Part VI: Final Provisions

Article XXVII: Denial of Benefits

A Member may deny the benefits of this Agreement:

(a)  to the supply of a service, if it establishes that the service is supplied from or in the territory of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement; 
 

(b)  in the case of the supply of a maritime transport service, if it establishes that the service is supplied:
 

(i)   by a vessel registered under the laws of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement, and
 

(ii)  by a person which operates and/or uses the vessel in whole or in part but which is of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement;
 

(c)  to a service supplier that is a juridical person, if it establishes that it is not a service supplier of another Member, or that it is a service supplier of a Member to which the denying Member does not apply the WTO Agreement.

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Article XXVIII: Definitions 

For the purpose of this Agreement:

(a)  “measure?means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
 

(b)  “supply of a service?includes the production, distribution, marketing, sale and delivery of a service;
 

(c)  “measures by Members affecting trade in services?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 those Members to be offered to the public generally;
 

(iii)   the presence, including commercial presence, of persons of a Member for the supply of a service in the territory of another Member;
 

(d)  “commercial presence?means any type of business or professional establishment, including through
 

(i)   the constitution, acquisition or maintenance of a juridical person, or
 

(ii)  the creation or maintenance of a branch or a representative office,
 

within the territory of a Member for the purpose of supplying a service;
 

(e)  “sector?of a service means,
 

(i)   with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Member’s Schedule,
 

(ii)  otherwise, the whole of that service sector, including all of its subsectors;
 

(f)  “service of another Member?means a service which is supplied,
 

(i)   from or in the territory of that other Member, or in the case of maritime transport, by a vessel registered under the laws of that other Member, or by a person of that other Member 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 that other Member;
 

(g)  “service supplier?means any person that supplies a service;⁽¹²⁾
 

(h)  “monopoly supplier of a service?means any person, public or private, which in the relevant market of the territory of a Member is authorized or established formally or in effect by that Member as the sole supplier of that service;
 

(i)  “service consumer?means any person that receives or uses a service;
 

(j)  “person?means either a natural person or a juridical person;
 

(k)  “natural person of another Member?means a natural person who resides in the territory of that other Member or any other Member, and who under the law of that other Member:
 

(i)   is a national of  that other Member; or
 

(ii)  has the right of permanent residence in that other Member, in the case of a Member which:
 

1.   does not have nationals; or
 

2.   accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, as notified in its acceptance of or accession to the WTO Agreement, provided that no Member is obligated to accord to such permanent residents treatment more favourable than would be accorded by that other Member to such permanent residents.  Such notification shall include the assurance to assume, with respect to those permanent residents, in accordance with its laws and regulations, the same responsibilities that other Member bears with respect to its nationals;
 

(l)   “juridical person?means any legal entity duly constituted or otherwise organized 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;
 

(m)   “juridical person of another Member?means a juridical person which is either:
 

(i)   constituted or otherwise organized under the law of that other Member, and is engaged in substantive business operations in the territory of that Member or any other Member; or
 

(ii)  in the case of the supply of a service through commercial presence, owned or controlled by:
 

1.   natural persons of that Member; or

 

2.   juridical persons of that other Member identified under subparagraph (i);
 

(n)  a juridical person is:
 

(i)   “owned?by persons of a Member if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Member;
 

(ii)  “controlled?by persons of a Member if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
 

(iii)   “affiliated?with another person when it controls, or is controlled by, that other person;  or when it and the other person are both controlled by the same person;
 

(o)  “direct taxes?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.

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Article XXIX: Annexes 

The Annexes to this Agreement are an integral part of this Agreement.

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Annex on Article II Exemptions

Scope

1.   This Annex specifies the conditions under which a Member, at the entry into force of this Agreement, is exempted from its obligations under paragraph 1 of Article II.

2.   Any new exemptions applied for after the date of entry into force of the WTO Agreement shall be dealt with under paragraph 3 of Article IX of that Agreement.

Review

3.   The Council for Trade in Services shall review all exemptions granted for a period of more than 5 years.  The first such review shall take place no more than 5 years after the entry into force of the WTO Agreement.

4.   The Council for Trade in Services in a review shall:

(a)  examine whether the conditions which created the need for the exemption still prevail;  and
 

(b)  determine the date of any further review.

Termination

5.   The exemption of a Member from its obligations under paragraph 1 of Article II of the Agreement with respect to a particular measure terminates on the date provided for in the exemption.

