Wikileaks Publication 🌏 TiSA Core Text draft

Description and explanation

TiSA

TRADE IN SERVICES AGREEMENT

PREAMBLE

[CH: 1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Agreement. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.

1. Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.]

Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.

1. Parties recognize the right to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet their [CR/LI/MX/TR propose: public] policy objectives.

[CH/HK/MX/TR propose: 2. AU/CA/CL/CO/CR/EU/JP/NO/PA/US oppose: Nothing in these
disciplines prevents Parties from exercising the right to introduce or maintain regulations in
order to ensure provision of universal service [HK propose:, in a manner consistent with their
obligations and commitments under this Agreement].]

The group has agreed to move the provision above from the DR Annex to the core text, and will further discuss if it should appear as part of the preamble or as a provision.

Recognizing the right to regulate for the purpose of ensuring provision of universal service is subsumed under a Party's right to regulate, all parties except TR prefer to remove the last bracketed text of this Article.

1. [US propose; AU/CH/HK/JP/KR/NO/NZ/PE/PK oppose; CA/CL/CO/CR/EU/IS/MX/PA/TR/TW/UY considering: [In sectors where specific commitments are undertaken,][Subject to any [terms, limitations,] conditions or qualifications set out in its schedule]] Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.]

The group has agreed to move the provision above from the DR Annex to the core text.
The proponent will reflect further on its proposed bracketed text (in italics) in light of the hybrid scheduling approach of this agreement.

[AU/CA/CH/CR/CL/CO/EU/HK/IL/IS/JP/KR/LI/MX/NO/NZ/PA/PE/PK/TR/TW/US/UY propose:

1. Each Party shall maintain [AU/CA/CO/EU/JP/LI/MX/PE/TR/US oppose: or institute as soon as practicable] judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.]

EU comment: does not support placement of this provision in the core text part 1

1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of Paragraph 3, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. 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.

2. A Party that is a party to an agreement or arrangement of the type referred to in Paragraph 1, whether existing or future, shall afford adequate opportunity for any other Party, upon request, to negotiate their accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for any other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Party’s territory should be recognized

1. 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 authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services.

2. Each Party shall:
   (a) within 12 months from the date on which the Agreement takes effect for it, inform the [Working Party on Professional Services] of its existing recognition measures and state whether such measures are based on agreements or arrangements of the type referred to in Paragraph 1;
   (b) promptly inform the [Working Party on Professional Services] as far in advance as possible of the opening of negotiations on an agreement or arrangement of the type referred to in Paragraph 1 in order to provide adequate opportunity to any other Party to indicate their interest in participating in the negotiations before they enter a substantive
   phase;
   (c) promptly inform the [Working Party on Professional Services] when it adopts new recognition measures or significantly modifies existing ones and state whether the measures are based on an agreement or arrangement of the type referred to in Paragraph 1.

3. Wherever appropriate, recognition should be based on multilaterally agreed criteria. In appropriate cases, Parties shall work in cooperation with relevant intergovernmental and non-governmental organizations towards the establishment and adoption of common international standards and criteria for recognition and common international standards for the practice of relevant services trades and professions.

1. Except under the circumstances envisaged in Article I-8, a Party shall not apply restrictions on
   international transfers and payments for current transactions relating to its [specific commitments.

1. Nothing in this Agreement shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its [specific] commitments regarding such transactions, except under Article I-9 or at the request of the Fund.

1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on trade in services on which it has undertaken [specific] commitments, including on payments or transfers for transactions related to such commitments. It is recognized that particular pressures on the balance of payments of a Party in the process of economic development or economic transition may necessitate the use of
   restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its program of economic development or economic transition.

2. The restrictions referred to in paragraph 1:
   (a) shall not discriminate among Parties;
   (b) shall be consistent with the Articles of Agreement of the International Monetary Fund;
   (c) shall avoid unnecessary damage to the commercial, economic and financial interests of any other Party;
   (d) shall not exceed those necessary to deal with the circumstances described in paragraph 1;
   (e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.

3. In determining the incidence of such restrictions, Parties may give priority to the supply of services which are more essential to their economic or development programs. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.

4. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to [body defined by the Agreement]

1. (a) Parties applying the provisions of this Article shall consult promptly with the [body defined by the Agreement] on restrictions adopted under this Article.
   (b) The [body defined by the Agreement] shall establish procedures (See note 5) for periodic consultations with the objective of enabling such recommendations to be made to the Party concerned as it may deem appropriate.
   (c) Such consultations shall assess the balance-of-payment situation of the Party concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia, such factors as:
   (i) the nature and extent of the balance-of-payments and the external financial
   difficulties;
   (ii) the external economic and trading environment of the consulting Party;
   (iii) alternative corrective measures which may be available.
   (d) The consultations shall address the compliance of any restrictions with paragraph 2, in particular the progressive phaseout of restrictions in accordance with paragraph 2(e).
   (e) In such consultations, all findings of statistical and other facts presented by the International Monetary Fund relating to foreign exchange, monetary reserves and balance of payments, shall be accepted and conclusions shall be based on the assessment by the Fund of the balance-of-payments and the external financial situation of the consulting Party.

2. If a Party which is not a member of the International Monetary Fund wishes to apply the provisions of this Article, the [body defined by the Agreement] shall establish a review procedure and any other procedures necessary.]

AU: Paragraphs 4 to 6 subject to further discussion on institutional provisions.


Article [...] Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under Article [...] (MFN) and [specific] commitments.

---

Note 5 It is understood that the procedures under paragraph 5 shall be the same as the GATT 1994 procedures
Page 12

---

1. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's [specific] commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.

2. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect, (a) authorizes or establishes a small number of service suppliers and
   (b) substantially prevents competition among those suppliers in its territory.

Article I-9: General Exceptions

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures:

(a) necessary to protect public morals or to maintain public order; (See note 6)

(b) necessary to protect human, animal or plant life or health;

(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:

(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;

(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;

(iii) safety;

(d) inconsistent with Article I-4 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective (See note 7) imposition or collection of direct taxes in respect of

---

Note 6 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.

Note 7 Measures that are aimed at ensuring the equitable or effective imposition or collection of direct taxes include measures taken by a Party under its taxation system which:
(i) apply to non-resident service suppliers in recognition of the fact that the tax obligation of non-residents is determined with respect to taxable items sourced or located in the Party’s territory; or
(ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Party’s territory; or services or service suppliers of other Parties;

Page 13

---

(e) inconsistent with Article [...], provided that the difference in treatment is the result of an
agreement on the avoidance of double taxation or provisions on the avoidance of double
taxation in any other international agreement or arrangement by which the Party is bound.

Article I-10: Security Exceptions

1. Nothing in this Agreement shall be construed:
   (a) to require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
   (b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
   (i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
   (ii) relating to fissionable and fusionable materials or the materials from which they are derived;
   (iii) taken in time of war or other emergency in international relations; or to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

2. [The [body defined by the Agreement] shall be informed to the fullest extent possible of measures taken under paragraphs 1(b) and (c) and of their termination.]

---

(iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; or
(iv) apply to consumers of services supplied in or from the territory of another Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Party's territory; or
(v) distinguish service suppliers subject to tax on worldwide taxable items from other service suppliers, in
recognition of the difference in the nature of the tax base between them; or
(vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Party's tax base.

Tax terms or concepts in paragraph (d) of Article [...] (General Exceptions) and in this footnote are determined
according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the Party taking the measure

Page 14

---

[Article [..]: Annexes
The Annexes to this Agreement are an integral part of this Agreement].

Might need to be reviewed depending on outcome of discussion on new and enhanced disciplines and to ensure Schedules and other relevant attachments are integral part of the Agreement.

[Article [...] Denial of benefits

A Party 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-Party or of a Party to which the denying Party 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-Party or of a Party to which the denying Party 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-Party or of a Party to which the denying Party 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 Party, or that it is a service supplier of a Party to which the denying Party does not apply the WTO Agreement.]

[GATS Article XIII: Government Procurement

Articles II, XVI and XVII [Articles MFN, MA and NT] shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not a view to commercial resale or with a view to use in the supply of services for commercial sale.]

