CHAPTER 17 FINANCIAL SERVICES - USTR

Transcription

CHAPTER 17FINANCIAL SERVICESArticle 17.1: DefinitionsFor the purposes of this Chapter:computing facility means a computer server or storage device for the processing or storage ofinformation for the conduct of business within the scope of the license, authorization, orregistration of a covered person, but does not include a computer server or storage device of orthose used to access:(a)financial market infrastructures;(b)exchanges or markets for securities or for derivatives such as futures, options, andswaps; or(c)non-governmental bodies that exercise regulatory or supervisory authority overcovered persons;covered person means(a)a financial institution of another Party; or(b)a cross-border financial service supplier of another Party that is subject toregulation, supervision, and licensing, authorization, or registration by a financialregulatory authority of the Party; 1cross-border financial service supplier of a Party means a person of a Party that is engagedin the business of supplying a financial service within the territory of the Party and that seeks tosupply or supplies a financial service through the cross-border supply of that service;cross-border trade in financial services or cross-border supply of financial servicesmeans the supply of a financial service:(a)from the territory of a Party into the territory of another Party;1For greater certainty, whenever a cross-border financial service supplier of another Party is subject to regulation,supervision, and licensing, authorization, or registration by a financial regulatory authority of the Party, that supplieris a covered person for the purposes of this Chapter. For greater certainty, if a financial regulatory authority of theParty foregoes imposition of certain regulatory or supervisory requirements on the condition that a cross-borderfinancial service supplier of another Party comply with certain regulatory or supervisory requirements imposed by afinancial regulatory authority of the other Party, that supplier is a covered person.17-1

(b)in the territory of a Party by a person of that Party to a person of another Party; or(c)by a national of a Party in the territory of another Party,but does not include the supply of a financial service in the territory of a Party by a coveredinvestment;financial institution means a financial intermediary or other enterprise that is authorized todo business and i s regulated or supervised as a financial institution under the law of theParty in whose territory it is located;financial institution of another Party means a financial institution, including a branch,located in the territory of a Party that is controlled by a person of another Party;financial market infrastructure means a multi-participant system in which a covered personparticipates with other financial service suppliers, including the operator of the system, usedfor the purposes of clearing, settling, or recording payments, securities, derivatives, or otherfinancial transactions;financial service means a service of a financial nature. Financial services include all insuranceand insurance-related services, and all banking and other financial services (excludinginsurance), as well as services incidental or auxiliary to a service of a financial nature.Financial services include the following activities:Insurance and insurance-related services(a)direct insurance (including co-insurance):(i)life,(ii)non-life;(b)reinsurance and retrocession;(c)insurance intermediation, such as brokerage and agency; and(d)services auxiliary to insurance, such as consultancy, actuarial, risk assessment, andclaim settlement services;Banking and other financial services (excluding insurance)(e)acceptance of deposits and other repayable funds from the public;17-2

(f)lending of all types, including consumer credit, mortgage credit, factoring, andfinancing of commercial transactions;(g)financial leasing;(h)all payment and money transmission services, including credit, charge and debitcards, travelers checks, and bankers drafts;(i)guarantees and commitments;(j)trading for own account or for account of customers, whether on an exchange, inan over-the-counter market or otherwise, the following:(i)money market instruments (including checks, bills, certificates ofdeposits),(ii)foreign exchange,(iii)derivative products, including futures and options,(iv)exchange rate and interest rate instruments, including products such asswaps and forward rate agreements,(v)transferable securities, and(vi)other negotiable instruments and financial assets, including bullion;(k)participation in issues of all kinds of securities, including underwriting andplacement as agent (whether publicly or privately) and supply of services related tothese issues;(l)money broking;(m)asset management, such as cash or portfolio management, all forms of collectiveinvestment management, pension fund management, custodial, depository, andtrust services;(n)settlement and clearing services for financial assets, including securities,derivative products, and other negotiable instruments;(o)provision and transfer of financial information, and financial data processing andrelated software by suppliers of other financial services; and(p)advisory, intermediation and other auxiliary financial services on all the activitieslisted in subparagraphs (e) through (o), including credit reference and analysis,17-3

investment and portfolio research and advice, advice on acquisitions, and oncorporate restructuring and strategy;financial service supplier of a Party means a person of a Party that is engaged in the businessof supplying a financial service within the territory of that Party;investment means “investment” as defined in Article 1 4 .1 (Definitions), except that withrespect to “loans” and “debt instruments” referred to in that Article:(a)a loan to or debt instrument issued by a financial institution is an investment onlyif it is treated as regulatory capital by the Party in whose territory the financialinstitution is located; and(b)a loan granted by or debt instrument owned by a financial institution, other thana loan to or debt instrument issued by a financial institution referred to insubparagraph (a), is not an investment;for greater certainty, a loan granted, or debt instrument owned, by a cross-border financial servicesupplier, other than a loan to or debt instrument issued by a financial institution, is aninvestment for the purposes of Chapter 14 (Investment), if that loan or debt instrument meets thecriteria for investments set out in Article 14.1 (Definitions);investor of a Party means a Party, or a person of a Party, that attempts to make,2 is making, orhas made an investment in the territory of another Party;new financial service means a financial service not supplied in the Party’s territory that issupplied within the territory of another Party, and includes any new form of delivery of afinancial service or the sale of a financial product that is not sold in the Party’s territory;person of a Party means “person of a Party” as defined in Article 1.5 (General Definitions)and, for greater certainty, does not include a branch of an enterprise of a non-Party;public entity means a central bank or monetary authority of a Party, or a financial institutionthat is owned or controlled by a Party; andself-regulatory organization means a non-governmental body, including a securities or futuresexchange or market, clearing agency, or other organization or association, that exercisesregulatory or supervisory authority over financial service suppliers or financial institutions bystatute or delegation from a central or regional government.2For greater certainty, the Parties understand that an investor “attempts to make” an investment when that investorhas taken concrete action or actions to make an investment, such as channeling resources or capital in order to set up abusiness, or applying for permits or licenses.17-4

