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2010/TEL42/LSG/WKSP/003

Japan’s EPA / FTA Policy: The Approach of Leading Industrial Nations to FTAs and Other Trade

Negotiations in Telecoms

Submitted by: Japan

Capacity Building on Telecommunication Elements of RTA/FTAs

Bandar Seri Begawan, Brunei Darussalam 3 August 2010

10/07/2010

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ffThe Approach of Leading Industrial The Approach of Leading Industrial Nations to FTAs and Other Trade Nations to FTAs and Other Trade

Negotiations in TelecomsNegotiations in Telecoms--Japan’s EPA / FTA PolicyJapan’s EPA / FTA Policy--

3rd August 2010

Naoki Ishii(Ministry of Internal Affairs and Communications (MIC), Japan)

EPA : Economic Partnership Agreement An EPA, concluded between two countries or multiple countries, is aimed at promoting the

liberalization of trade and investment in the region as well as strengthening broad economic relations including the abolition of internal and external regulations and harmonization of various economic systems.

EPA : Economic Partnership AgreementEPA : Economic Partnership AgreementEPA : Economic Partnership AgreementEPA : Economic Partnership Agreement

FTA : Free Trade AgreementFTA : Free Trade Agreement

A FTA is concluded between various countries and regions to reduce/remove tariffs and other obstacles to trade in goods and services

Abolition of

Abolition of Investment Regulation

/Establishment of Investment

Rules

Harmonization of Intellectual

Property Institutions and

Competition Policies

Abolition of Tariffs

Abolition of the

Restriction on Foreign Investment

Expansion of Human Exchange

Collaboration in Various

Areas

etc. etc.

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Japan’s EPA / FTAs

Japan

Mexico

Malaysia

SwitzerlandKorea

Si

ThailandASEANASEAN(as a whole)

India

Brunei

Vietnam

GCC

Indonesia

Philippines

Peru

11 EPAs concluded

5 EPA Negotiations ongoing

Australia

Singapore

Chile

Peru

Current Status of EPA / FTAs

・Entered into f orce on 3 Sep. 2007.

・Entered into f orce on 30 Nov . 2002.・The Protocol amending the Agreement was entered into f orce on 2 Sep. 2007.・Diplomatic Notes exchanged on 27 Nov . 2007 and was entered into f orce on 1 Jan. 2008.

Malaysia

２００９２００８２００７２００６

Mexico

Singapore

・Entered into f orce on 1 Apr. 2005.・The Protocol related to improv ement of market access conditions was entered into f orce in Apr. 2007.

Entered into f orce on 1 Apr. 2005

Jul.

Entered into f orce on30 Nov . 2002

ChileFeb.

Sep.

The Protocol amending the Agreement was entered into f orce on 2 Sep. 2007.

・Entered into f orce on 13 Jul. 2006.

The Protocol related to improv ement of market access conditions was entered into f orce in Apr. 2007

Signedin Mar.

Signed

EP

As

２０１０

Philippines

・Entered into f orce on 31 Jul. 2008.

・Entered into f orce f or Japan, Singapore, Laos, Vietnam and My anmar on 1 Dec. 2008, f or Brunei on 1 Jan. 2009, f or Malay sia on 1 Feb. 2009 , f or Thailand on 1 Jun 2009 and f or Cambodia on 1 December 2009.

Thailand

Brunei

Indonesia

・Entered into f orce on 1 Nov . 2007.

・Entered into f orce on 1 Jul. 2008.

ASEAN (as a whole)

Jun.

Nov .

Dec.

・Entered into f orce on 11 December 2008.

Switzerland ・Entered in to f orce on 1 September 2009.Preparatory

Meeting

Mar.

Jun.

Signedin Apr.

Jul.

Jul.Signedin Jun.

Dec.Signedin Sep.

Signing completedin Apr.

Signed

Signedin Feb.

May

Signedin Aug.

？

s e

nte

red

into

forc

e

Sep.

Oct.

・The 11th round of negotiation was held in April 2010.

・Entered into f orce on 1 October 2009.

・The 13th round of negotiation was held in April 2010.

・Although no negotiations have been held since the end of the 6th round held in November 2004, the 4th working-level consultation was held in December 2009 to consider and create a favorable environment for the resumption of negotiations.

