Article
9.1: Definitions
For the purposes of this Chapter:
(a) aircraft repair and maintenance services means such
activities when undertaken on an aircraft or a part thereof
while it is withdrawn from service and does not include
so-called line maintenance (part of CPC 8868);
(b) airport
operation services means passenger air terminal services
and ground services on air fields, including runway operating
services, on a fee or contract basis (excluding cargo handling)
(as covered under CPC 7461);
(c) computer reservation system services means services
provided by computerised systems that contain information about
air carrier's schedules, availability, fares and fare
rules, through which reservations can be made or tickets may be
issued (part of CPC 7523);
(d) cross-border trade in services or cross-border supply of
services means the supply of a service:
(i)
from the territory of one Party into the territory of the other
Party;(ii) in the
territory of one Party by a person of that Party to a person of
the other Party; or(iii)
by a national of a Party in the territory of the other
Party;
but does not include the supply of a service in the
territory of a Party by an investor of the other Party or a
covered investment;
(e) enterprise means an enterprise as defined in Article
2.1(f) (Definitions of General Application – General
Definitions Chapter), and a branch of an enterprise;
(f) enterprise of a Party means an enterprise organised or
constituted under the laws of a Party, and a branch located in
the territory of a Party and carrying out business activities
there;
(g) ground
handling services means container handling services for air
transport services only (part of CPC 7411); other cargo
handling services for air transport services only, including
baggage handling (part of CPC 7419); and other supporting
services for air transport (CPC 7469);
(h) measures adopted or maintained by a Party means measures
adopted or maintained 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) selling and marketing of air transport services has the
same meaning as defined in paragraph 6(b) of the GATS Annex on
Air Transport Services, except that "marketing"
shall be limited to market research, advertising and
distribution;
(j) service supplied in the exercise of governmental
authority means any service which is supplied neither on a
commercial basis nor in competition with one or more service
suppliers;
(k) service
supplier of a Party means a person of that Party
who seeks to supply or supplies a service; and
(l) specialty air services means any non-transportation air
services, such as aerial fire-fighting, sightseeing, spraying,
surveying, mapping, photography, parachute jumping, glider
towing, and helicopter-lift for logging and construction, and
other airborne agricultural, industrial, and inspection
services.
Article
9.2:
Scope and Coverage
1. This
Chapter applies to measures adopted or maintained by a Party
affecting cross-border trade in services by service suppliers
of the other Party. Such measures include measures
affecting:
(a)
the production, distribution, marketing, sale, and delivery of
a service;(b)
the purchase or use of, or payment for, a service;(c) the access to
and use of distribution, transport, or telecommunications
networks and services in connection with the supply of a
service;(d)
the presence in its territory of a service supplier of the
other Party; and(e) the provision
of a bond or other form of financial security as a condition
for the supply of a service.
2. Articles
9.5 and 9.8 shall also apply to measures adopted and maintained
by a Party affecting the supply of a service in its territory
by an investor of the other Party or a covered
investment.9-[5]
3. This
Chapter does not apply to:
(a) financial
services as defined in Article 12.1(e) (Definitions –
Financial Services Chapter);(b)
government procurement;(c) subsidies or grants
provided by a Party, including government-supported loans,
guarantees, and insurance;(d) services
supplied in the exercise of governmental authority within the
territory of each respective Party; or(e) air services,
including domestic and international air transportation
services, whether scheduled or non‑scheduled, and related
services in support of air services, other than:(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(iv) airport operation services (excluding cargo handling);
(v) ground handling services; and
(vi) specialty air services.
4. This
Chapter does not impose any obligation on a Party with respect
to a national of the other Party seeking access to its
employment market, or employed on a permanent basis in its
territory, and does not confer any right on that national with
respect to that access or employment.
Article
9.3:
National Treatment
Each Party shall accord to services and service suppliers of
the other Party treatment no less favourable than that it
accords, in like circumstances, to its own services and service
suppliers.
Article
9.4:
Most-Favoured-Nation Treatment
Each Party shall accord to services and service suppliers of
the other Party treatment no less favourable than that it
accords, in like circumstances, to the services and service
suppliers of a non-Party.
Article
9.5:
Market Access
Neither Party may adopt or maintain, either on the basis of
a regional subdivision or on the basis of its entire territory,
measures that:
(a)
impose limitations on:
(i)
the number of service suppliers, whether in the form of
numerical quotas, monopolies, exclusive service suppliers, or
the requirement of an economic needs test;(ii)
the total value of service transactions or assets in the form
of numerical quotas or the requirement of an economic needs
test;(iii)
the total number of service operations or the total quantity of
services output expressed in terms of designated numerical
units in the form of quotas or the requirement of an economic
needs test9-[6]; or(iv)
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; or
(b) restrict or
require specific types of legal entity or joint venture through
which a service supplier may supply a service.