[Placeholder for subsidies]
Page 15

---

Part II – Scheduling Commitments

Each Party shall adopt a schedule in accordance with the provisions set out in this Part.

Article II-1: Scheduling of Market Access Commitments

In scheduling commitments pursuant to Article I-3 (Market Access), each Party shall set out in Section B of Part I and in Part II of its Schedule the [specific] commitments it undertakes, and any terms, limitations and conditions with respect to sectors where such commitments are undertaken.

Article II-2: Scheduling of National Treatment Commitments

1. In scheduling commitments pursuant to Article I-4 (National Treatment), each Party shall accord to services and service suppliers of any other Party, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers, subject to any conditions and qualifications that the Party shall set out in its Schedule in accordance with paragraphs 2 and 4.

2. The conditions and qualifications on national treatment set out in Section B of Part I or Part II of each Party’s Schedule shall be limited to measures that a Party maintains on the date this Agreement takes effect, or the continuation or prompt renewal of any such measures.

3. If a Party amends a measure referred to in paragraph 2 in a way that reduces or eliminates the inconsistency of that measure with the treatment provided for in Article I-4 (National Treatment), as it existed immediately before the amendment, a Party may not subsequently amend that measure in a way that increases the inconsistency with the treatment provided for in

Article I-4 (National Treatment).
1. Paragraphs 2 and 3 and Article I-4 (National Treatment) do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out in Section A of Part I of each Party’s Schedule.

CH: Switzerland will continue its consultations regarding these provisions and their implications and operationalization under its domestic law.

EU: Depending on outcomes of the discussion on annex on mode 4 a provision on Scheduling of Entry and Temporary Stay of Natural Persons could be introduced here.

Page 16

---

[Article II-3 Scheduling of Measures Inconsistent with both Market Access and National Treatment

[AU/CA/CO/EU/JP/NZ/US propose: Any measure required to be set out in a Party’s Schedule in accordance with both Article II-1 (Scheduling of Market Access Commitments) and Article II-2 (Scheduling of National Treatment Commitments) shall be included] in both the [NZ oppose: column] [NZ propose: part] of the Schedule that relates to Article I-3 (Market Access) and the [NZ oppose: column] [NZ propose: part] of the Schedule that relates to Article 1-4 (National Treatment).]

[Article II-4: Scheduling Additional Commitments]
[Under Discussion]

<strong>EU:</strong> Further horizontal commitments or standards could be introduced here.

Part III – New and Enhanced Disciplines
[...]

[US considering: Article [ ] Treaty of Waitangi

1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in services, nothing in [Part III of] this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favorable treatment to Maori in respect of matters covered by [Part III of] this Agreement including in fulfillment of its obligations under the Treaty of Waitangi.

2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. [Chapter [ ] (Dispute Settlement)] shall otherwise apply to this Article. An [arbitral tribunal] established under [Article [ ] (Establishment of an Arbitral Tribunal)] may be requested by a Party to determine only whether any measure (referred to in Paragraph 1) is inconsistent with its rights under this Agreement.

Page 17

---

Part IV – Institutional Provisions

Section 1: Resolution of disputes
[...]
Section 2: Future participation to this Agreement
[...]
Section 3: Multi-Lateralization
[...]
Section 4: Institutional provisions
[including: review/modification of schedules...]


TW: With respect to Australia’s proposal on Article I-2 (p), we propose an alternative here to deal with all the terms not defined by the TiSA, in the case that the TiSA Parties deem it necessary and appropriate to harmonize the WTO and the TiSA interpretations.

[TW propose: Article IV-x: Interpretations

Unless the context otherwise requires, any terms used but not defined in this Agreement shall have the
meaning given to such terms in the WTO Agreement and the Multilateral Trade Agreements annexed to
it, and as informed by the WTO jurisprudence mutatis mutandis.]

---



Notes from @ausbitbank

Congrats on making it this far - I know, its a long heavy read - its a draft contract afterall !

Please show your support for wikileaks by upvoting and resteeming, and discuss in the comments below!


All funds raised by @steemleak are donated to wikileaks - for more information see steemleak.com