：Preliminary studies/ government-involved joint studies ：Negotiations ongoing ：EPAs entered into force

：Under discussion in the Diet

Vietnam

ＧＣＣ

Australia

India

PreparatoryMeeting

Korea ？

？

Jun.

Apr.

？

？

(Saudi Arabia, UAE, Kuwait、,Oman, Bahrain, Qatar)

in Dec.

Peru Preparatory Meeting

May.Mar.

・The 5th round of negotiation was held in February 2010.

May Sep.

・The 2nd round of negotiations was held in January 2007.

Ne

go

tiatio

ns

o

ng

oin

g

？

？

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EPA / FTAs under negotiation

StatusStatus

KoreaKoreaDec.2003: negotiation startedNov.2004: negotiation are suspendedSi J 2008 4 d f fid b ildi t lkSince Jun.2008 - 4 rounds of confidence building talks

GCCGCCSep.2006: negotiation startedMar.2009: 6th round of talks

IndiaIndiaJan.2007 negotiation startsApr.2010 13th rounds of talks

AustraliaAustraliaApr.2007 negotiation startsApr.2010: 11th round of talks

PeruPeruMay.2009 negotiation startsFeb.2010: 5th round of talks

Construction of EPA / FTA

○ General Provision

○ Cooperation

Negotiation AreasNegotiation Areas Interests among Telecom BusinessInterests among Telecom Business(Example)(Example)

○○ Cooperation of ICTCooperation of ICT○ Market Access, Tariff

○ SPS/TBT

○ Service

○ Intellectual Property Right

○ E-commerce

○ Business Environment

○ G t P t

○○ Tariff on ICT related GoodsTariff on ICT related Goods

○○ Technical StandardTechnical Standard

○○ Telecom Business PolicyTelecom Business Policy

○○ Internet Service ProviderInternet Service Provider

○○ Electrical SignatureElectrical Signature

○ Government Procurement

○ Dispute Settlement

○ Competition

○ Investment ○○ Investment in Telecom Investment in Telecom BusinessBusiness

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Trade in Services in Japan's existing EPA / FTAs

Format ofScheduling(Positi

ve / Negative)

Movement ofNaturalPersons

Financial Services Telecommunication

Singapore（effective as of 30th Nov, 2002）

○ ○ －

△（Consideration

clause）－ Positive List ○ Annex Annex

・Protocol for amedement ofimplementation of theagreement exchanged inM h 2007

Country（Current status）

Major Obligations Annex

NoteMA NT LP MFN Standstill

Format of Schedule ofSpecific Commitments /

Reservation ListOther Annexes

March, 2007

Mexico（effective as of 1st Apr, 2005）

－ ○ ○ ○ － Negative List ○ Independent Chapter

・Protocol for amedement ofimplementation of theagreement exchanged inApril, 2007

・Mode 3 covered in theInvestment Chapter.

Malaysia（effective as of 13th July, 2006）

○ ○ － ○ ○ Positive List Ｘ Annex

Chile（effective as of 3rd Sep, 2007）

－ ○ ○ ○ － Negative List ○ Independent Chapter ・Mode 3 covered in theInvestment Chapter

Thailand（effective as of 1st Nov, 2007）

○ ○ －

△（Consideration

clause）○ Positive List ○ None

・List of transparency(exchanged & published inNovember 2007)

Indonesia（effective as of 1st July, 2008）

○ ○ － ○ ○ Positive List ○ Annex

Philippines（Effective as of 11th December,

2008）○ ○ － ○ ○ Positive List ○ Annex ・List of transparency

Brunei（Effecrtive as of 31st July, 2008）

○ ○ － ○ － Positive List Ｘ Annex・List of transparency(exchanged & published inJune 2010)

Switzerland（Effective as of September, 2009）

○ ○ －○

－ Negative List ○ Annex Annex・Mode 3 covered both inServices Trade Chapter andin Investment Chapter

Vietnam（Effective as of October, 2009）

○ ○ － ○ － Positive List ○ Annex

Format of Scheduling (Positive List)

Positive list uses a similar format with Schedule adopted in WTO/GATS Under the EPAs , Japan lists more liberalized commitments than ones scheduled in WTO.Section of “Stand Still” is added to Schedule for some EPAs.

