a timely basis and on reasonable terms and conditions.
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ARTICLE 11
Access to Buildings13
Each Party shall ensure that facilities-based suppliers may install, maintain and have access to their equipment in buildings or on land that the Party considers is necessary to enable public telecommunications services to be supplied to end users who are customers of the facilities-based supplier.
ARTICLE 12
Allocation and Use of Scarce Resources14
Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, timely, transparent and non-discriminatory manner. The current state of allocated frequency bands shall be made publicly available, but detailed identification of frequencies allocated for specific government use shall not be required.
ARTICLE 13
Industry Participation
(a) facilitate the involvement of suppliers of public telecommunications
networks or services of the other Party operating in its territory in the
development of industry standards and, where it considers appropriate, in the regulation of the telecommunications industry; and
(b) encourage suppliers of public telecommunications networks or services
of the other Party operating in its territory to provide feedback to regulators on the regulation of the telecommunications industry.
ARTICLE 14
Enforcement
13 To the extent of any inconsistency between this Article and Article 9, the latter shall prevail.
14 Decisions on the allocation and assignment of spectrum and frequency management are not measures that are per se inconsistent with Article 3 (Market Access) of Chapter 7 (Trade in Services). Accordingly,
each Party retains the ability to exercise its spectrum and frequency management policies, which may affect the number of service suppliers, provided that this is done in a manner that is consistent with the provisions of this Agreement. The Parties also retain the right to allocate frequency bands taking into account existing and future needs.
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Each Party shall adopt or maintain timely, proportionate and effective sanctions for the purpose of enforcing domestic measures relating to the obligations contained in this Chapter. Such sanctions may include financial penalties, injunctions, orders to cease and desist (on an interim or final basis), and/or the ability to suspend, modify or revoke licences.
ARTICLE 15
Exceptions
For the avoidance of doubt, this Chapter shall be subject to the general and security exceptions listed in Articles 18 and 19 of Chapter 7 (Trade in Services) and Articles 19 and 20 of Chapter 8 (Investment).
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ARTICLE 1
Purpose
The purposes of this Chapter are to:
(a) provide for rights and obligations additional to those set out in
Chapters 7 (Trade in Services) and 8 (Investment) in relation to the movement
of natural persons between the Parties; and
(b) enhance the mobility of business persons of either Party engaged in the conduct of trade and investment between the Parties, by facilitating temporary business entry and establishing streamlined, transparent immigration clearance procedures for business persons.
ARTICLE 2
Scope and Definitions
a Party into the territory of the other Party where such persons are:
(a) service suppliers of the first Party;
(b) service sellers of the first Party;
(c) investors of the first Party in respect of an investment of that investor
in the territory of the other Party; or
(d) employed by an investor of the first Party in respect of an investment
of that investor in the territory of the other Party.
(a) ìbusiness visitorsî means natural persons of either Party who are:
(i) service sellers;
(ii) short-term service suppliers;
(iii) investors of a Party or employees of an investor (who are managers, executives or specialists as defined under Article 2.2(c) seeking temporary entry to establish an investment; or
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(iv) seeking temporary entry for the purposes of negotiating the sale
of goods where such negotiations do not involve direct sales to the
general public;
(b) ìimmigration formalityî means a visa, employment pass, or other document or electronic authority granting a natural person of one Party the right to reside or work in the territory of the other Party;
(c) ìintra-corporate transfereeî means an employee of a service supplier, investor or enterprise of a Party established in the territory of the other Party through a branch, subsidiary or affiliate, who has been so employed for a period of not less than one year immediately preceding the date of the application for temporary entry, and who is:
(i) a manager ñ a business person within an organisation who primarily directs the organisation or a department or sub-division of the organisation, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire
or take other personnel actions (such as promotion or leave authorisation), and exercises discretionary authority over day-to-day operations. This does not include a first-line supervisor, unless the employees supervised are professionals, nor does this include an employee who primarily performs tasks necessary for the provision of the service or operation of an investment;
(ii) an executive ñ a business person within an organisation who primarily directs the management of the organisation, exercises wide latitude in decision-making, and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the business. An executive would not directly perform tasks related to the actual provision of the service or the operation of an investment; or
