Course on Trade in Services for Officials of the Andean Community Treatment of Mode 4 in Regional Trade Agreements (RTA) Sherry Stephenson Trade Unit, OAS Bogotá - Colombia May 10-14, 2004

Liberalization of Mode 4 Liberalizing the temporary movement of persons should be easier in regional and bilateral agreements among a small set of countries than at the multilateral level under the WTO QUESTION: Has this been the case in practice ?

Mode 4 in GATS Article V Article V : Labour Markets Integration Agreements Article V : Labour Markets Integration Agreements This Agreement shall not prevent any of its Members from being a party to an agreement establishing full integration of the labour markets between or among the parties to such an agreement, provided that such an agreement: (a) exempts citizens of parties to the agreement from requirements concerning residency and work permits; (b) is notified to the Council for Trade in Services Source: WTO, GATS text Article V

Mode 4 In Regional and Bilateral Trade Agreements Agreements examined: NAFTA NAFTA US - Chile US - Chile US - Singapore US - Singapore CARICOM CARICOM MEROSUR MEROSUR Andean Community experience to be commented upon separately. Andean Community experience to be commented upon separately.

NAFTA and NAFTA- Type FTA’s Mode 4 Treatment Separate chapter of agreement Separate chapter of agreement Focus is on procedures Focus is on procedures Provision of information Provision of information Grant of temporary entry Grant of temporary entry Regulatory transparency Regulatory transparency Dispute settlement Dispute settlement Definitions Definitions Little or NO liberalizing content “per se” Little or NO liberalizing content “per se”

Structure of NAFTA-like FTA’s for Services in Western Hemisphere Chapter on Cross-Border Trade in Services (Mode 1 &2) Chapter on Telecommunications (With Regulatory Disciplines) Chapter on Investment (Mode 3) Chapter on Temporary Entry for Business Persons (Mode 4) Chapter on Financial Services (Self-Contained) (Investment & Services) List of Reservations – Annexes Annex on Professional Services

NAFTA Type FTA’s Definition of categories covered 1. Business Visitors Persons seeking to engage in : Meeting and Consultations Meeting and Consultations - Research and Design - Growth, Manufacture and Production - Marketing - Sales - Distribution - After – Sales services - General Service ( Financial Services)

2.Trader and Investors Business persons seeking to: - Carry on substantial trade in goods and services between the territory of a Party the person is national and the other Party in which the entry is sought - Operation of an investment to which the business person has committed a substantial amount of capital in a capacity that is supervisory, executive or involves essential skills

3.Intra – Company Transferees Business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate in a capacity that is managerial, executive, or involves specialized knowledge. A Party may required that business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of application

4.Professionals Business person seeking to engage in a business activity as a professional, or to perform training functions related to a particular profession, including seminars. Need to demonstrate the attainment of the minimum educational requirements Need to demonstrate the attainment of the minimum educational requirements

NAFTA Type FTA’s Main features: Temporary stay Little actual liberalization Focus on high-skilled workers Sometimes quotas are established for Professionals Limitations by US US – Mexico5,500 p/year Canada – Mexico - US – Chile1,600 p/year US – Singapore5,400 p/yearMaximum stay 90 days Only those professions listed under Appendix 1603.D1 Note: None of the US trade partners limit the access to US services providers through quotas or length of time.

NAFTA and NAFTA- Type FTA’s Annex on Professional Services Aim: To facilitate recognition of qualifications, diplomas, through Mutual Recognition Agreements (MRA). Covers - Licenses, certificates only for services providers.

Recent Trend in US FTAs No chapter included in recent FTAs on Temporary Movement No chapter included in recent FTAs on Temporary Movement --Case of US-CAFTA --Case of US-Australia FTA Reason: Opposition to negotiating labor entry by USTR when Congress feels that this area should fall under its competence

CARICOM Experience with Liberalization of Mode 4 Skilled Nationals Act (Adopted 1995) Three Main Elements: 1. Freedom of Travel: Includes the elimination of a need for passports for travel within the region; facilitation at immigration points; elimination of requirements for work permits for CARICOM nationals.

2. Free movements of university graduates, other professionals, skilled persons and occupations: - Graduates from:- University of West Indies - University of Guyana - University of Suriname - Duly accredited media workers - Sport persons - Musicians and artists - Workers in the Tourism and Entertainment industries - Any other skilled person eligible under Articles 35d and 36a of Protocol II Expanded to include additional categories: - Self-employed services providers - Entrepreneurs - Technical staff - Managerial staff - Supervisory staff - Spouses and immediate families of persons consuming services abroad

3. Other supporting measures: I ncludes the harmonization and transferability of social security benefits; mechanisms for certifying and establishing equivalency of degrees and accrediting institutions; coordination of social policies; development and promotion of a public education program for the policy of free movement Labour Mobility : Integral part of Caribbean Single Market and Economy (CSME) Integral part of Caribbean Single Market and Economy (CSME) CARICOM has gone further that any regional agreement except the European Union in fostering Labour Mobility CARICOM has gone further that any regional agreement except the European Union in fostering Labour Mobility

Status of Implementation of Skilled Nationals Act Member State Legislation Enacted Additional Steps Required Antigua & Barbuda Yes Fully Operationalised BelizeYes Some administrative and procedural arrangements must be put in place to issue Certificates for specified categories BarbadosYes Fully Operationalised DominicaYes GrenadaYes GuyanaYes JamaicaYes Saint Lucia Yes Fully Operationalised St. Kitts and Nevis Yes Regulations and administrative arrangements are still to be completed St Vincent and the Grenadines Yes Fully Operationalised SurinameYes Trinidad and Tobago Yes Fully Operationalised Source: CARICOM Secretariat

MERCOSUR VISA Mercosur Decision N o. 36, 2000 establishes the common rules for the temporary movement of services providers among member countries. Main features: ( técnicos altamente calificados o especialistas y profesionales de alto nivel) - Focus on high-skilled workers ( técnicos altamente calificados o especialistas y profesionales de alto nivel) - It does not eliminate the need for passport or visa - Eliminates the need for economic test or prior authorization - Maximum stay 2 years, renewable once

Definition of Categories for MERCOSUR visa Article 1 of Annex to Decision No. 36 Gerentes y directivos ejecutivos Gerentes y directivos ejecutivos Administradores Administradores Directores Directores Gerentes delegados Gerentes delegados Representantes legales Representantes legales Cientificos Cientificos Investigadores Investigadores Profesores Profesores Artistas Artistas Deportistas Deportistas Periodistas Periodistas Técnicos altamente calificados Técnicos altamente calificados Especialistas Especialistas Profesionales de nivel superior Profesionales de nivel superior

VISA Requirements Necessary to obtain the Visa Mercosur from consular authorities with: Valid Passport Valid Passport Birth certificate Birth certificate Contract: Information about the company recipient of the service and the type, duration and characteristics of the service provided Contract: Information about the company recipient of the service and the type, duration and characteristics of the service provided Certificate issued by authorities clearing the applicant of any criminal record (Certificado de antecedente penal) Certificate issued by authorities clearing the applicant of any criminal record (Certificado de antecedente penal) Curriculim Vitae Curriculim Vitae

What can we conclude? Most regional agreements have not gone very far to liberalize temporary movement of persons Most regional agreements have not gone very far to liberalize temporary movement of persons Focus has been on professionals and highly-skilled labor Focus has been on professionals and highly-skilled labor Definition of “temporary” varies Definition of “temporary” varies What can be facilitated are procedures – transparency - and conclusion of MRAs What can be facilitated are procedures – transparency - and conclusion of MRAs