Modes of supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons

Sector or subsector SSLimitations on market access

Limitations on national treatmentAdditional

Sector or subsector SS Limitations on national treatmentcommitments

2. COMMUNICATION SERVICES C. Telecommunications Services Basic telecommunications services:

a) Voice telephone services; (7521)

b) Packet-switched data transmission services;

(7523**)

c) Circuit-switched data transmission services; (7523**)

SS

1) None 2) None 3) None except that foreign capital

participation, direct and/or indirect, in Nippon Telegraph and Telephone Corporation (NTT)1 must be less than one-third.

4) None

1) None 2) None 3) None except that board members and

auditors in NTT and the Regional Companies are required to have Japanese nationality.

4) None

Japan undertakes the ADDITIONAL COMMITMENTS described below.

SS: Stand Still

Commitment

(7523 )

d) Telex services; (7523**)

f) Facsimile services; (7521**, 7529**)

g) Private leased circuit services; and (7522**, 7523**)

o) Other

)

)

Service Sectors classified

by Services Sectoral

Classification List (GATT

Document

MTN.GNS/W/120,CPC)

Explanations of the existing

measures not conforming to

market access obligations. To

be described by four modes of

supply in services for each

sectors or subsectors.

Explanations of the existing

measures not conforming to

national treatment obligations.

To be described by four modes

of supply in services for each

sectors or subsectors.

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Format of Scheduling (Negative List)

Since only “no” liberalization contents are scheduled in Negative List, Negative List has higher degree of freedom than Positive List.

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Sector: Sub-Sector: Industry Classification: Type of Reservation:

Information and Communications Telecommunications JSIC 3721 Regional telecommunications,

except wired broadcast telephones

JSIC 3741 Services incidental

to telecommunications National Treatment (Article [ ])

Generally, two types of Negative Lists, “standstill reservations” and ”future reservations” are set up.

Negative List can be used in the Annex of Investment Chapter, so content may overlap. (In this case, overlapping application is accepted.)

Reservation: Level of Government: Measures: Description:

National Treatment (Article [ ]) Market Access(Article [ ]) Central Government Law Concerning Nippon Telegraph and Telephone Corporation, etc (Act No. 85 of 1984), Articles 6 and 10 Trade in Services 1. Nippon Telegraph and Telephone Corporation may not enter the name and address in its register of shareholders if the aggregate of the ratio of the voting rights directly and/or indirectly held by the persons set forth in subparagraphs (a) through (c) reaches or exceeds one third: (a) a natural person who does not have Japanese nationality; (b) a foreign government or its representative; and (c) a foreign legal person or a foreign entity. 2. Any natural person who does not have Japanese nationality may not assume the office of director or auditor of Nippon Telegraph and Telephone Corporation, Nippon Telegraph and Telephone East Corporation and Nippon Telegraph and Telephone West Corporation.

*JSIC : Japan Standard Industrial Classification

“More Competitive” Reference Paper

Reference Paper is similar in formatting with that of WTO, but its content is substantially improved and highly-liberalized text.

◆Domestic regulations are easily reflected but regulations of the partner country can’t be reflected.

Reference PaperReference PaperReference PaperReference PaperInterconnectionInterconnectionUniversal ServiceUniversal ServiceIndependent Regulator etc.Independent Regulator etc.

++

WTO RulesEPA Additional Commitment on

Telecom Services

++Additional ProvisionsAdditional Provisions(Co(Co--location, Reference location, Reference

Interconnection Offer, …)Interconnection Offer, …)

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Telecommunication Chapter / Annex◆Japan-Singapore EPA and Japan-Switzerland EPA set “Telecommunication Chapter/ Annex” stipulating the

liberalization content for telecommunications sector comprehensively, which guarantees a higher level of liberalization.

◆Under the EPA (with India, Peru and Australia), currently in negotiations, Telecommunication Chapter/Annex is agreed to be instituted and contents are on a negotiating process.

GATSGATSTelecommunication AnnexTelecommunication Annex

GATSGATSTelecommunication AnnexTelecommunication Annex

Access and UseAccess and UseTransparency etc.Transparency etc.

InterconnectionInterconnectionUniversal ServiceUniversal ServiceIndependent Regulator etc.Independent Regulator etc.

Reference PaperReference PaperReference PaperReference Paper

WTO Rules EPA Telecom Chapter / Annex

++Other ProvisionsOther Provisions

(Resale, Co(Resale, Co--location, Leased Circuit location, Leased Circuit Service, …)Service, …)

*Both parts include additional provisions.

