Australia-UK FTA Chapter 8 Cross Border Trade in Services

Article 8.1 Definitions

For the purposes of this Chapter:

“airport operation services” means the operation or management, on a fee or contract basis, of airport infrastructure, including terminals, runways, taxiways and aprons, parking facilities, and intra-airport transportation systems. Airport operation services do not include air navigation services;

“computer reservation system services” means 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;

“cross-border trade in services” or “cross-border supply of services” means the supply of a service:

• (a) from the territory of a Party into the territory of the other Party;
• (b) in the territory of a Party to a person of the other Party; or
• (c) 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 a covered investment;

“enterprise” means an enterprise as defined in Article 1.4 (General Definitions – Initial Provisions and General Definitions), and a branch of an enterprise;

“enterprise of a Party” means:

• (a) an enterprise as defined in Article 1.4 (General Definitions – Initial Provisions and General Definitions), constituted or organised under the law of that Party, or a branch located in the territory of that Party, and carrying out substantial business activities in the territory of that Party; or
• (b) an enterprise of a non-Party owned or controlled by a person of a Party,^[1] if any of its vessels are registered in accordance with the law of that Party and flying the flag of that Party, when supplying services within the scope of Annex 8B (International Maritime Transport Services) using those vessels;

“ground handling services” means the supply of a service on a fee or contract basis for: airline representation, administration and supervision, ground administration and supervision, including load control and communications; passenger handling; baggage handling; ramp services; air cargo and mail handling; aviation fuel and oil handling; flight operations, crew administration and flight planning; aircraft servicing and cleaning; surface transport; and catering services. Ground handling services do not include: self-handling; security services; fixed intra-airport transport systems; line maintenance; aircraft repair and maintenance; or the operation or management of centralised airport infrastructure such as de-icing facilities, fuel distribution systems, or baggage handling systems;

“measures of a Party” means measures adopted or maintained by

• (a) central, regional, or local governments or authorities; or
• (b) non-governmental bodies in the exercise of powers delegated by central, regional, or local governments or authorities;

“selling and marketing of air transport services” means 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 or the applicable conditions;

“service supplied in the exercise of governmental authority” means, for each Party, any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers;

“service supplier of a Party” means a person of a Party that seeks to supply or supplies a service; and

“specialty air services” means a specialised commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, aerial advertising, flight training, 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 8.2 Scope

1. This Chapter applies to measures of a Party affecting cross-border trade in services by service suppliers of the other Party. Those measures include measures affecting:

(a) the production, distribution, marketing, sale or 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 the Party’s 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. In addition to paragraph 1:

(a) Article 8.9 (Recognition) and 8.11 (Transparency) also apply to measures of a Party affecting the supply of a service in its territory by a covered investment.

(b) Article 8.8 (Domestic Regulation) also applies to measures of a Party that impose licensing requirements and procedures, qualification requirements and procedures, and technical standards,^[2] affecting the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of a covered investment in the form of an enterprise, as these terms are defined in Article 13.1 (Definitions – Investment).

(c) Annex 8A (Express Delivery Services) also applies to measures of a Party affecting the supply of express delivery services, including by a covered investment.

(d) Annex 8B (International Maritime Transport Services) also applies to measures of a Party affecting the supply of international maritime transport services;

3. This Chapter does not apply to:

(a) financial services as defined in Article 9.1 (Definitions – Financial Services);

(b) government procurement;

(c) services supplied in the exercise of governmental authority;^[3]

(d) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance; or

 (e) audio-visual services.

4. This Chapter does not impose any obligation on a Party with respect to a national of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment. For greater certainty, this Chapter does not apply to measures regarding citizenship, nationality or residence on a permanent basis.

5. This Chapter shall not apply to air services, including domestic and international air transportation services, whether scheduled or non-scheduled, or to related services in support of air services, other than the following:

(a) repair and maintenance services on an aircraft or a part thereof during which the aircraft or the part is withdrawn from service, and aircraft line maintenance;

(b) selling and marketing of air transport services;

(c) computer reservation system services;

(d) specialty air services;^[4]

(e) airport operation services; and

(f) ground handling services.