(iii) a specialist ñ a business person within an organisation who possesses knowledge at an advanced level of expertise and who possesses proprietary knowledge of the organisationís service, research equipment, techniques, or management (A specialist may include, but
is not limited to, members of a licensed profession.);
(d) ìservice sellerî means a natural person of a Party who is a sales representative of a service supplier of that Party and is seeking temporary
entry to the other Party for the purpose of negotiating the sale of services for
that service supplier, where such a representative will not be engaged in making direct sales to the general public or in supplying services directly;
(e) ìshort-term service suppliersî means persons who:
(i) are employees of a service supplier or an enterprise of a Party not having a commercial presence or investment in the other, which has concluded a service contract with a service supplier or an
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enterprise engaged in substantive business operations in the other Party;
and
(ii) have been employees of the service supplier or enterprise for a time period of not less than one year immediately preceding an application for admission for temporary entry; and
(iii) are managers, executives or specialists as defined under Article
2.2(c) and
(iv) are seeking temporary entry to the other Party for the purpose
of providing a service as a professional in the following service sectors
on behalf of the service supplier or enterprise which employs them:
(A) professional services;
(B) computer and related services;
(C) telecommunication services; or
(D) financial services; and
(v) satisfy any other requirements under the domestic laws and regulations of the other Party to provide such services in the territory
of that Party; and
(f) ìtemporary entryî means entry by a business visitor or an intra- corporate transferee, as the case may be, without the intent to establish permanent residence and for the purpose of engaging in activities which are clearly related to their respective business purposes. Additionally, in the case
of a business visitor, the salaries of and any related payments to such a visitor
should be paid entirely by the service supplier or enterprise which employs
that visitor in the visitorís home country.
ARTICLE 3
Short-Term Temporary Entry
A Party shall, upon application by a business visitor of the other Party who otherwise meets its criteria for the grant of an immigration formality, grant that business visitor, through the issue of a single immigration formality, the right to
temporary entry in the granting Party's territory for a period of up to three months.
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ARTICLE 4
Long-Term Temporary Entry
A Party shall grant temporary entry to an intra-corporate transferee of the other Party who otherwise meets its criteria for the grant of an immigration formality unless there has been a breach of any of the conditions governing temporary entry, or
an application for an extension of an immigration formality has been refused on such
grounds of national security or public order by the granting Party as it deems fit:
(a) in the case of Singapore, for an initial period of up to two years which may be extended for periods of up to three years at a time for a total term not exceeding 14 years; and
(b) in the case of Australia, for an initial period of up to four years which may be extended for further periods of up to four years at a time for a total term not exceeding 14 years.
ARTICLE 5
Provision of Information
A Party shall:
(a) publish or otherwise make available to the other Party such information as will enable the other Party to become acquainted with its
measures relating to this Chapter; and
(b) no later than six months after the date of entry into force of this Agreement, prepare, publish or otherwise make available in its own territory, and in the territory of the other Party, explanatory material regarding the requirements for temporary entry under this Chapter in such a manner as will enable business persons of the other Party to become acquainted with them.
ARTICLE 6
Dispute Settlement
regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) its natural persons affected have exhausted the available domestic administrative remedies regarding the particular matter.
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within one year of the institution of proceedings for domestic administrative remedies, including proceedings by way of review, and the failure to issue a determination is not attributable to delays caused by the natural person.
ARTICLE 7
Immigration Measures
Nothing in this Chapter shall prevent a Party from applying measures to
regulate the entry of natural persons of the other Party into, or their temporary stay in,
its territory, including those measures necessary to protect the integrity of, and to
ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing
to the other Party under the terms of this Chapter.
ARTICLE 8
Expeditious Application Procedures
A Party shall process expeditiously applications for immigration formalities from natural persons of the other Party, including further immigration formality requests or extensions thereof, particularly applications from members of professions for which mutual recognition arrangements have been concluded.
ARTICLE 9
Notification of Outcome of Application
A Party shall notify the applicants for temporary entry, either directly or through their prospective employers, of the outcome of their applications, including the period of stay and other conditions.