6.   In principle, such exemptions should not exceed a period of 10 years.  In any event, they shall be subject to negotiation in subsequent trade liberalizing rounds.

7.   A Member shall notify the Council for Trade in Services at the termination of the exemption period that the inconsistent measure has been brought into conformity with paragraph 1 of Article II of the Agreement.

Lists of Article II Exemptions

[The agreed lists of exemptions under paragraph 2 of Article II will be annexed here in the treaty copy of the WTO Agreement.]

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Annex on Movement of Natural Persons Supplying Services Under the Agreement

1.   This Annex applies to measures affecting natural persons who are service suppliers of a Member, and natural persons of a Member who are employed by a service supplier of a Member, in respect of the supply of a service.

2.   The Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.

3.   In accordance with Parts III and IV of the Agreement, Members may negotiate specific commitments applying to the  movement of all categories of natural persons supplying services under the Agreement.  Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.

4.   The Agreement shall not prevent a Member from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Member under the terms of a specific commitment.⁽¹³⁾

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Annex on Air Transport Services

1.   This Annex applies to measures affecting trade in air transport services, whether scheduled or non-scheduled, and ancillary services.  It is confirmed that any specific commitment or obligation assumed under this Agreement shall not reduce or affect a Member’s obligations under bilateral or multilateral agreements that are in effect on the date of entry into force of the WTO Agreement.

2.   The Agreement, including its dispute settlement procedures, shall not apply to measures affecting:

(a)  traffic rights, however granted;  or
 

(b)  services directly related to the exercise of traffic rights,

    except as provided in paragraph 3 of this Annex.

3.   The Agreement shall apply to measures affecting:

(a)  aircraft repair and maintenance services;
 

(b)  the selling and marketing of air transport services;
 

(c)  computer reservation system (CRS) services.

4.   The dispute settlement procedures of the Agreement may be invoked only where obligations or specific commitments have been assumed by the concerned Members and where dispute settlement procedures in bilateral and other multilateral agreements or arrangements have been exhausted.

5.   The Council for Trade in Services shall review periodically, and at least every five years, developments in the air transport sector and the operation of this Annex with a view to considering the possible further application of the Agreement in this sector.

6.   Definitions:

(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)  “Selling and marketing of air transport services?mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution.  These activities do not include the pricing of air transport services nor the applicable conditions.
 

(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.
 

(d)  “Traffic rights?mean the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Member, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.

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Annex on Financial Services

1.   Scope and Definition

(a)  This Annex applies to measures affecting the supply of financial services.  Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in paragraph 2 of Article I of the Agreement.
 

(b)  For the purposes of subparagraph 3(b) of Article I of the Agreement, “services supplied in the exercise of governmental authority?means the following:
 

(i)   activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
 

(ii)  activities forming part of a statutory system of social security or public retirement plans;  and
 

(iii)   other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.
 

(c)  For the purposes of subparagraph 3(b) of Article I of the Agreement, if a Member allows any of the activities referred to in subparagraphs (b)(ii) or (b)(iii) of this paragraph to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, “services?shall include such activities.
 

(d)  Subparagraph 3(c) of Article I of the Agreement shall not apply to services covered by this Annex.

2.   Domestic Regulation

(a)  Notwithstanding any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system.  Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member’s commitments or obligations under the Agreement.
 

(b)  Nothing in the Agreement shall be construed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.

3.   Recognition

(a)  A Member may recognize prudential measures of any other country in determining how the Member’s measures relating to financial services shall be applied.  Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
 

(b)  A Member that is a party to such an agreement or arrangement referred to in subparagraph (a), whether future or existing, shall afford adequate opportunity for other interested Members to negotiate their accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement.  Where a Member accords recognition autonomously, it shall afford adequate opportunity for any other Member to demonstrate that such circumstances exist.
 

(c)  Where a Member is contemplating according recognition to prudential measures of any other country, paragraph 4(b) of Article VII shall not apply.

4.   Dispute Settlement

    Panels for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.

5.   Definitions

For the purposes of this Annex:

(a)  A financial service is any service of a financial nature offered by a financial service supplier of a Member.  Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance).  Financial services include the following activities:

      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.
 

(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.
 

(b)  A financial service supplier means any natural or juridical person of a Member wishing to supply or supplying financial services but the term “financial service supplier?does not include a public entity.
 