6. In the event of any inconsistency between this Chapter and a bilateral, plurilateral or multilateral air services agreement to which both Parties are party, the air services agreement shall prevail in determining the rights and obligations of the Parties.

7. If the Parties have the same obligations under this Agreement and a bilateral, plurilateral, or multilateral air services agreement, they may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.

8. If the Annex on Air Transport Services of GATS is amended, the Parties may jointly review any new definitions.

Article 8.3 National Treatment^[5]

1. 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.

2. For greater certainty, the treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to service suppliers of the Party of which it forms a part.

Article 8.4 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 services and service suppliers of a non-Party.^[6]

Article 8.5 Market Access

Neither Party shall adopt or maintain, either on the basis of its entire territory or on the basis of the territory of a central, regional or local level of government, a measure that:

(a) imposes a limitation 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 service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;^[7] 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) restricts or requires specific types of legal entity or joint venture through which a service supplier may supply a service.

Article 8.6 Local Presence

Neither Party shall 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 8.7 Non-Conforming Measures

1. Article 8.3 (National Treatment), Article 8.4 (Most-Favoured-Nation Treatment), Article 8.5 (Market Access) and Article 8.6 (Local Presence) 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 Article 8.3 (National Treatment), Article 8.4 (Most-Favoured-Nation Treatment), Article 8.5 (Market Access) or Article 8.6 (Local Presence).

2. Article 8.3 (National Treatment), Article 8.4 (Most-Favoured-Nation Treatment), Article 8.5 (Market Access) and Article 8.6 (Local Presence) do not apply to any measure of a Party with respect to sectors, sub-sectors or activities, as set out by that Party in its Schedule to Annex II.

3. If a Party considers that a non-conforming measure applied by a regional level of government of the other Party, as referred to in subparagraph 1(a)(ii), creates a material impediment to the cross-border supply of services in relation to the former Party, it may request consultations with regard to that measure. The Parties shall enter into consultations with a view to exchanging information on the operation of the measure and to considering whether further steps are necessary and appropriate.^[8]

Article 8.8 Domestic Regulation

1. For the purposes of this Article:

“authorisation” means permission for the cross-border supply of a service or for the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of a covered investment in the form of an enterprise resulting from a procedure a person of a Party must adhere to in order to demonstrate compliance with licensing requirements, qualification requirements or technical standards;

“competent authority” means a central, regional or local government or authority or non-governmental body in the exercise of powers delegated by a central, regional or local government or authority, which is entitled to take a decision concerning authorisation.

2. (a) Subject to subparagraph (b), this Article applies to measures of a

Party relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards.

(b) This Article does not apply to a measure to the extent that the measure is not subject to an obligation in this Chapter or Chapter 13 (Investment) by reason of Article 8.7 (Non-Conforming Measures) or Article 13.13 (Non-Conforming Measures – Investment).

3. Each Party shall ensure that measures relating to authorisation are based on criteria which preclude a competent authority from exercising its power of assessment in an arbitrary manner. If a Party adopts or maintains a measure relating to authorisation, it shall ensure that:

(a) those measures are based on criteria^[9] that are:

(i) clear and transparent;

(ii) objective; and

(iii) established in advance and made publicly accessible.

(b) the procedures are impartial, easily accessible to all applicants and that the procedures are adequate for applicants to demonstrate whether they meet the requirements, where those requirements exist;

(c) the procedures do not in themselves unjustifiably prevent the fulfilment of requirements; and

(d) those measures do not discriminate between men and women.^[10]

4. (a) If a Party requires authorisation, the Party shall promptly publish^[11]

the information necessary for service suppliers of a Party or persons carrying out or seeking to carry out the activity for which authorisation is required to comply with the requirements and procedures for obtaining, maintaining, amending and renewing that authorisation. Each Party shall ensure that this information is easily accessible through electronic means. Where it exists, that information shall include but is not limited to:

1. the requirements and procedures;
2. contact information of relevant competent authorities;
3. fees;
4. technical standards;
5. procedures for appeal or review of decisions concerning applications;
6. procedures for monitoring or enforcing compliance with the terms and conditions of licences or qualifications;
7. opportunities for public involvement, such as through hearings or comments;
8. indicative or, to the extent possible, fixed timeframes for processing of an application; and

(ix) the length of authorisation, and where relevant, the date of its renewal.

b) Each Party shall require its competent authorities to respond to any reasonable request for information or assistance, to the extent practicable.