ARTICLE 10
Online Lodgement and Processing
As soon as possible after the date of entry into force of this Agreement, Parties shall provide facilities for online lodgement and processing:
(a) in the case of Australia, of immigration formalities; and
(b) in the case of Singapore, of employment passes which shall be applied for by the prospective employers.
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ARTICLE 11
Resolution of Problems
The relevant authorities of both Parties shall endeavour to favourably resolve any specific or general problems (within the framework of their domestic laws, regulations and other similar measures governing the temporary entry of natural persons) which may arise from the implementation and administration of this Chapter.
ARTICLE 12
Labour Market Testing
Neither Party shall require labour market testing, labour certification tests or other procedures of similar effect as a condition for temporary entry in respect of natural persons on whom the benefits of this Chapter are conferred.
ARTICLE 13
Immigration Formality Requirements
ARTICLE 14
Inclusion of Permanent Residents
A Party shall grant the benefits of this Chapter, other than those accorded by Article 13 (Immigration Formality Requirements), to natural persons who have the right of permanent residence in the territory of the other Party, provided that these natural persons satisfy all the administrative, legal, repatriation and other requirements as may be imposed by the granting Party.
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ARTICLE 15
Employment of Spouses and Dependants
For natural persons who have been granted the right to long-term temporary entry and who have been allowed to bring in their spouses or dependants, a Party shall, upon application, grant the accompanying spouses or dependants the right to work as managers, executives or specialists (as defined in Article 2.2(c)(i)-(iii)), or as office administrators in its territory, subject to the relevant licensing, administrative and registration requirements of the granting Party.
ARTICLE 16
Reservations
The commitments made by each Party under this Chapter shall be subject to any reservations it has taken in its Annex 4-I (Reservations to Chapter 7 (Trade in Services) and Chapter 8 (Investment)) and Annex 4-II (Reservations to Chapter 7
(Trade in Services) and Chapter 8 (Investment)).
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ARTICLE 1
Purpose and Definitions
of this Agreement through the promotion of fair competition and the curtailment of anti-competitive practices.
(a) anti-competitive horizontal arrangements between competitors;
(b) misuse of market power, including predatory pricing by businesses;
(c) anti-competitive vertical arrangements between businesses; and
(d) anti-competitive mergers and acquisitions.
ARTICLE 2
Promotion of Competition
in its territory, adopting and enforcing such means or measures as it deems appropriate and effective to counter such practices.
ARTICLE 3
Application of Competition Laws
enforcement actions taken pursuant to those measures, shall be consistent with the principles of transparency, timeliness, non-discrimination and procedural fairness.
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ARTICLE 4
Competitive Neutrality
in their business activities simply because they are government owned.
ARTICLE 5
Exemptions
Either Party may exempt specific measures or sectors from this Chapter, provided that such exemptions are transparent and are undertaken on the grounds of public policy or public interest.
ARTICLE 6
Consultation and Review
to ensure the comprehensive protection in their respective territories of the legitimate commercial interests of businesses of the other Party.
person without the written consent of the Party which provided such information or
documents. Where the disclosure of such information or documents is necessary to
comply with the domestic legal requirements of a Party, that Party shall notify the
other Party before such disclosure is made.
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ARTICLE 7
Transparency
The Parties shall publish or otherwise make publicly available their laws addressing fair competition.
ARTICLE 8
General
this Agreement for any issue arising from or relating to this Chapter.
Chapter and any provision contained in any other Chapter of this Agreement, the
latter shall prevail to the extent of such inconsistency or conflict.
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ARTICLE 1
Purpose and Definitions
(a) "intellectual property rights" refers to copyright and related rights; rights in trade marks, geographical indications, industrial designs, patents, and layout-designs (topographies) of integrated circuits; rights in plant varieties; and rights in undisclosed information; as defined and described in the WTO TRIPS Agreement;
(b) "WIPO" means the World Intellectual Property Organisation; and
(c) "WTO TRIPS Agreement" means the WTO Agreement on Trade- Related Aspects of Intellectual Property Rights.
ARTICLE 2
Adherence to International Instruments
to, or ratification of, that Treaty.
apply those provisions in their respective territories.
