APEC Model Measures for Rtas/Ftas

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2008/MRT/005att2

Agenda Item: III

APEC Model Measures for RTAs/FTAs

Purpose: Consideration

Submitted by: SOM Chair’s Office

/ Ministers Responsible for Trade Meeting
Arequipa, Peru
31 May-1 June 2008

APEC model measures for RTAs/FTAs

Agreed chapeau for the model measures

All sets of model measures adopted in 2008 and beyond will be subject to the chapeau adopted in 2006 which reads:

“The following model measures for RTAs/FTAs respond to an instruction by Leaders in 2005 that APEC develop by 2008 model measures for as many commonly accepted RTA/FTA chapters as possible. They build on the Best Practices for RTAs/FTAs adopted by APEC members in 2004.

These model measures are an APEC contribution to the promotion of high-quality and comprehensive free-trade agreements in the Asia-Pacific region and the realisation of the Bogor Goals. They are intended to encourage a coherent and consistent approach to the design and content of such agreements.

The model measures reflect the general APEC principle of voluntarism. They are neither mandatory nor exhaustive. They are not in legal language that might be used in an agreement. The model measures are indicative examples to provide members with useful reference in negotiating RTA/FTA chapters. They are a guide to the kind of provisions that might be included in a free-trade agreement. They will not prejudice the positions of APEC members in any of their current or future trade negotiations. Model measures for the chapters addressed here do not indicate economies will necessarily include all of these chapters in their RTAs/FTAS.

This chapeau sits above all chapters in this set of model measures.”

APEC Model Measures for RTAs/FTAs: Competition Policy

Objectives

Sets out the objectives of the chapter, for example:

-recognise the importance of creating and maintaining open and competitive markets to promote economic efficiency and consumer welfare;

-affirm the desire to promote competition in a manner that protects the competitive process rather than competitors; and

-seek to ensure that the benefits of trade liberalisation are not undermined by anticompetitive practices and recognises the importance of cooperation and coordination on competition policy matters.

Competition Policy and Law and Anticompetitive Business Conduct

Sets out commitments on competition policy and law and anti-competitive business conduct. Such commitments might include:

-promotion of competition by addressing anti-competitive business conduct subject to the Party’s jurisdiction, and by enacting laws and establishing institutions for the adoption, maintenance and enforcement of measures, as deemed appropriate by the Party;

-To the extent that such measures are in place,[*] they should seek to promote the objectives of the APEC Principles to Enhance Competition and Regulatory Reform;

-a Party may also provide for certain procedural rights.

Cooperation

a)Provides for cooperation in the implementation of competition law and policy. This section :

-Would recognise the importance of cooperation to promote competition, economic efficiency and consumer welfare;

-Might include cooperation arrangements on issues of competition law enforcement and policy, providing, for example, for the exchange of public information, notification and consultation, as appropriate.

b)Sets out technical cooperation activities for capacity building related to the implementation of competition policy and law, such as:

-exchange of experience regarding the promotion and enforcement of competition law and policy;

-exchange of information about competition law and policy;

-exchange of officials for training purposes; and

-participationand exchange of officials and other experts as lecturers/consultants/participants at training courses on competition law and policy.

Consultation

Sets out the arrangements for consultation in implementing the Competition Chapter. This section:

-Provides for consultations to foster understanding between the Parties or to address specific matters that arise under this Chapter. Such consultations may occur especially when such matters affect the interests of the other party;

-States that when a request for consultations is made, a response will be provided within a reasonable time frame and that the Party receiving the request will accord full and sympathetic consideration to the concerns identified in the request, in compliance with domestic legal requirements.

Dispute settlement

Sets out which provisions in the Chapter will be subject to dispute settlement. Possible approaches include:

Either

-No provisions are subject to the Agreement’s dispute settlement mechanism;

Or

-A limited set of provisions is subject to the Agreement’s dispute settlement mechanism in that:

• Certain provisions, including any provisions regarding competition policy, the adoption, maintenance and enforcement of a domestic competition law, and cooperation and consultation between/among the Parties, are not subject to the Agreement’s dispute settlement mechanism.

Parties may choose to include specific commitments that prevent designated monopolies and state enterprises from discriminatory conduct. Such provisions are not related to the adoption, maintenance or enforcement of competition law and may be subject to the agreement’s dispute settlement mechanism, as appropriate.

APEC Model Measures for RTAs/FTAs: Environment

1. Objectives

-promote mutual supportiveness of trade and environment;

-encourage sound environment policies and practices and improve the capacities and capabilities of the Parties, including non-government sectors, to address environmental matters;

2. Principles and Commitments:

-reaffirm each Party’s sovereign right over its natural resources and reiterate the sovereign right of each of them to set, administer and enforce their own environmental laws, regulations and policies according to their priorities.