Article
9.6:
Local Presence
Neither Party may require a service supplier of the other
Party to establish or maintain a representative office or any
form of enterprise, or to be resident, in its territory as a
condition for the cross-border supply of a service.
Article
9.7:
Non-Conforming Measures
1. Articles
9.3, 9.4,9.5 and 9.6 do not apply to:
(a)
any existing non-conforming measure that is maintained by a
Party at:
(i)
the central level of government, as set out by that Party in
its Schedule to Annex I;(ii)
a regional level of government, as set out by that Party in its
Schedule to Annex I; or(iii)
a local level of government;
(b) the
continuation or prompt renewal of any non-conforming measure
referred to in subparagraph (a); or
(c) an amendment
to any non-conforming measure referred to in subparagraph (a)
to the extent that the amendment does not decrease the
conformity of the measure, as it existed immediately before the
amendment, with Articles 9.3, 9.4, 9.5 or 9.6.
2. Articles
9.3, 9.4, 9.5 and 9.6 do not apply to any measure that a Party
adopts or maintains with respect to sectors, sub-sectors, or
activities as set out in its Schedule to Annex II.
Article 9.8: Domestic
Regulation
1. Each
Party shall ensure that all measures of general application
affecting trade in services are administered in a reasonable,
objective and impartial manner.
2. Each
Party shall ensure that measures relating to qualification
requirements and procedures, technical standards and licensing
requirements do not constitute unnecessary barriers to trade in
services, including by ensuring that such measures are, inter alia:
(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;
and(c) in the case of
licensing procedures, not in themselves a restriction on the
supply of the service.
3. Where a
Party maintains measures relating to qualification requirements
and procedures, technical standards and licensing requirements,
the Party shall:
(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) where any form
of authorisation is required for the supply of a service,
ensure that it will:
(i)
within a reasonable period of time after the submission of an
application deemed complete under its domestic laws and
regulations, consider the application and make a decision as to
whether or not to grant the relevant authorisation;(ii)
promptly inform the applicant of the decision whether or not to
grant the relevant authorisation;(iii)
upon the request of the applicant, provide without undue delay,
information concerning the status of the application; and(iv)
where practicable, upon the written request of an unsuccessful
applicant, provide written reasons for a decision not to grant
the relevant authorisation;
(c) provide for
adequate procedures to verify the competency of professionals
of the other Party;
(d) in appropriate
professional and other service sectors consider, and where
feasible, take steps to implement a temporary or
project-specific licensing or registration regime, based on the
foreign supplier's home licence or recognised
professional body membership (without the need for further
written or oral examination) with a view to facilitating
temporary access for foreign service suppliers to provide
services in relation to specific projects or for limited
periods in circumstances where specific expertise is
required. Such a temporary or limited licence regime
should not operate to prevent a foreign supplier from gaining a
local licence subsequent to satisfying the necessary local
licensing requirements;
(e) in each sector
where an examination must be passed as a pre-requisite to the
provision of a service in the territory of the Party:
(i)
in the case of examinations administered by government
authorities, take reasonable steps to schedule examinations no
less frequently than once in every calendar year; or(ii)
in the case of examinations solely administered by
non-governmental bodies or professional associations, use best
efforts to encourage such bodies or associations to schedule
examinations no less frequently than once in every calendar
year; and
in each case, the Party shall ensure that such examinations
are open to applicants of the other Party. The
possibility of using electronic means for conducting such
examinations, of conducting such examinations orally, and of
providing opportunities for taking such exams in the territory
of the other Party should be explored.
4.
Notwithstanding Article 9.1(h), paragraphs 1 to 3 above shall
not apply where the relevant measures are the responsibility of
non-governmental bodies. However, each Party shall
encourage such non-governmental bodies to comply with the
requirements of paragraphs 1 to 3 above.
5. If the
results of the negotiations related to Article VI:4 of GATS
enter into effect, the Parties shall jointly review those
results with a view to their incorporation into this Agreement,
as considered appropriate by the Parties.
Article
9.9:
Recognition
1. For the
purposes of the fulfilment, in whole or in part, of its
standards or criteria for the authorisation, licensing, or
certification of service suppliers, and subject to the
requirements of paragraph 3, a Party may recognise the education
or experience obtained, requirements met, or licences or
certifications granted in a particular country. Such
recognition, which may be achieved through harmonisation or
otherwise, may be based upon an agreement or arrangement with
the country concerned or may be accorded autonomously.
2. Where a
Party recognises, autonomously or by agreement or
arrangement,the education or experience obtained, requirements
met or licences or certifications granted in the territory of a
non-Party:
(a) nothing in
Article 9.4 shall be construed to require the Party to accord
such recognition to the education or experience obtained,
requirements met or licences or certifications granted in the
territory of the other Party; and(b) the Party
shall accord the other Party an adequate opportunity to
demonstrate that the education or experience obtained,
requirements met or licences or certifications granted in the
other Party should also be recognised.