5. If a Party requires authorisation, it shall, to the extent practicable ensure that its competent authorities avoid requiring an applicant to approach more than one competent authority for each application for authorisation, recognising that if an activity for which authorisation is requested is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.

6. If a Party requires authorisation, it shall ensure that its competent authorities:

(a) to the extent practicable, permit the submission of an application at any time throughout the year.^[12] If a specific time period for applying exists, the Party shall ensure that its competent authorities allow a reasonable period of time for the submission of an application;

(b) to the extent possible, accept applications in electronic format. For greater certainty, this includes applications made from within the territory of the other Party;

(c) accept copies of documents, that are authenticated in accordance with the Party’s law, in place of original documents, unless the competent authorities require original documents to protect the integrity of the authorisation process;

(d) to the extent practicable, publish in advance a fixed or indicative timeframe for processing of an application;

(e) at the request of the applicant, provide without undue delay information concerning the status of the application;

(f) to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party’s laws and regulations;

(g) if they consider an application complete for processing under the Party’s laws and regulations,^[13] within a reasonable period of time after the submission of the applications, ensure that:

(i) the processing of the application is completed;

(ii) the applicant is informed of the decision concerning the application^[14] to the extent possible in writing;^[15] and

(iii) an authorisation is granted as soon as the competent authority determines that the conditions for authorisation have been met;

(h) if they consider an application incomplete for processing under the Party’s laws and regulations, within a reasonable period of time, to the extent practicable:

(i) inform the applicant that the application is incomplete;

(ii) at the request of an applicant, identify the additional information required to complete the application and provide guidance to the applicant about the type of information required to complete the application; and

(iii) provide the applicant with the opportunity^[16] to correct deficiencies;

however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they inform the applicant within a reasonable period of time; and

(i) if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant of the reasons for rejection and, if applicable, the procedures for resubmission of an application. An applicant should not be prevented from submitting another application^[17] solely on the basis of a previously rejected application.

7. Each Party shall ensure that authorisation, once granted, enters into effect without undue delay, subject to applicable terms and conditions.^[18]

8. Each Party shall ensure that the authorisation fees^[19] charged by its competent authorities are made public, reasonable, transparent, and do not in themselves restrict the supply of the relevant service or the carrying out of the relevant activity. Each Party is encouraged to accept payment of authorisation fees by electronic means.

9. If a Party requires examinations for authorisation, it shall:

(a) ensure that its competent authorities schedule the examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination; and

(b) to the extent practicable, accept requests in electronic format to take those examinations and consider the use of electronic means in other aspects of the examination processes.

10. If a Party adopts or maintains a measure relating to authorisation, it shall ensure that its competent authority processes an application, reaches and administers its decisions objectively, impartially and in a manner independent from any supplier of the service or person carrying out the activity for which authorisation is required.^[20]

11. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.

12. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party^[21] shall publish in advance:

(a) laws or regulations of general application it proposes to adopt in relation to matters falling within the scope of paragraph 2; or

(b) documents that provide sufficient details about that possible new law or regulation to allow interested persons or the other Party to assess whether and how their interests might be significantly affected.

13. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party is encouraged to apply paragraph 12 to procedures and administrative rulings of general application it proposes to adopt in relation to matters falling within the scope of paragraph 2.

14. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall provide interested persons and the other Party with a reasonable opportunity to comment on those proposed measures or documents published under paragraphs 12 and 13.

15. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall consider comments received under paragraph 14.^[22]

16. In publishing a law or regulation referred to in subparagraph 12(a), or in advance of that publication, to the extent practicable and in a manner consistent with its legal system for adopting measures, a Party is encouraged to explain the purpose and rationale of that law or regulation.

17. Each Party shall, to the extent practicable, endeavour to allow reasonable time between the publication of the text of a law or regulation referred to in subparagraph 12(a) and the date on which service suppliers of a Party or persons carrying out or seeking to carry out an activity must comply with that law or regulation.