-recognize the importance of each Party effectively enforcing its environmental laws and regulations, and that such laws and regulations include fair, equitable and transparent mechanisms of public participation.

-reaffirm the Parties’ intention to continue to pursue high levels of environmental protection consistent with their domestic laws, regulations and policies.

-recognize that MEAs to which both Parties are party play an important role globally and domestically in protecting the environment; and that their respective implementation of these agreements is critical to achieving the environmental objectives thereof.

-agree that it is inappropriate to set or use environmental laws, regulations, policies and practices for trade protectionist purposes.

-agree that it is inappropriate to relax, or fail to enforce or administer environment laws and regulations to encourage trade and investment.

-encourage trade of environmental goods and services.

-promote public awareness of each Party’s environmental laws, regulations, policies and practices domestically and promote environmental consciousness and education.

3. Cooperation:

Sets out a framework to support the Parties’ co-operation and capacity building efforts in this area.

-Taking account of national priorities and available human and financial resources, cooperate on mutually agreed environmental issues of common global or domestic concern, through the interaction of government, business sector, educational, research and other non-governmental institutions in each Party.

-include work in the fields of activity determined by the Parties during the negotiating process.

-decide funding of cooperative activities on a case-by-case basis.

-invite the participation of each Party’s non-governmental sectors and other organizations in identifying potential areas for cooperation and in undertaking cooperative activities as mutually agreed.

-encourage and facilitate, as appropriate, the following activities:

• support for joint programs and environmental technological and practical demonstrations, including projects, research studies and reports;
• exchange of professionals, technicians and specialists;
• facilitation of linkages among representatives from, inter alia, government, academia, and business sector;
• organization of joint conferences, seminars, workshops, meetings, training sessions, and outreach and educational programs;
• exchange of technical information, publications and regulations;
• exchange of information and consultation on national environmental programs;
• sharing approaches and experiences with respect to environmental institutions, regulations and enforcement;
• enhance cooperation on raising public awareness of environmental conservation and participation in environmental protection; and
• any other modes of cooperation agreed upon by the Parties.

-evaluate the effectiveness of cooperative activities prior to determining future cooperation.

4. Institutional Arrangements:

Sets out the institutional framework to facilitate implementation of the Environment Chapter

-designate a Contact Point and/or an Environment Committee to facilitate communications on matters arising under the Environment chapter, which should:

• meet and communicate on a regular basis as mutually agreed.

• be responsible for: co-ordinating the implementation of the Environment Chapter; serving as a forum for dialogue on environment-related matters of mutual interest; considering areas of potential cooperative activities; monitoring the progress of work programs and other joint activities.
• as appropriate, report to the appropriate bodyof the RTA/FTA each time the appropriate body meets. [This suggestion depends upon the institutional model adopted]

-consult with members of its public and/or non-governmental sectors on matters relating to the operation of this Chapter, where necessary.

-develop mechanisms, where necessary, to inform its public of activities undertaken pursuant to this Chapter in accordance with its laws, regulations, policies and practices.

5. Consultations:

-with all possible means endeavor to agree on the interpretation and application of the Environment Chapter.

-endeavor to resolve, amicably and in good faith, through dialogue, consultation and cooperation, any issue that might arise between the Parties concerning the application and implementation of the Chapter.

APEC Model Measures for RTAs/FTAs:Temporary Entry for Business Persons

The purpose of this model measure is to provide non-binding guidance in the context of a comprehensive bilateral or regional free trade agreement in the following:

1. Measures to facilitate and enhance temporary entry for business persons

(Note: These measures are not intended to address permanent immigration and employment-related matters.)

1. Understanding of common categories of business persons

I) Measures to facilitate the temporary entry for business persons

Grant of Temporary Entry

-an agreement may require each party to grant temporary entry to business persons in the categories listed in the attached Annex who comply with general immigration measures applicable to temporary entry including public health and safety and national security.

-a party may refuse to issue a work permit or other similar immigration document authorizing employment to a business person where the temporary entry of that person might adversely affect labour disputes in progress at the place or intended place of employment or the employment of any person involved in a labour dispute.[†]

-each party limits any fees for processing applications for temporary entry of business persons to the approximate cost of services rendered, consistent with the principle of reciprocity.

-no provision shall impose any obligation on a Party regarding its general immigration measures.

-a party may require a business person seeking temporary entry under this Section to obtain an entry visa or an equivalent requirement prior to entry and to comply with other immigration measures applicable to temporary entry.

-a party may only apply labour market tests, economic needs tests or other prior approval procedures of similar effect and numerical restriction as required to maintain policy flexibility to achieve domestic policy objectives. The introduction of such tests and procedures is subject to negotiation between the parties, taking into account the domestic policy objectives and labour market situation of each party. (Note: This provision applies only to the categories of business persons included in the Annex.)

