CHAPTER 11

FINANCIAL SERVICES

Article 11.1: Definitions

For the purposes of this Chapter:

cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such a service;

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

 (a)       from the territory of a Party into the territory of another Party; (b)       in the territory of a 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 an investment in that territory;

financial institution means any financial intermediary or other enterprise that is authorised to do business and regulated or supervised as a financial institution under the law of the Party 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 persons of another Party;

financial service means any service of a financial nature.   Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), 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 and claim settlement services;

Banking and other financial services (excluding insurance)

(e)       acceptance of deposits and other repayable funds from the public; (f)        lending of all types, including consumer credit, mortgage credit,

factoring and financing of commercial transaction; (g)       financial leasing;

(h)       all  payment  and  money transmission services,  including credit, charge and debit cards, travellers cheques and bankers drafts;

 (i)        guarantees and commitments;

 (j)        trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

 (i)        money   market   instruments   (including   cheques,   bills, certificates of deposits);

 (ii)       foreign exchange;

 (iii)     derivative products, including futures and options;

 (iv)      exchange  rate  and  interest  rate  instruments,  including products such as swaps, 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   and   placement   as   agent   (whether   publicly   or privately) and provision of services related to such issues;

(l)        money broking;

 (m)      asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust 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 and  related  software  by suppliers  of  other  financial services; and

 (p)       advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;

financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;

investment means “investment” as defined in Article 9.1 (Definitions), except that, with respect 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 only if it is treated as regulatory capital by the Party in whose territory the financial institution is located; and

 (b)       a  loan  granted  by  or  debt  instrument  owned  by  a  financial institution, other than a loan to or debt instrument issued by a financial institution referred to in subparagraph (a), is not an investment;

for greater certainty, a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment for the purposes of Chapter 9 (Investment), if such loan or debt instrument meets the criteria for investments set out in Article

9.1 (Definitions);

investor of a Party means a Party, or a person of a Party, that attempts to make1, is making, or has made an investment in the territory of another Party;

1   For greater certainty, the Parties understand that an investor “attempts to make” an investment when that investor has taken concrete action or actions to make an investment, such as channelling resources or capital in order to set up a business, or applying for permits or licenses.

new  financial  service  means  a  financial  service  not  supplied  in  the  Party’s territory that is supplied within the territory of another Party, and includes any new form of delivery of a financial 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 1.3 (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 any financial institution that is owned or controlled by a Party; and

self-regulatory organisation means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organisation or association,  that  exercises  regulatory  or  supervisory  authority  over  financial service suppliers or financial institutions by statute or delegation from central or regional government.

Article 11.2: Scope

1.        This Chapter shall apply to measures adopted or maintained by a Party relating to:

 (a)       financial institutions of another Party;

 (b)       investors of another Party, and investments of those investors, in financial institutions in the Party’s territory; and

 (c)       cross-border trade in financial services.

2.        Chapter 9 (Investment) and Chapter 10 (Cross-Border Trade in Services) shall apply to measures described in paragraph 1 only to the extent that those Chapters or Articles of those Chapters are incorporated into this Chapter.

 (a)       Article   9.6   (Minimum   Standard   of   Treatment),   Article   9.7 (Treatment in the Case of Armed Conflict or Civil Strife), Article

9.8 (Expropriation and Compensation), Article 9.9 (Transfers), Article 9.14 (Special Formalities and Information Requirements), Article 9.15 (Denial of  Benefits), Article 9.16 (Investment and Environmental,  Health  and  other  Regulatory  Objectives)  and Article 10.10 (Denial of Benefits) are hereby incorporated into and made a part of this Chapter.

(b)       Section B of Chapter 9 (Investment) is hereby incorporated into and made a part of this Chapter2 solely for claims that a Party has breached Article 9.6 (Minimum Standard of Treatment)3, Article

9.7 (Treatment in the Case of Armed Conflict or Civil Strife), Article 9.8 (Expropriation and Compensation), Article 9.9 (Transfers), Article 9.14 (Special Formalities and Information Requirements) and Article 9.15 (Denial of Benefits) incorporated into this Chapter under subparagraph (a).4

 (c)       Article 10.12 (Payments and Transfers) is incorporated into and made a part of this Chapter to the extent that cross-border trade in financial services is subject to obligations pursuant to Article 11.6 (Cross-Border Trade).

3.        This Chapter shall not apply to measures adopted or maintained by a Party relating to:

 (a)       activities or services forming part of a public retirement plan or statutory system of social security; or

 (b)       activities  or  services  conducted  for  the  account  or  with  the guarantee or using the financial resources of the Party, including its public entities,

except that this Chapter shall apply to the extent that a Party allows any of the activities or services referred to in subparagraph (a) or (b) to be conducted by its financial institutions in competition with a public entity or a financial institution.

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