Example : Japan – Switzerland EPA

Number PortabilityNumber PortabilityEach Party shall, in accordance with its laws and regulations, ensure that suppliers of p blic telecomm nications transport net orks or ser ices in its Area pro ide n mber

Examples of “Other Provisions” are following:

public telecommunications transport networks or services in its Area provide number portability for the services designated by that Party, to the extent technically feasible, on a timely basis and on reasonable terms and conditions.

Consumer and Data ProtectionConsumer and Data Protection1. Recognising the need to create an environment of trust and confidence in the use

of telecommunications services, each Party shall, in accordance with its laws and g l tiregulations:

a. ensure that suppliers of telecommunications services in its Area take appropriate measures to protect personal data, including individual records and accounts; and

b. take appropriate and necessary measures to fight against unsolicited electronic messages, including electronic mails, sent for advertising purposes to a large number of recipients and without their consent.

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Possible Elements in Telecom Chapter / Annex

Access and UseSubmarine CablesRights to use other persons

landNumber Portability

Access to Facilities Independent RegulatorUniversal ServiceLicensing ProcessAllocation and Use of Scarce Number Portability

Dialing Parity (including Carrier Pre-subscription Function)Competitive SafeguardsTreatment by Major SupplierResale

Allocation and Use of Scarce ResourcesTransparencyUnsolicited Electronic MailEnforcementDispute SettlementFlexibility in the Choice of Resale

InterconnectionUnbundling of Network

ElementsLeased Circuit ServicesCo-Location

Flexibility in the Choice of TechnologiesRelation to International

OrganizationsSub-Committee on

Telecommunications*in no particular order

Thank You!Thank You!

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Background Information : Japanese Anti-Spam Law

The anti-spam law was established in 2002 in response to the social problem of spam (Opt-out regulation).

The law was amended in 2005 and 2008 to make it more effective.

The Act on Regulation of the Transmission of Specified Electronic MailThe Act on Regulation of the Transmission of Specified Electronic Mail(Act No. 26 of April 17, 2002) (Act No. 26 of April 17, 2002)

The 2005 amendment expanded the scope of the law.- Spam sent to addresses used for business purposes came to be included within the scope of the law.

The 2008 amendment introduced an opt-in regulation.

Technical measures

International cooperation

Sending consigners

Senders

ASP for distributing advertisement

mails

ISP(Senders’ side)

ISP(Recipients’ side) Recipients

Voluntary measures by ISPs

Airing and edification activitiesLaw enforcement

Example of Telecommunication Chapter / Annex Agreement on Free Trade and Economic Partnership between Japan and the Swiss Confederation

Chapter X

Telecommunications Article X.01: Definitions

For purposes of this Chapter: cost-oriented means based on cost, including a reasonable profit, and may involve different cost methodologies for different facilities or services; enterprise means an “enterprise” as defined in Article X (Initial Provisions and General Definitions – Definitions of General Application) and a branch of an enterprise; essential facilities means facilities of a public telecommunications transport network or service that:

(a) are exclusively or predominantly provided by a single or a limited number of suppliers; and

(b) cannot feasibly be economically or technically substituted in order to supply a service; interconnection means linking suppliers providing public telecommunications transport networks or services to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier; intra-corporate communications means telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to a Party’s domestic law, affiliates, but does not include a commercial or non-commercial service that is supplied to a company that is not a related subsidiary, branch or affiliate or that is offered to a customer or potential customer; for purposes of this definition, “subsidiaries”, “branches” and, where applicable, “affiliates” are as defined by each Party in its domestic laws; leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of or availability to a particular customer or other users of the customer’s choosing; major supplier means a supplier that has the ability to materially affect the terms of participation having regard to price and supply in the relevant market for public telecommunications transport networks or services as a result of:

(a) control over essential facilities; or

(b) the use of its position in the market;

network termination points means the final demarcation of the public telecommunications transport network at the user’s premises; non-discriminatory means treatment no less favourable than that accorded to another user of like public telecommunications transport networks or services in like circumstances; public telecommunications transport network means the public telecommunications infrastructure that permits telecommunications between and among defined network termination points;