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ARTICLE 3
Storage of Intellectual Property in Electronic Media
Copies of copyright material to which the right of reproduction applies shall include electronic copies of works, sound recordings, and cinematographic films. This
is subject to limitations or exceptions as permitted under the laws of the Parties.
ARTICLE 4
Measures to Prevent the Export of Goods that Infringe Copyright or Trade Marks
Each Party, on receipt of information or complaints, shall take measures to prevent the export of goods that infringe copyright or trade marks, in accordance with
its laws, rules, regulations, directives or policies.
ARTICLE 5
Cooperation on Enforcement
The Parties agree to cooperate with a view to eliminating trade in goods infringing intellectual property rights, subject to their respective laws, rules, regulations, directives or policies. Such cooperation shall include:
(a) the notification of contact points for the enforcement of intellectual
property rights;
(b) the exchange, between respective agencies responsible for the enforcement of intellectual property rights, of information concerning infringement of intellectual property rights;
(c) policy dialogue on initiatives for the enforcement of intellectual property rights in multilateral and regional fora; and
(d) such other activities and initiatives for the enforcement of intellectual property rights as may be mutually agreed between the Parties.
ARTICLE 6
Cooperation on Education and Exchange of Information on Protection, Management and Exploitation of Intellectual Property Rights
The Parties, through their competent agencies, agree to:
(a) exchange information and material on programmes pertaining to intellectual property rights education and awareness, and to commercialisation
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of intellectual property, to the extent permissible under their respective laws, rules, regulations and directives; and
(b) encourage and facilitate the development of contacts and cooperation between their respective government agencies, educational institutions, organisations and other entities in the field of intellectual property rights protection and development, including in the education and training of patent agents.
ARTICLE 7
Settlement of Disputes relating to Domain Names and Trade Marks
Both Parties shall continue to monitor and support, where appropriate, endeavours to develop international policy or guidelines governing the resolution of disputes relating to domain names and trade marks.
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Preamble
The Parties recognise the economic growth and opportunities provided by electronic commerce, the importance of avoiding barriers to its use and development, and the applicability of relevant WTO rules.
ARTICLE 1
Purposes and Definitions
Parties and to promote the wider use of electronic commerce globally.
(a) ìcustoms dutiesî has the same meaning as Article 1(a) of Chapter 2
(Trade in Goods);
(b) ìelectronic versionî of a document means a document in an electronic format prescribed by a Party, including a document sent by facsimile transmission; and
(c) ìtrade administration documentsî means paper forms issued or controlled by the Government of a Party which must be completed by or for an importer or exporter in relation to the import or export of goods.
ARTICLE 2
Transparency
of paragraph 1.
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ARTICLE 3
Customs Duties
Each Party shall maintain its current practice of not imposing customs duties on electronic transmissions between Australia and Singapore.
ARTICLE 4
Domestic Regulatory Frameworks
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that regulatory frameworks support industry-led development of electronic commerce.
ARTICLE 5
Electronic Authentication and Electronic Signatures
that:
(a) permits parties to an electronic transaction to determine the appropriate authentication technologies and implementation models for their electronic transaction, without limiting the recognition of technologies and implementation models; and
(b) permits parties to an electronic transaction to have the opportunity to prove in court that their electronic transaction complies with any legal requirements.
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ARTICLE 6
Online Consumer Protection
by that Party, provide protection for consumers using electronic commerce that is at
least equivalent to that provided for consumers of other forms of commerce under their respective domestic laws.
ARTICLE 7
Online Personal Data Protection
ARTICLE 8
Paperless Trading
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
ARTICLE 9
Exceptions
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ARTICLE 10
Non-Application of Dispute Settlement Provisions
Chapter 16 (Dispute Settlement) shall not apply to Articles 4 (Domestic
Regulatory Framework), 5 (Electronic Authentication and Electronic Signature), 6
(Online Consumer Protection) and 7 (Online Personal Data Protection) of this Chapter.
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ARTICLE 1
Scope and Purpose
The purpose of this Chapter is to foster closer people-to-people links and mutual understanding between Australia and Singapore and to enhance the role played by education in enhancing the bilateral trade and investment relationship through promoting mutual cooperation in education.