Article 17.2: Scope1.This Chapter applies to a measure adopted or maintained by a Party relating to:(a)a financial institution of another Party;(b)an investor of another Party, and an investment of that investor, in a financialinstitution in the Party’s territory; and(c)cross-border trade in financial services.2.Chapter 14 (Investment) and Chapter 15 (Cross-Border Trade in Services) apply to ameasure described in paragraph 1 only to the extent that those Chapters are incorporated intothis Chapter.3.(a)Article 14.6 (Minimum Standard of Treatment), Article 14.7 (Treatment in Caseof Armed Conflict or Civil Strife), Article 14.8 (Expropriation and Compensation),Article 14.9 (Transfers), Article 14.13 (Special Formalities and InformationRequirements), Article 14.14 (Denial of Benefits), Article 14.16 (Investment andEnvironmental, Health, Safety, and other Regulatory Objectives), and Article 15.11(Denial of Benefits) are incorporated into and made a part of this Chapter.(b)Article 15.12 (Payments and Transfers) is incorporated into and made a part of thisChapter to the extent that cross-border trade in financial services is subject toobligations pursuant to Article 17.3.3 (National Treatment), Article 17.5.1(b) and(c) (Market Access), and Article 17.6 (Cross-Border Trade Standstill).This Chapter does not apply to a measure adopted or maintained by a Party relating to:(a)an activity or a service forming part of a public retirement plan or statutorysystem of social security; or(b)an activity or a service conducted for the account or with the guarantee or usingthe financial resources of the Party, including its public entities,except that this Chapter applies to the extent that a Party allows an activity or service referredto in subparagraph (a) or (b) to be conducted by its financial institutions in competition with apublic entity or a financial institution.4.This Chapter does not apply to government procurement of financial services.5.This Chapter does not apply to a subsidy or a grant provided by a Party, including agovernment supported loan, guarantee, and insurance, with respect to the cross-border supply offinancial services by a cross-border supplier of another Party.17-5

Article 17.3: National Treatment1.Each Party shall accord to investors of another Party treatment no less favorable thanthat it accords to its own investors, in like circumstances, with respect to the establishment,acquisition, expansion, management, conduct, operation, and sale or other disposition of financialinstitutions, and investments in financial institutions in its territory.2.Each Party shall accord to financial institutions of another Party, and to investments ofinvestors of another Party in financial institutions, treatment no less favorable than that it accordsto its own financial institutions, and to investments of its own investors in financial institutions, inlike circumstances, with respect to the establishment, acquisition, expansion, management, conduct,operation, and sale or other disposition of financial institutions and investments.3.Each Party shall accord to:(a)financial services or cross-border financial service suppliers of another Partyseeking to supply or supplying the financial services as specified by the Party inAnnex 17-A (Cross-Border Trade); and(b)financial services or cross-border financial service suppliers of another Partyseeking to supply or supplying financial services subject to paragraph 4,treatment no less favorable than that it accords to its own financial services and financial servicesuppliers, in like circumstances.4.Subparagraph 3(b) does not require a Party to permit a cross-border financial servicesupplier of another Party to do business or solicit in the Party’s territory. A Party may define“doing business” and “solicitation” in its law for the purposes of this paragraph.5.The treatment to be accorded by a Party under paragraphs 1, 2, and 3 means, with respectto a government other than at the central level, treatment no less favorable than the most favorabletreatment accorded, in like circumstances, by that government to financial institutions of the Party,investors of the Party, and investments of those investors, in financial institutions; or financialservices or financial service suppliers, of the Party.6.For greater certainty, whether treatment is accorded in “like circumstances” under thisArticle depends on the totality of the circumstances, including whether the relevant treatmentdistinguishes between investors in financial institutions, investments in financial institutions,financial institutions, or financial services or financial service suppliers on the basis of legitimatepublic welfare objectives.17-6

Article 17.4: Most-Favored-Nation Treatment1.Each Party shall accord to:(a)investors of another Party, treatment no less favorable than that it accords toinvestors of any other Party or of a non-Party, in like circumstances;(b)financial institutions of another Party, treatment no less favorable than that itaccords to financial institutions of any other Party or of a non-Party, in likecircumstances;(c)investments of investors of another Party in a financial institution, treatment noless favorable than that it accords to investments of investors of any other Partyor of a non-Party in financial institutions, in like circumstances; and(d)financial services or cross-border financial service suppliers of another Party,treatment no less favorable than that it accords to financial services and crossborder financial service suppliers of any other Party or of a non-Party, inlike circumstances.2.The treatment to be accorded by a Party under paragraph 1 means, with respect to agovernment other than at the central level, treatment no less favorable than the most favorabletreatment accorded, in like circumstances, by that government to financial institutions of anotherParty or a non-Party; investors of another Party or a non-Party, and investments of those investors,in financial institutions; or financial serv

17-1 CHAPTER 17 FINANCIAL SERVICES. Article 17.1: Definitions. For the purposes of this Chapter: computing facility means a computer server or storage device for the processing or storage of information for the conduct of business within the scope of the license, authorization, or