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public telecommunications transport service means a telecommunications transport service required, explicitly or in effect, by a Party to be offered to the public generally that involves the real-time transmission of customer-supplied information between two or more points without an end-to-end change in the form or content of the customer's information. Such services may include, inter alia, telegraph, telephone, telex, and data transmission; regulatory body means the body of a Party that is responsible for the regulation of telecommunications; service supplier means a person of a Party who is seeking to supply or who supplies a service, including a supplier of telecommunications transport networks or services; supply of a service means providing a service:

(a) from the territory of a Party into the territory of the other Party;

(b) in the territory of a Party by a person of that Party to a person of the other Party;

(c) by a service supplier of a Party, through an enterprise in the territory of the other Party; or

(d) by a national of a Party in the territory of the other Party;

telecommunications means the transmission and reception of signals by electromagnetic means; user means a subscriber for public telecommunications transport services or a service supplier; and value-added service means a service that adds value to public telecommunications transport services through enhanced functionality, by:

(a) acting on the format, content, code, protocol or similar aspects of a customer’s

transmitted information;

(b) providing a customer with additional, different or restructured information; or

(c) providing a customer interaction with stored information. Article X.02: Scope of Application 1. This Chapter applies to:

(a) a measure adopted or maintained by a Party in relation to accessing and using a public telecommunications transport network or service;

(b) a measure adopted or maintained by a Party relating to an obligation of a supplier of

a public telecommunications transport network or service;

(c) any other measure adopted or maintained by a Party relating to a public telecommunications transport network or service; and

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(d) a measure adopted or maintained by a Party relating to the supply of a value-added service.

2. This Chapter does not apply to a measure of a Party affecting the transmission by electromagnetic means, including broadcast and cable distribution, of radio or television programming intended for reception by the public.

3. This Chapter does not:

(a) require a Party to authorize a service supplier of the other Party to establish, construct, acquire, lease, operate or supply a telecommunications transport network or service, other than as specifically provided in this Agreement;

(b) require a Party to establish, construct, acquire, lease, operate or supply a

telecommunications transport network or service not offered to the public generally;

(c) require a Party to compel a service supplier to establish, construct, acquire, lease, operate or supply a telecommunications transport network or service not offered to the public generally.

Article X.03: Access to and Use of Public Telecommunications Transport Networks or Services 1. Subject to a Party’s right to restrict the supply of a service in accordance with the reservations in its Schedule to Annex I or II, a Party shall ensure that an enterprise of the other Party is accorded access to and use of a public telecommunications transport network or service on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 7. 2. Each Party shall ensure that an enterprise of the other Party has access to and use of a public telecommunications transport network or service offered within or across its borders, including private leased circuits, and to this end shall ensure, subject to paragraphs 6 and 7, that the enterprise is permitted to:

(a) purchase, or lease, and attach terminal or other equipment that interfaces with a public telecommunications transport network;

(b) connect private leased or owned circuits with a public telecommunications transport

network or service of that Party or with circuits leased or owned by another enterprise;

(c) use an operating protocol of its choice; and

(d) perform a switching, signalling, or processing function.

3. Each Party shall ensure that an enterprise of the other Party may use a public telecommunications transport network or service for the movement of information in its territory or across its borders, including for intra-corporate communications of such enterprises, and for access to information contained in a data base or otherwise stored in machine-readable form in the territory of either Party. 4. Further to Article X (Exceptions - General Exceptions), a Party may take a measure necessary to:

(a) ensure the security and confidentiality of messages; or

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(b) protect the privacy of users of public telecommunications transport services, 5. A measure taken under paragraph 4 may not be applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade. 6. Each Party shall ensure that no condition is imposed on access to and use of a public telecommunications transport network or service other than as necessary to:

(a) safeguard the public service responsibilities of suppliers of a public telecommunications transport network or service, in particular their ability to make their network or service available to the public generally;

(b) protect the technical integrity of a public telecommunications transport network or

service; or

(c) ensure that an enterprise of the other Party does not supply a service limited by a Party’s reservations in its Schedule to Annex I or II.

7. Provided that they satisfy the criteria set out in paragraph 6, conditions for access to and use of a public telecommunications transport network or service may include:

(a) a restriction on resale or shared use of that service;

(b) a requirement to use a specified technical interface, including an interface protocol, for connection with that network or service;

(c) a requirement, where necessary, for the inter-operability of that service;

(d) type approval of terminal or other equipment that interfaces with the network and

technical requirements relating to the attachment of that equipment to the network;

(e) a restriction on connection of private leased or owned circuits with that network or service or with circuits leased or owned by another enterprise; and

(f) notification, registration and licensing.