ARTICLE 2
Fields of Cooperation
Both Parties shall encourage and facilitate, as appropriate, exchanges in the following fields:
(a) quality assurance processes;
(b) on-line and distance education at all levels;
(c) primary and secondary education systems;
(d) higher education;
(e) technical education and vocational training;
(f) industry collaboration for technical and vocational training; and
(g) teacher training and development.
ARTICLE 3
Facilitation of Cooperation
Both Parties shall encourage and facilitate, as appropriate, the development of contacts and cooperation between their respective government agencies, educational institutions, organisations, and other entities and the conclusion of arrangements between such bodies to cooperate in the above fields. These may be achieved through:
(a) joint planning and implementation of programs and projects, and joint coordination of targeted activities in agreed fields;
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(b) development of collaborative training, joint research and development, technology transfer and joint ventures between appropriate authorities and institutions;
(c) development of programs which can be jointly delivered by institutions;
(d) exchange of teaching staff, administrators, researchers and students;
(e) academic credit transfer and mutual recognition of academic and vocational qualifications, between recognised institutions of higher learning;
(f) cooperation in areas of interest in technical and vocational education;
(g) exchange of teaching and curriculum materials, teaching aids, and demonstration materials as well as the organisation of relevant specialised exhibitions and seminars;
(h) exchange of information on:
(i) study opportunities in Australia and Singapore;
(ii) education systems and standards; and
(iii) research projects, symposia and other academic events;
(i) cooperative research in emerging education issues;
(j) collaboration on the development of quality assured innovative resources to support learning and assessment, and the professional development of teachers and trainers in training and vocational education; and
(k) other forms of cooperation as may be mutually determined.
ARTICLE 4
Student Mobility and Scholarship Arrangements
ARTICLE 5
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Costs
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ARTICLE 1
Scope and Coverage
authorities within the territory of a Party. When an arbitral tribunal has ruled that a
provision of this Agreement has not been observed, the responsible Party shall take
such reasonable measures as may be available to it to ensure its observance. The provisions of this Chapter relating to compensation and suspension of benefits apply
in cases where it has not been possible to secure such observance.
with customary rules of interpretation of public international law.
ARTICLE 2
Consultations
implementation, interpretation or application of this Agreement. Any differences shall, as far as possible, be settled by consultation between the Parties.
Party to carry out its obligations under this Agreement, may, with a view to achieving
satisfactory settlement of the matter, make representations or proposals to the other
Party, which shall give due consideration to the representations or proposals made to
it.
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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.
of any matter through consultations. To this end, the Parties shall:
(a) provide sufficient information to enable a full examination of how the measure might affect the operation of the Agreement; and
(b) treat as confidential any information exchanged in the consultations which the other Party has designated as confidential.
ARTICLE 3
Good Offices, Conciliation or Mediation
ARTICLE 4
Appointment of Arbitral Tribunals
If the consultations fail to settle a dispute within 60 days after the date of
receipt of the request for consultations, the Party which made the request for consultations may make a written request to the other Party to appoint an arbitral tribunal under this Article. The request shall include a statement of the claim and the grounds on which it is based.
ARTICLE 5
Composition of Arbitral Tribunals
by common agreement the third arbitrator.
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the tribunal.
a national of either Party and shall have expertise or experience in law, international
trade, other matters covered by this Agreement or the resolution of disputes arising under international trade agreements, and shall be chosen strictly on the basis of objectivity, reliability, sound judgement and independence. Additionally, the chair shall not have his or her usual place of residence in the territory of, nor be employed by, either Party.
ARTICLE 6
Functions of Arbitral Tribunals
an arbitral tribunal is unable to reach consensus it may take its decisions by majority vote.
matters set out in Article 7 (Proceedings of Arbitral Tribunals), regulate its own procedures in relation to the rights of Parties to be heard and its deliberations.
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ARTICLE 7
Proceedings of Arbitral Tribunals
at the meetings only when invited by the arbitral tribunal to appear before it.
submits a confidential version of its written submissions to the arbitral tribunal, it shall also, upon request of the other Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.