3. A Party
shall not accord recognition in a manner which would constitute
a means of discrimination between countries in the application
of its standards or criteria for the authorisation, licensing,
or certification of services suppliers, or a disguised
restriction on trade in services.
Article
9.10:
Denial of Benefits
Subject to prior notification and consultation, a Party may
deny the benefits of this Chapter to a service supplier of the
other Party if the service supplier is an enterprise:
(a) owned or
controlled either by persons of a non-Party or of the denying
Party; and
(b) has no
substantive business operations in the territory of the other
Party.
Professional Services
1. Further
to Article 9.9, the Parties agree to support, to the extent
that their resources permit, profession-led initiatives that
seek to facilitate recognition of the qualifications and or
registration/licensing of professionals of the other Party.
2. To that
end, the Parties agree to establish contact points and, on the
request of either Party, to consult and exchange information on
professional qualifications and registration/licensing.
Such information may include:
(a)
relevant professional and regulatory bodies, including contact
details;(b) laws,
regulations and/or rules relating to professional
qualifications, registration/licensing;(c)
procedures for recognition of qualifications; and(d)
procedures for recognition of registration/licensing.
3. The
Parties agree to support profession-led mutual recognition
initiatives, if and when required and to the extent to which
their resources permit, in ways that are indicated by
professional bodies and/or a regulator that may be of
assistance to the negotiation of a mutual recognition
agreement.
Minister Alejandro Foxley
Ministry of Foreign Affairs
Teatinos 180
Santiago
Chile
Dear Minister Foxley
In connection with the signing on this date of the
Australia-Chile Free Trade Agreement (the
"Agreement"), I have the honour to confirm the
following understanding reached by the Governments of Australia
and the Republic of Chile regarding Chapter 9 (Cross-Border
Trade in Services) and Chapter 10 (Investment) regarding
education services.
Nothing in the above Chapters shall interfere with:
(a)
the ability of individual education and training institutions
to maintain autonomy in admissions policies (including in
relation to considerations of equal opportunity for students
and recognition of credits and degrees), in setting tuition
rates and in the development of curricula or course
content;
(b)
non-discriminatory accreditation and quality assurance
procedures for education and training institutions and their
programs, including the standards that must be met;
(c)
government funding, subsidies or grants, such as land grants,
preferential tax treatment and other public benefits, provided
to education and training institutions; or
(d)
the need for education and training institutions to comply with
non-discriminatory requirements related to the establishment
and operation of a facility in a particular jurisdiction.
I have the honour to propose that this letter and your
letter in reply confirming that your Government shares this
understanding shall constitute an integral part of the
Agreement.
Yours sincerely
Simon Crean
Minister for Trade
The Honourable Simon Crean MP
Minister for Trade
Parliament House
Canberra ACT 2600
Dear Minister Crean
I have the honour to acknowledge receipt of your letter of
this date, which reads as follows:
"In connection with the signing on this date of the
Australia-Chile Free Trade Agreement (the
"Agreement"), I have the honour to confirm the
following understanding reached by the Governments of Australia
and the Republic of Chile regarding Chapter 9 (Cross-Border
Trade in Services) and Chapter 10 (Investment) regarding
education services.
Nothing in the above Chapters shall interfere with:
(a)
the ability of individual education and training institutions
to maintain autonomy in admissions policies (including in
relation to considerations of equal opportunity for students
and recognition of credits and degrees), in setting tuition
rates and in the development of curricula or course
content;
(b)
non-discriminatory accreditation and quality assurance
procedures for education and training institutions and their
programs, including the standards that must be met;
(c)
government funding, subsidies or grants, such as land grants,
preferential tax treatment and other public benefits, provided
to education and training institutions; or
(d)
the need for education and training institutions to comply with
non-discriminatory requirements related to the establishment
and operation of a facility in a particular jurisdiction.
I have the honour to propose that this letter and your
letter in reply confirming that your Government shares this
understanding shall constitute an integral part of the
Agreement."
I have the further honour to confirm that my Government
shares this understanding and that your letter and this letter
in reply shall constitute an integral part of the
Australia-Chile Free Trade Agreement.
Yours sincerely,
Alejandro Foxley Rioseco
Minister for Foreign Affairs
- 9-[5] For greater certainty, the Parties
understand that nothing in this Chapter, including this
paragraph, is subject to Investor-State Dispute Settlement
pursuant to Section B of Chapter 10 (Investment). -
9-[6] Subparagraph (a)(iii) does not cover
measures of a Party which limit inputs for the supply of
services.