1. 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

2. 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 ?

3. Mode 4 in GATS Article V
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

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

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

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

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

8. 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

9. 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

10. 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

11. 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 – Mexico 5,500 p/year Canada – Mexico US – Chile 1,600 p/year
US – Singapore 5,400 p/year Maximum 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.

12. 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.

13. Recent Trend in US FTAs
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

14. CARICOM Experience with Liberalization of Mode 4 Skilled Nationals Act (Adopted 1995)
Three Main Elements:
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.

15. 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

16. Other supporting measures: Includes 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)
CARICOM has gone further that any regional agreement except the European Union in fostering Labour Mobility

17. Status of Implementation of Skilled Nationals Act
Member State
Legislation Enacted
Additional Steps Required
Antigua & Barbuda
Yes
Fully Operationalised
Belize
Some administrative and procedural arrangements must be put in place to issue Certificates for specified categories
Barbados
Dominica
Grenada
Guyana
Jamaica
Saint Lucia
St. Kitts and Nevis
Regulations and administrative arrangements are still to be completed
St Vincent and the Grenadines
Suriname
Trinidad and Tobago
Source: CARICOM Secretariat

18. MERCOSUR Main features: VISA Mercosur
Decision No. 36, 2000 establishes the common rules for the temporary movement of services providers among member countries.
Main features:
- 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

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

20. VISA Requirements
Necessary to obtain the Visa Mercosur from consular authorities with:
Valid Passport
Birth certificate
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)
Curriculim Vitae

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