(c)  “Public entity?means:
 

(i)   a government, a central bank or a monetary authority, of a Member, or an entity owned or controlled by a Member, 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.

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Second Annex on Financial Services

1.   Notwithstanding Article II of the Agreement and paragraphs 1 and 2 of the Annex on Article II Exemptions, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, list in that Annex measures relating to financial services which are inconsistent with paragraph 1 of Article II of the Agreement.

2.   Notwithstanding Article XXI of the Agreement, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, improve, modify or withdraw all or part of the specific commitments on financial services inscribed in its Schedule.

3.   The Council for Trade in Services shall establish any procedures necessary for the application of paragraphs 1 and 2.

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Annex on Negotiations on Maritime Transport Services

1.   Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for international shipping, auxiliary services and access to and use of port facilities only on:

(a)  the implementation date to be determined under paragraph 4 of the Ministerial Decision on Negotiations on Maritime Transport Services; or,
 

(b)  should the negotiations not succeed, the date of the final report of the Negotiating Group on Maritime Transport Services provided for in that Decision.

2.   Paragraph 1 shall not apply to any specific commitment on maritime transport services which is inscribed in a Member’s Schedule.

3.   From the conclusion of the negotiations referred to in paragraph 1, and before the implementation date, a Member may improve, modify or withdraw all or part of its specific commitments in this sector without offering compensation,  notwithstanding the provisions of Article XXI.

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Annex on Telecommunications

1.   Objectives

    Recognizing the specificities of the telecommunications services sector and, in particular, its dual role as a distinct sector of economic activity and as the underlying transport means for other economic activities, the Members have agreed to the following Annex with the objective of elaborating upon the provisions of the Agreement with respect to measures affecting access to and use of public telecommunications transport networks and services.  Accordingly, this Annex provides notes and supplementary provisions to the Agreement.

2.   Scope

(a)  This Annex shall apply to all measures of a Member that affect access to and use of public telecommunications transport networks and services.⁽¹⁴⁾
 

(b)  This Annex shall not apply to measures affecting the cable or broadcast distribution of radio or television programming.
 

(c)  Nothing in this Annex shall be construed:
 

(i)   to require a Member to authorize a service supplier of any other Member to establish, construct, acquire, lease, operate, or supply telecommunications transport networks or services, other than as provided for in its Schedule;  or
 

(ii)  to require a Member (or to require a Member to oblige service suppliers under its jurisdiction) to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services not offered to the public generally.

3.   Definitions

    For the purposes of this Annex:

(a)  “Telecommunications? means the transmission and reception of signals by any electromagnetic means.
 

(b)  “Public telecommunications transport service?means any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally.  Such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information.
 

(c)  “Public telecommunications transport network?means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points.
 

(d)  “Intra-corporate communications?means telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to a  Member’s domestic laws and regulations, affiliates.  For these purposes, “subsidiaries? “branches?and, where applicable, “affiliates?shall be as defined by each Member.  “Intra-corporate communications?in this Annex excludes commercial or non-commercial services that are supplied to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers.
 

(e)  Any reference to a paragraph or subparagraph of this Annex includes all subdivisions thereof.

4.   Transparency

    In the application of Article III of the Agreement, each Member shall ensure that relevant information on conditions affecting access to and use of public telecommunications transport networks and services is publicly available, including:  tariffs and other terms and conditions of service; specifications of technical interfaces with such networks and services;  information on bodies responsible for the preparation and adoption of standards affecting such access and use;  conditions applying to attachment of terminal or other equipment;  and notifications, registration or licensing requirements, if any.

5.   Access to and use of Public Telecommunications Transport Networks and Services

(a)  Each Member shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule.  This obligation shall be applied, inter alia, through paragraphs (b) through (f).⁽¹⁵⁾
 

(b)  Each Member shall ensure that service suppliers of any other Member have access to and use of any public telecommunications transport network or service offered within or across the border of that  Member, including private leased circuits, and to this end shall ensure, subject to paragraphs (e) and (f), that such suppliers are permitted:
 

(i)   to purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to supply a supplier’s services;
 

(ii)  to interconnect private leased or owned circuits with public telecommunications transport networks and services or with circuits leased or owned by another service supplier; and
 

(iii)   to use operating protocols of the service supplier’s choice in the supply of any service, other than as necessary to ensure the availability of telecommunications transport networks and services to the public generally.
 