Article X.04: Procedures for Licenses and Other Authorizations Where a Party requires a supplier of a public telecommunications transport network or service to have a license, concession, permit, registration, certificate or other type of authorization, that Party shall ensure that:

(a) once the application is considered complete, a decision whether to grant the license concession, permit, registration, certificate or other type of authorization is made within a reasonable period of time; and,

(b) the reasons for any denial will be communicated to the applicant upon request.

Article X.05: Conduct of Major Suppliers Competitive Safeguards 1. Each Party shall maintain appropriate measures for the purpose of preventing suppliers that, alone or together, are a major supplier from engaging in or continuing anti-competitive practices.

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2. The anti-competitive practices referred to in paragraph 1 include:

(a) engaging in anti-competitive cross-subsidization;

(b) using information obtained from competitors with anti-competitive results; and

(c) not making available to another service supplier, on a timely basis, technical information about essential facilities or commercially relevant information that is necessary for that service supplier to provide a service.

Interconnection 3. Subject to a Party’s reservations in its Schedule to Annex I or II, each Party shall ensure that a major supplier in its territory provides interconnection:

(a) at a technically feasible point in the network; (b) under non-discriminatory terms, conditions (including technical standards and

specifications) and rates;

(c) of a quality no less favourable than that provided to its own like services, for like services of non-affiliated service suppliers or of its subsidiaries or other affiliates;

(d) in a timely fashion, on terms, conditions (including technical standards and

specifications) and cost-oriented rates that are:

(i) transparent and reasonable, having regard to economic feasibility, and

(ii) sufficiently unbundled so that the supplier need not pay for network

components or facilities that it does not require for the services to be supplied; and

(e) upon request, at points in addition to the network termination points offered to the

majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.

Article X.06: Universal Service 1. Each Party has the right to define the universal service obligation that it wishes to adopt or maintain. 2. Each Party shall administer any universal service obligation that it adopts or maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that a universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined. Article X.07: Allocation and Use of Scarce Resources 1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers and rights of way, in an objective, timely, transparent and non-discriminatory manner. 2. Notwithstanding Article X (Cross-Border Trade in Services – Market Access), a Party may adopt or maintain a measure allocating and assigning spectrum and managing frequencies. Accordingly, each Party retains the right to establish and apply its spectrum and frequency

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management policies that may limit the number of suppliers of a public telecommunications transport service. Each Party also retains the right to allocate frequency bands taking into account present and future needs. Article X.08: Regulatory Body 1. Each Party shall ensure that its regulatory body is separate from, and not accountable to, a supplier of a public telecommunications transport network or service or a value-added service. 2. Each Party shall ensure that its regulatory body’s decisions and procedures are impartial with respect to market participants. Article X.09: Enforcement

Each Party shall maintain appropriate procedures and authority to enforce compliance with the Party’s domestic measures relating to the obligations in Articles X.3 and X.5. Those procedures shall include the ability to impose appropriate sanctions, which may include financial penalties, corrective orders or the modification, suspension or revocation of licences. Article X.10: Resolution of Domestic Telecommunication Disputes Recourse to Regulatory Bodies 1. Further to Articles X (Transparency - Administrative Proceedings) and X (Transparency – Review and Appeal), each Party shall ensure that:

(a) a supplier of a public telecommunications transport network or service or value-added service of the other Party has timely recourse to its regulatory body to resolve disputes regarding a measure that relates to matters covered in Articles X.3 and X.5 and that, under the domestic law of the Party, are within the regulatory body’s jurisdiction; and

(b) a supplier of a public telecommunications transport network or service of the other

Party requesting interconnection with a major supplier in the Party’s territory has recourse, within a reasonable and publicly specified period of time after the supplier requests interconnection, to a regulatory body to resolve disputes regarding the appropriate terms, conditions and rates for interconnection with that major supplier..

Reconsideration 2. Each Party shall ensure that a supplier of a public telecommunications transport network or

service or a value-added service aggrieved by the determination or decision of a regulatory body may petition that body for reconsideration of that determination or decision.