18. Each Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage any body, including relevant international organisations,^[23] designated to develop technical standards to use open and transparent processes.

19. If the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, a Party shall apply a selection procedure to potential candidates which is impartial and transparent and provides for adequate publicity about the launch, conduct and completion of the procedure. The selection procedure may take into account legitimate policy objectives, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.

20. Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from service suppliers of a Party and persons carrying out or seeking to carry out an activity.

Article 8.9 Recognition

1. For the purposes of the fulfilment, in whole or in part, of a Party’s standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to the requirements of paragraph 4, the Party may recognise the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-Party. That recognition, which may be achieved through harmonisation or otherwise, may be based on an agreement or arrangement with the non-Party concerned, or may be accorded autonomously.

2. If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-Party, nothing in Article 8.4 (Most-Favoured-Nation Treatment) or Article 13.6 (Most-Favoured-Nation Treatment – Investment) shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the territory of the other Party.

3. If a Party is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, the Party shall afford adequate opportunity to the other Party, on request, to negotiate its accession to that agreement or arrangement, or to negotiate a comparable agreement or arrangement. If a Party accords recognition autonomously, the Party shall afford adequate opportunity to the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that Party’s territory should be recognised.

4. Neither Party shall accord recognition in a manner that would constitute a means of discrimination between a Party and a non-Party in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.

Article 8.10 Denial of Benefits

A Party may deny the benefits of this Chapter to a service supplier of the other Party that is an enterprise of that Party and to services of that services supplier if persons of a non-Party own or control the enterprise, and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to services of that enterprise.

Article 8.11 Transparency

1. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding its regulations that relate to the subject matter of this Chapter.^[24]

2. If a Party does not provide advance notice and opportunity for comment pursuant to paragraph 2 of Article 28.2 (Publication – Transparency and Anti-Corruption) with respect to regulations that relate to the subject matter in this Chapter, it shall, to the extent practicable, provide in writing or otherwise notify interested persons of the reasons for not doing so.

3. To the extent possible, each Party shall allow reasonable time between publication of final regulations and the date when they enter into effect.

Article 8.12 Payments and Transfers

1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.

2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.

3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory and good faith application of its law^[25] that relates to:

(a) bankruptcy, insolvency or the protection of the rights of creditors;

(b) issuing, trading or dealing in securities or derivatives;

(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;

(d) criminal or penal offences; or

(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.

Article 8.13 Committee on Services and Investment

1. The Parties hereby establish a Committee on Services and Investment, composed of government representatives of each Party.^[26]

2. The Committee shall:

(a) review and monitor the implementation and operation of this Chapter (which includes Annex 8A (Express Delivery Services) and Annex 8B (International Maritime Transport Services)), Chapter 9 (Financial Services) (which includes Annex 9A (Cross-Border Trade in Financial Services), Annex 9B (Authorities Responsible for Financial Services) and Annex 9C (Financial Services Regulatory Cooperation)), Chapter 10 (Professional Services and the Recognition of Professional Qualifications), Chapter 11 (Temporary Entry for Business Persons), Chapter 12 (Telecommunications), Chapter 13 (Investment), and Chapter 14 (Digital Trade) (“the relevant Chapters”);

(b) consider ways to further enhance trade and investment between the Parties, including through amendments to each Party’s Schedules to Annex I (Schedules of Non-conforming Measures for Services and Investment), Annex II (Schedules of Non-conforming Measures for Services and Investment), Annex III (Schedules of Non-Conforming Measures for Financial Services) and Annex IV (Schedules of Specific Commitments on Temporary Entry for Business Persons); and

(c) facilitate the exchange of information between the Parties in relation to the relevant Chapters.

3. The Committee may:

(a) make recommendations, or refer matters, to the Joint Committee;

(b) establish ad hoc working groups, as appropriate;

(c) refer matters to any ad hoc or standing working group or any other subsidiary body related to the relevant Chapters; and

(d) consider any other matter related to the relevant Chapters, or as directed by the Joint Committee.

4. The Committee shall meet one year after entry into force, and thereafter as agreed by both Parties.

5. The Committee shall report to the Joint Committee.

Annex 8A (Express Delivery Services)

Annex 8B (International Maritime Transport Services)