(c)  Each Member shall ensure that service suppliers of any other Member may use public telecommunications transport networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of any Member.  Any new or amended measures of a Member significantly affecting such use shall be notified and shall be subject to consultation, in accordance with relevant provisions of the Agreement.
 

(d)  Notwithstanding the preceding paragraph, a Member may take such measures as are necessary to ensure the security and confidentiality of messages, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
 

(e)  Each Member shall ensure that no condition is imposed on access to and use of public telecommunications transport networks and services other than as necessary:
 

(i)   to safeguard the public service responsibilities of suppliers of public telecommunications transport networks and services, in particular their ability to make their networks or services available to the public generally;
 

(ii)  to protect the technical integrity of public telecommunications transport networks or services; or
 

(iii)   to ensure that service suppliers of any other Member do not supply services unless permitted pursuant to commitments in the Member’s Schedule.
 

(f)  Provided that they satisfy the criteria set out in paragraph (e), conditions for access to and use of public telecommunications transport networks and services may include:
 

(i)   restrictions on resale or shared use of such services;
 

(ii)  a requirement to use specified technical interfaces, including interface protocols, for inter-connection with such networks and services;
 

(iii)   requirements, where necessary, for the inter-operability of such services and to encourage the achievement of the goals set out in paragraph 7(a);
 

(iv)   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;
 

(v)  restrictions on inter-connection of private leased or owned circuits with such networks or services or with circuits leased or owned by another service supplier; or
 

(vi)   notification, registration and licensing.
 

(g)  Notwithstanding the preceding paragraphs of this section, a developing country Member may, consistent with its level of development, place reasonable conditions on access to and use of public telecommunications transport networks and services necessary to strengthen its domestic telecommunications infrastructure and service capacity and to increase its participation in international trade in telecommunications services.  Such conditions shall be specified in the Member’s Schedule.

6.   Technical Cooperation

(a)  Members recognize that an efficient, advanced telecommunications infrastructure in countries, particularly developing countries, is essential to the expansion of their trade in services.  To this end, Members endorse and encourage the participation, to the fullest extent practicable, of developed and developing countries and their suppliers of public telecommunications transport networks and services and other entities in the development programmes of international and regional organizations, including the International Telecommunication Union, the United Nations Development Programme, and the International Bank for Reconstruction and Development.
 

(b)  Members shall encourage and support telecommunications cooperation among developing countries at the international, regional and sub-regional levels.
 

(c)  In cooperation with relevant international organizations, Members shall make available, where practicable, to developing countries information with respect to telecommunications services and developments in telecommunications and information technology to assist in strengthening their domestic telecommunications services sector.

 

(d)  Members shall give special consideration to opportunities for the least-developed countries to encourage foreign suppliers of telecommunications services to assist in the transfer of technology, training and other activities that support the development of their telecommunications infrastructure and expansion of their telecommunications services trade.

7.   Relation to International Organizations and Agreements

(a)  Members recognize the importance of international standards for global compatibility and inter-operability of telecommunication networks and services and undertake to promote such standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.
 

(b)  Members recognize the role played by intergovernmental and non-governmental organizations and agreements in ensuring the efficient operation of domestic and global telecommunications services, in particular the International Telecommunication Union.  Members shall make appropriate arrangements, where relevant, for consultation with such organizations on matters arising from the implementation of this Annex.

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Annex on Negotiations on Basic Telecommunications

1.   Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for basic telecommunications only on:

(a)  the implementation date to be determined under paragraph 5 of the Ministerial Decision on Negotiations on Basic Telecommunications;  or,
 

(b)  should the negotiations not succeed, the date of the final report of the Negotiating Group on Basic Telecommunications provided for in that Decision.

2.   Paragraph 1 shall not apply to any specific commitment on basic telecommunications which is inscribed in a Member’s Schedule.

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Notes:

• 12. Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under the 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. Back to text
• 13. The sole fact of requiring a visa for natural persons of certain Members and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment. Back to text
• 14. This paragraph is understood to mean that each Member shall ensure that the obligations of this Annex are applied with respect to suppliers of public telecommunications transport networks and services by whatever measures are necessary. Back to text
• 15. The term “non-discriminatory?is understood to refer to most-favoured-nation and national treatment as defined in the Agreement, as well as to reflect sector-specific usage of the term to mean “terms and conditions no less favourable than those accorded to any other user of like public telecommunications transport networks or services under like circumstances? Back to text