3. Paragraph 2 does not apply, with respect to Canada, to a determination or decision related to

the establishment and application of spectrum and frequency management policies. Article X.11: Transparency 1. Further to Articles X (Transparency - Publication) and X (Transparency - Notification and Provision of Information), and in addition to the other provisions in this Chapter relating to the publication of information, each Party shall: (a) ensure that interested persons are provided, to the extent possible, with adequate

advance public notice of, and the opportunity to comment on, any regulation that its regulatory body proposes; and

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(b) make publicly available:

(i) the current state of allocated frequency bands, but detailed identification of frequencies allocated for specific government use is not required; (ii) its measures relating to public telecommunications transport networks or services and, where applicable, value-added services, including:

(A) regulations of its regulatory body and tariffs filed with its regulatory body, together with the basis for such regulations;

(B) relevant procedures of its regulatory body, including those related to interconnection and licensing; (C) licensing criteria, the terms and conditions for licences, and the period of time normally required to reach a decision concerning an application for a licence;

(D) measures relating to tariffs and other terms and conditions of service;

(E) measures relating to specifications of technical interfaces;

(F) measures relating to conditions for attaching terminal or other equipment to a public telecommunications transport network;

(G) measures relating to notification, permit, registration, or licensing requirements, if any; and

(iii) information on bodies responsible for preparing, amending and adopting standards-related measures.

2. Each Party shall ensure that interconnection agreements in force between major suppliers in its territory and another supplier of a public telecommunications network or service in its territory are made publicly available. Article X.12: Forbearance

The Parties recognize the importance of relying on market forces to achieve wide choices in the supply of telecommunications services. To this end, each Party may refrain from applying a regulation to a telecommunications service when:

(a) enforcement of that regulation is not necessary to prevent an unreasonable or discriminatory practice;

(b) enforcement of that regulation is not necessary for the protection of consumers; or

(c) it is consistent with the public interest, including promoting and enhancing competition

between suppliers of a public telecommunications transport network or service.

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Article X.13: Conditions for the Supply of Value-Added Services 1. No Party may require a supplier of value-added services to:

(a) supply those services to the public generally; (b) cost justify its rates; (c) file a tariff; (d) connect its networks with any particular customer or network; or (e) conform with any particular standard or technical regulation for connection other than

for connection to a public telecommunications transport network.

2. Notwithstanding paragraph 1, a Party may take the actions described in subparagraphs (a) through (e) to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anti-competitive under its laws or regulations, or to otherwise promote competition or safeguard the interests of consumers. Article X.14: Relation to Other Chapters

In the event of an inconsistency between this Chapter and another Chapter in this Agreement, this Chapter prevails to the extent of the inconsistency. Article X.15: International Standards and Organizations

The Parties recognize the importance of international standards for global compatibility and interoperability of telecommunication networks or services and undertake to promote those standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.

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Additional Commitment on TELECOMMUNICATIONS SERVICES

1. Scope

The following are definitions and principles on the regulatory framework for the basic telecommunications services.

2 Definitions

(a) the term “telecommunications” means the transmission and reception of signals by any electromagnetic means;

(b) the term “public telecommunications transport service” means any telecommunications transport service required, explicitly or in effect, by (country’s

name) to be offered to the public generally. Such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving

the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the

customer’s information;

（c）the term “public telecommunications transport network” means the public telecommunications infrastructure which permits telecommunications between

and among defined network termination points;

(d) the term “essential facilities” means facilities of a public telecommunications transport network or service that:

(i ) are exclusively or predominantly provided by a single or limited number of suppliers; and

(ii) cannot feasibly be economically or technically substituted in order to provide a service;

(e) the term “major supplier” means a supplier that has the ability to materially affect the terms of participation having regard to price and supply in the relevant

market for basic telecommunications services as a result of:

(i) control over essential facilities; or

(ii) use of its position in the market;

(f) the term “facilities-based suppliers” means 〔telecommunications carriers who establish telecommunications circuit facilities〕;

the term “services-based suppliers” means 〔telecommunications carriers other than the telecommunications carriers defined by subparagraph (f) 〕.

1. Competitive Safeguards

1.1 Prevention of Anti-competitive Practices in Telecommunications

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Appropriate measures shall be maintained for the purposes of preventing suppliers, who alone or together are a major supplier, from engaging in or continuing

anti-competitive practices.