Parties shall transmit to the arbitral tribunal written submissions in which they present
the facts of their case and their arguments.
to the meeting, written rebuttals to the arbitral tribunal.
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it cannot release its final report within 60 days, it shall inform the Parties in writing of
the reasons for the delay together with an estimate of the period within which it will
issue its report. The final report of the arbitral tribunal shall become a public document within 10 days after its release to the Parties.
ARTICLE 8
Suspension and Termination of Proceedings
of the arbitral tribunal has been suspended for more than 12 months, the authority for establishment of the tribunal shall lapse unless the Parties agree otherwise.
established under this Agreement, in the event that a mutually satisfactory solution to the dispute has been found.
ARTICLE 9
Implementation
its report to the Parties within 60 days after the date of the referral of the matter to it.
When the arbitral tribunal considers that it cannot provide its report within this
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timeframe, it shall inform the Parties in writing of the reasons for the delay together
with an estimate of the period within which it will submit its report.
ARTICLE 10
Compensation and Suspension of Benefits
the Agreement into compliance with the recommendations of the arbitral tribunal
under Article 9.2 within 20 days of the report of that arbitral tribunal being provided
to the Parties, that Party shall, if so requested, enter into negotiations with the
complaining Party with a view to reaching a mutually satisfactory agreement on any necessary compensatory adjustment.
within 20 days after the request of the complaining Party to enter into negotiations on compensatory adjustment, the complaining Party may request the original arbitral tribunal to determine the appropriate level of any suspension of benefits conferred on the other Party under this Agreement. Where the original arbitral tribunal cannot hear the matter for any reason, a new tribunal shall be appointed under Article 4
(Appointment of Arbitral Tribunals).
Party under this Agreement.
(a) the Party having invoked the dispute settlement procedures should first seek to suspend benefits in the same sector or sectors as that affected by the
measure or other matter that the arbitral tribunal has found to be inconsistent with this Agreement or to have caused nullification or impairment; and
(b) the Party having invoked the dispute settlement procedures may suspend benefits in other sectors if it considers that it is not practicable or effective to suspend benefits in the same sector.
ARTICLE 11
Expenses
Each Party shall bear the costs of its appointed arbitrator and its own expenses and legal costs. The costs of the Chair of the arbitral tribunal and other expenses
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associated with the conduct of its proceedings shall be borne in equal parts by both
Parties.
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ARTICLE 1
State, Regional and Local Government
Each Party is fully responsible for the observance of all provisions in this Agreement, and, except as otherwise provided for in this Agreement, shall take such reasonable measures as may be available to it to ensure their observance by the regional and local governments and authorities within its territory, and in respect of trade in services and investment covered by Chapter 7 (Trade in Services) and Chapter 8 (Investment) of this Agreement, their observance by non-governmental bodies (in the exercise of powers delegated by central, state, regional or local
government or authorities) within its territory.
ARTICLE 2
Contact point
Each Party shall designate a contact point to facilitate communications
between the Parties on any matter covered by this Agreement. On the request of a Party, the contact point of the requested Party shall identify the office or official responsible for the matter and assist in facilitating communication with the requesting Party.
ARTICLE 3
Review
In addition to the provisions for consultations elsewhere in this Agreement, Ministers in charge of trade negotiations of the Parties shall meet within a year of the date of entry into force of this Agreement and then biennially or otherwise as appropriate to review this Agreement.
ARTICLE 4
Association with the Agreement
This Agreement is open to accession or association, on terms to be agreed
between the Parties, by any State or separate customs territory.
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ARTICLE 5
Relation to Other Agreements
In the event of any inconsistency between this Agreement and any other agreement to which both Parties are parties, the Parties shall immediately consult with each other with a view to finding a mutually satisfactory solution in accordance with customary rules of public international law.
ARTICLE 6
Annexes
The Annexes to this Agreement shall form an integral part of this Agreement.
ARTICLE 7
Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall enter into force on such date or dates as may be agreed between them.
ARTICLE 8
Entry into Force, Duration and Termination
entry into force of this Agreement.
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IN WITNESS WHEREOF the undersigned, being duly authorised by their respective
Governments, have signed this Agreement.
DONE in duplicate at this day of 2003.
For Singapore For Australia
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