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Participants
in the Uruguay Round have been enabled to take on specific commitments
with respect to financial services under the General Agreement on
Trade in Services (hereinafter referred to as the “Agreement”) on the basis of an alternative approach to that
covered by the provisions of Part III of the Agreement.
It was agreed that this approach could be applied subject to
the following understanding:
(i)
it does not conflict with the provisions of the Agreement;
(ii)
it does not prejudice the right of any Member to schedule its
specific commitments in accordance with the approach under Part III
of the Agreement;
(iii)
resulting specific commitments shall apply on a most-favoured-nation
basis;
(iv)
no presumption has been created as to the degree of
liberalization to which a Member is committing itself under the
Agreement.
Interested Members, on the basis of negotiations, and subject
to conditions and qualifications where specified, have inscribed in
their schedule specific commitments conforming to the approach set out
below.
A.
Standstill
Any conditions, limitations and qualifications to the
commitments noted below shall be limited to existing non-conforming
measures.
B.
Market Access
Monopoly Rights
1.
In addition to Article VIII of the Agreement, the following
shall apply:
Each
Member shall list in its schedule pertaining to financial services
existing monopoly rights and shall endeavour to eliminate them or
reduce their scope. Notwithstanding
subparagraph 1(b) of the Annex on Financial Services, this
paragraph applies to the activities referred to in subparagraph 1(b)(iii)
of the Annex.
Financial Services purchased by Public
Entities
2. Notwithstanding Article XIII of the Agreement, each Member
shall ensure that financial service suppliers of any other Member
established in its territory are accorded most-favoured-nation
treatment and national treatment as regards the purchase or
acquisition of financial services by public entities of the Member in
its territory.
Cross-border Trade
3.
Each Member shall permit non-resident suppliers of financial
services to supply, as a principal, through an intermediary or as an
intermediary, and under terms and conditions that accord national
treatment, the following services:
(a)
insurance of risks relating to:
(i)
maritime shipping and commercial aviation and space launching
and freight (including satellites), with such insurance to cover any
or all of the following: the
goods being transported, the vehicle transporting the goods and any
liability arising therefrom; and
(ii)
goods in international transit;
(b)
reinsurance and retrocession and the services auxiliary to
insurance as referred to in subparagraph 5(a)(iv) of the Annex;
(c)
provision and transfer of financial information and financial
data processing as referred to in subparagraph 5(a)(xv) of the
Annex and advisory and other auxiliary services, excluding
intermediation, relating to banking and other financial services as
referred to in subparagraph 5(a)(xvi) of the Annex.
4.
Each Member shall permit its residents to purchase in the
territory of any other Member the financial services indicated in:
(a)
subparagraph 3(a);
(b)
subparagraph 3(b); and
(c)
subparagraphs 5(a)(v) to (xvi) of the Annex.
Commercial
Presence
5.
Each Member shall grant financial service suppliers of any
other Member the right to establish or expand within its territory,
including through the acquisition of existing enterprises, a
commercial presence.
6.
A Member may impose terms, conditions and procedures for
authorization of the establishment and expansion of a commercial
presence in so far as they do not circumvent the Member’s obligation
under paragraph 5 and they are consistent with the other obligations
of the Agreement.
New
Financial Services
7.
A Member shall permit financial service suppliers of any other
Member established in its territory to offer in its territory any new
financial service.
Transfers of Information and Processing
of Information
8.
No Member shall take measures that prevent transfers of
information or the processing of financial information, including
transfers of data by electronic means, or that, subject to importation
rules consistent with international agreements, prevent transfers of
equipment, where such transfers of information, processing of
financial information or transfers of equipment are necessary for the
conduct of the ordinary business of a financial service supplier.
Nothing in this paragraph restricts the right of a Member to
protect personal data, personal privacy and the confidentiality of
individual records and accounts so long as such right is not used to
circumvent the provisions of the Agreement.
Temporary
Entry of Personnel
9.
(a)
Each Member shall permit temporary entry into its territory of
the following personnel of a financial service supplier of any other
Member that is establishing or has established a commercial presence
in the territory of the Member:
(i)
senior managerial personnel possessing proprietary information
essential to the establishment, control and operation of the services
of the financial service supplier; and
(ii)
specialists in the operation of the financial service supplier.
(b)
Each Member shall permit, subject to the availability of
qualified personnel in its territory, temporary entry into its
territory of the following personnel associated with a commercial
presence of a financial service supplier of any other Member:
(i)
specialists in computer services, telecommunication services
and accounts of the financial service supplier;
and
(ii)
actuarial and legal specialists.
Non-discriminatory
Measures
10.
Each Member shall endeavour to remove or to limit any
significant adverse effects on financial service suppliers of any
other Member of:
(a)
non-discriminatory measures that prevent financial service
suppliers from offering in the Member’s territory, in the form
determined by the Member, all the financial services permitted by the
Member;
(b)
non-discriminatory measures that limit the expansion of the
activities of financial service suppliers into the entire territory of
the Member;
(c)
measures of a Member, when such a Member applies the same
measures to the supply of both banking and securities services, and a
financial service supplier of any other Member concentrates its
activities in the provision of securities services;
and
(d)
other measures that, although respecting the provisions of the
Agreement, affect adversely the ability of financial service suppliers
of any other Member to operate, compete or enter the Member’s market;
provided
that any action taken under this paragraph would not unfairly
discriminate against financial service suppliers of the
Member taking such action.
11.
With respect to the non-discriminatory measures referred to in
subparagraphs 10(a) and (b), a Member shall endeavour not to limit or
restrict the present degree of market opportunities nor the benefits
already enjoyed by financial service suppliers of all other
Members as a class in the territory of the Member, provided
that this commitment does not result in unfair discrimination against
financial service suppliers of the Member applying such measures.
C. National Treatment
1.
Under terms and conditions that accord national treatment, each
Member shall grant to financial service suppliers of any other Member
established in its territory access to payment and clearing systems
operated by public entities, and to official funding and refinancing
facilities available in the normal course of ordinary business.
This paragraph is not intended to confer access to the Member’s
lender of last resort facilities.
2.
When membership or participation in, or access to, any
self-regulatory body, securities or futures exchange or market,
clearing agency, or any other organization or association, is required
by a Member in order for financial service suppliers of any other
Member to supply financial services on an equal basis with financial
service suppliers of the Member, or when the Member provides directly
or indirectly such entities, privileges or advantages in supplying
financial services, the Member shall ensure that such entities accord
national treatment to financial service suppliers of any other Member
resident in the territory of the Member.
D. Definitions
For the purposes of this approach:
1.
A non-resident supplier of financial services is a financial
service supplier of a Member which supplies a financial service into
the territory of another Member from an establishment located in the
territory of another Member, regardless of whether such a financial
service supplier has or has not a commercial presence in the territory
of the Member in which the financial service is supplied.
2.
“Commercial presence” means an enterprise within a
Member’s territory for the supply of financial services and includes
wholly- or partly-owned subsidiaries, joint ventures, partnerships,
sole proprietorships, franchising operations, branches, agencies,
representative offices or other organizations.
3.
A new financial service is a service of a financial nature,
including services related to existing and new products or the manner
in which a product is delivered, that is not supplied by any financial
service supplier in the territory of a particular Member but which is
supplied in the territory of another Member.
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