1.2 Safeguards

The anti-competitive practices referred to in subparagraph 1.1 shall include in particular:

(a) engaging in anti-competitive cross-subsidization or pricing services in a manner that gives rise to unfair competition;

(b) discriminating specific persons unfairly in providing telecommunications services;

(c) using information obtained from competitors with

anti-competitive results; and

(d) not making available to other service suppliers on a timely basis technical information about essential facilities and commercially relevant information which

are necessary for them to provide services.

2. Interconnection

2.1 Interconnection to be Ensured

Interconnection shall be ensured between a facilities-based supplier and any other facilities-based supplier or a services-based supplier to the extent provided for

in its laws and regulations.

2.2 Interconnection with Major Suppliers

Interconnection with a major supplier shall be ensured at any technically feasible point in the network. Such interconnection is provided:

(a) under non-discriminatory terms, conditions (including technical standards and specifications) and rates and of a quality no less favorable than that provided

for its own like services, for like services of non-affiliated service suppliers or of its subsidiaries or other affiliates;

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(b) in a timely fashion, on terms, conditions (including technical standards and specifications) and cost-oriented rates that are transparent, reasonable, having

regard to economic feasibility, and sufficiently unbundled (Note) so that the service supplier need not pay for network components or facilities that it does not

require for the services to be provided; and

(Note) “Sufficiently unbundled” network components or facilities include unbundled local loop (including line sharing).

(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction

of necessary additional facilities.

2.3 Co-Location, etc.

It shall be ensured that a major supplier is required to allow other service suppliers who interconnect with the major supplier:

(a) to locate their equipment which is essential for interconnection within the major supplier’s buildings; or

(b) to install their cables and lines which are essential for interconnection within the major supplier’s buildings, conduits, cable tunnels or telephone poles,

where physically feasible and where no practical or viable alternatives exist, in order to interconnect smoothly with the essential facilities of the major supplier.

2.4 Interconnection Pursuant to an Approved Reference Interconnection Offer

It shall be ensured that major suppliers are required to provide a reference interconnection offer for approval by the relevant regulatory authorities. The

reference interconnection offer shall be consistent with the principles of paragraph 1 and shall contain written statements of the charges and conditions on

which a major supplier will interconnect with other service suppliers. At a minimum, the reference interconnection offer shall be required to contain the

following:

(a) a list and description of the interconnection-related services offered, the terms and conditions for such services, the operational and technical

requirements, and the procedures or processes that will be used to order and provide such services;

(b) a list of cost-oriented rates that a major supplier offers for all its interconnection-related services. Where feasible, the major supplier shall be required

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to use an established methodology based on incremental forward-looking economic cost;

(c) standard periods between the dates of request and commencement which are stipulated in a clear manner and are reasonable; and

(d) a statement regarding the duration of the proposed interconnection agreement, if it is fixed.

2.5 Section 2.2, 2.3 and 2.4 are applied only to a major supplier which has control over essential facilities.

2.6 Public Availability of the Procedures for Interconnection Negotiations

It shall be ensured that the procedures applicable for interconnection to a major supplier are made publicly available.

2.7 Transparency of Interconnection Arrangements

It shall be ensured that a major supplier makes publicly available either its interconnection agreements or reference interconnection offer.

2.8 Interconnection Dispute Settlement

A service supplier requesting interconnection with a major supplier shall have recourse, either:

(a) at any time; or

(b) after a reasonable period of time which has been made publicly known,

to an independent domestic body, which may be a regulatory body as referred to in paragraph 5 , to resolve disputes regarding appropriate terms, conditions and

rates for interconnection within a reasonable period of time, to the extent that these have not been established previously.

3. Universal Service

(country’s name) has the right to define the kind of universal service obligation it wishes to maintain. Such obligations shall not be regarded as anti-competitive

per se, provided that they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary

for the kind of universal service defined by ( country’s name)

4. Public Availability of Licensing Criteria

(a) Where a license is required, the following shall be made publicly available:

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(i) all the licensing criteria and the period of time normally required to reach a decision concerning an application for a license; and

(ii) the terms and conditions of individual licenses.

(b) The reasons for the denial of a license shall be made known to the applicant upon request.

5. Independent Regulators

The regulatory body shall be separate from, and not accountable to, any supplier of telecommunications services. The decisions of and the procedures used by

regulators shall be impartial with respect to all market participants.

6. Allocation and Use of Scarce Resources

Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, timely,

transparent and non-discriminatory manner. The current state of allocated frequency bands shall be made publicly available except for detailed identification of

frequencies allocated for specific government uses.