Provision of Information

-each party makes available through electronic means or otherwise, information on its measures relating to this Chapter, such as explanatory material, to assist business persons with their understanding of the measures, including information such as the length of stay permissible for business persons allowed temporary entry and references to applicable laws and regulations.

-each party collects and maintains, and, on request, makes available to the other party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other party who have been issued an immigration document authorizing employment.

Contact Points

-the parties establish Contact Points;

-the Contact Points meet as required, either on a bilateral or plurilateral basis, to exchange information and to consider matters pertaining to this Chapter, such as:

(a)implementation and administration such asthe development and adoption of common criteria, definitions and interpretations;

(b)development of measures to further facilitate temporary entry of business persons; and

(c)proposed modifications.

Dispute Settlement

-a party may not initiate proceedings under the general dispute settlement provisions of an agreement regarding a refusal to grant temporary entry under its temporary entry chapter unless it involves a pattern of practice and normal or domestic remedies have been exhausted.

Relation to Other Chapters

-nothing in thischapter will be construed to impose obligations or commitments with respect to the other chapters of the agreement.

-unless specified, other chapters of the agreement will not be construed to impose obligations or commitments on this Chapter. Some examples of chapters which may specify obligations to this Chapter include General Definitions, Transparency and Objectives.

Definitions

-- definitions are expressed in clear language to minimise misunderstandings and would accommodate the regulatory regimes of parties involved.

II) Annex of common categories of Business Persons[‡]

Section A - Business Visitors

- a temporary entry chapter may provide for each party to grant short term temporary entry to a business person seeking to engage in business activities in accordance with an agreed definition by parties without requiring that person to obtain a work permit or authorization. Appendix A.1 sets out an illustrative list of what these activities could entail.

- a business visitor should not be seeking to enter the labour market and his/her activities should be international in scope (i.e. the primary source of remuneration for the proposed business activity is outside the territory of the party granting temporary entry; and the business person's principal place of business domicile and the actual place of accrual of profits, at least predominantly, remain outside such territory.).

Section B - Intra-Company Transferees

- a temporary entry chapter may provide for each party to grant temporary entry and provides a work permit or authorization to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof as an executive or manager, or a specialist.

Executives, Managers and Specialists are defined as follows:

Executives

Executives are those who primarily direct the management of the organization and exercise wide latitude in decision making, and receive only general supervision or direction from higher-level executives, the board of directors or stockholders of business. Executives would not directly perform tasks related to the actual provision of services of the organization.

Managers

Managers are those who primarily direct the organization/department/ subdivision and exercise supervisory and control function over other supervisory, managerial or professional staff, have the authority to hire and fire or recommend hiring, firing or other personnel actions (such as promotion or leave authorization), and exercise discretionary authority over day-to-day operations.

Specialists

Specialists are those who possess knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possess proprietary knowledge of the organization’s product, service, research equipment, techniques or management.

Section C – Professionals[§]

- a temporary entry chapter may provide for each party to granttemporary entry and issue a work permit or authorization to a business person who is entering to perform pre-arranged business activities at a professional level in adherence to Appendix C.1, and who has a pre-arranged professional services contract in the field for which they have the appropriate qualifications.

Section D - Other Categories

Any other category that Partiesmay wish to include not covered by any of the three categories described above. Further, parties could also include types of service suppliers specific to a sub-sector(s) which could be included in the sector specific commitments.

The categories listed below are for illustrative purposes only, meant to give examples of the types of categories which could be included in an agreement, subject to negotiation. Parties are free to negotiate other categories of interest to them.

Traders

- a temporary entry chapter may provide for each party to grant temporary entry and provides a work permit or authorization to a business person seeking to carry on substantial trade in goods or services principally between the parties in a capacity that is supervisory, executive or involves essential skills.

Investors

- a temporary entry chapter may provide for each party to grant temporary entry and provides a work permit or authorization to a business person seeking to establish the operation of an investment to which the business person or the business person's is or will be investing a substantial amount of capital, in a capacity that is supervisory, executive or involves essential skills.

Installers andservicers[**]

- a temporary entry chapter may provide for each party to grant temporary entry and provides a work permit or authorization to a business person of a party who is an installer or servicer of machinery and/or equipment, where such installation and/or servicing by the supplying company is a condition of the purchase of the machinery or equipment. An installer or servicer cannot perform services which are not related to the service activity which is the subject of the contract.

Appendix A.1
Business Visitors

This Appendix is to be considered as a reference only, meant to provide an illustrative list of the types of activities that may be included under the business visitor category.

The categories listed below are not intended to pre-judge or exclude any categories in an actual agreement. The specific categories of business visitors and the definitions will be subject to negotiation by Parties in accordance with their internal immigration regulatory regimes.