Presentation on theme: "WTO Symposium MODE 4 OF THE GATS – TAKING STOCK AND MOVING FORWARD Geneva, 22-23 September 2008 Session 4: Mode 4 in practice – Perspectives from immigration,"— Presentation transcript:
1 WTO Symposium MODE 4 OF THE GATS – TAKING STOCK AND MOVING FORWARD Geneva, September Session 4: Mode 4 in practice – Perspectives from immigration, labour and trade
2 Professor Shin-yi Peng Tsing Hua University Experience in the Separate Customs Territory of Taiwan, Penghu, Kinmen, and MatsuProfessor Shin-yi PengTsing Hua University
3 Outline Mode 4 Trade in East Asia General Review of the GATS Commitments(& the RTAs)Existing Regime for Labor Mobility (within GATS mode 4 Framework)Current Flows of Foreign Natural Persons in Chinese TaipeiLegal FrameworkStatistical AnalysisPotential Implications and Main ConcernsPolicy Debates and Legal IssuesAs a Host CountryAs a Home CountryMode 4 LiberalizationThe APEC ExperienceConcluding Remarks
4 Mode 4 Trade in East Asia General Review of the GATS Commitments Existing Regime for Labor Mobility (within GATS mode 4 Framework)
5 Mode 4 in East Asia-- GATS Commitments Major Entry Conditions & LimitationsEast Asian WTO MembersLink to Mode 3Chinese Taipei, Thailand, Singapore, Malaysia, Korea, Japan, Indonesia, Hong Kong-China and China.Pre-employmentChinese Taipei, Singapore, Malaysia, Korea, and Hong Kong, China.ENTThe Philippines, Malaysia, Indonesia, and China.
7 Selective East Asian WTO Member Greater Market Access in Mode 4 Initial/Revised OffersEmployment by Domestic FirmsLower Level of SkillsDe-linked with Mode 3Intra-corporate TransfereesOtherBrunei DarussalamXChinaCambodiaHong Kong, China√IndonesiaJapanKoreaMalaysiaMacao, ChinaMyanmarThe PhilippinesSingaporeChinese TaipeiThailand
8 Chinese Taipei-- GATS Commitments and the Existing Regime Labor Law and Major RegulationsGATS CommitmentsEmployment Services ActEnforcement RulesBusiness visitorsIntra-corporate TransfereesContract SuppliersThe Reviewing Standards andEmployment Qualifications forForeigners Engaging in the JobsSpecified in the EmploymentService ActOther Law or Regulation:Attorney ActCertified Public Accountant Act
9 Chinese Taipei-- GATS Commitments and the Existing Regime Mode 4 CommitmentsLabor Lawe.g.,Business visitorse.g.,Less skilledworkerse.g.,Annex on Mode 4
10 Current Flows of Foreign Natural Persons in Chinese Taipei Legal FrameworkStatistical Analysis
11 Legal Framework— Employment Services Act (Article 46) Unless otherwise provided for in the present Act, the work a Foreign Worker may be employed to engage in within the territory of Chinese Taipei is limited to the following:
12 Mode 4 Commitments under GATS 1. Specialized or technical work;2. Director/Manager/Executive of a business invested in or set up by foreigners with the authorization of the government;3. Teacher at schools;4. Full-time teacher teaching courses on foreign languages at a short-term class registered for supplementary schooling in accordance with the Supplementary Education Act;5. Sports coach and athlete;6. Religious, artistic, and show business work;Mode 4 Commitments under GATS
13 Outside the GATS Commitments 7. Crew member of a merchant vessel, working vessel, and vessel ad hoc permitted by the Ministry of Transportation and Communication;8. Marine fishing/netting work;9. Household assistant;10. Work designated by the competent authority in response to major construction projects or economic/social development needs; and11. Other specialized work ad hoc approved by the competent authority due to the lack of such specialist in the domestic employment market and the business necessity to retain the service of such specialist therefore.Outside the GATS Commitments
14 Special Professions or Technical Assignments 1. Architecture and civil engineering. 2. Transportation. 3. Tax and financial service. 4. Real estate agency. 5. Immigration service. 6. Attorney ( legal services). 7. Technicians. 8. Medical and/or Health Care. 9. Environmental protection. 10. Cultural, sports and recreation services. 11. Academic research. 12. Veterinarian. 13. Manufacturing. 14. Wholesale. 15. Other job descriptions designated by the competent authorities along with the specific industry authorities.
15 Mode 4 in practice- Current Flows of Foreign Natural Persons in Chinese Taipei Statistical AnalysisTime Period: From 2004/ /07Data: Bureau of the Employment and Vocational Training (BEVT) under the Council of Labor Affairs, Science Park Administration, Export Processing Zone AdministrationType of Work Permits: Foreign Professionals under the definition of the Employment Services Act (Article 46)Specialized workDirector/Manager/ExecutiveTeacher at schoolsTeacher for supplementary schoolingSports coach and athleteReligious and artistic work
23 Potential Implications and Main Concerns Policy DebatesAs a Host CountryAs a Home Country
24 Mode 3 v. Mode 4Making the linking of modes 3 and 4 unnecessarily complicated.Intra-corporate Transfereesexecutives, managers, and specialists?De-linkingMaking the negotiations easier for liberalizing mode 4 on its own
25 De-Linking with Mode 3? Horizontal Approach v. Sectoral Approach Sector/Sub-sectorMarket AccessHorizontal CommitmentsAll SectorsEntry and Temporary Stay of Natural Persons. Unbound, except for measures…Intra-Corporate Transferees-Can the services be delivered exclusively through mode 4?-Are the Services normally supplied by natural persons as an adjunctto a foreign investment due to the technology facilities andbusiness models ?
26 De-Linking with Mode 3? Horizontal Approach v. Sectoral Approach Sub-sectorMarket AccessSector-Specific CommitmentsComputer ServicesThe situations where the movement of persons alone can be a feasible mode of supplyBasic Telecom ServicesThe situations where the movement of persons is mainly for the purpose of facilitating trade in mode 3Any undertaking should therefore be made on the basis ofindividual sectors in order to yield the greatest possibleLiberalization for mode 4.
27 Toward Greater Mobility-- Regulatory Transparency of Mode 4 Trade Discretionary PowerUnpredictabilityTerminologies“Temporary”?“Professionals”?Trade Officials: How to access the degree of reciprocity?Lack of TransparencyNo explicit criteriaNo clear definitionPlay it Safe
28 The APEC Experience APEC Individual Action Plan (IAP) In Chapter 13 of the IAP “Mobility of Business People”to enhance the mobility of business people who are engaged in the conduct of trade and investment activities in the Asia-Pacific region.to enhance the use of information and communications technology (ICT) to facilitate the movement of people across borders.to exchange information on regulatory regimes in regard to the mobility of business people in the regionto streamline short-term entry requirements for business people.
29 The APEC ExperienceTo carry out those promises, Members update their relevant measures by the following format on an annual basis:Chapter 13: Mobility of Business People, IAPChinese Taipei’s Approach to Business MobilitySectionImprovements Implemented Since Last IAPCurrent Business Mobility Related Policies and ArrangementsFurther Improvements Planned
30 Concluding RemarksTo the extent that labor policy authorities are being asked to respond to the inquiries for achieving further liberalization of mode 4, they have been cautious in their response, which is understandable.It is important to be reminded of the fact that the mission of most labor authorities is to administer legislations, not to facilitate movement of foreign services suppliers, since their functions are largely defensive in nature.The problems associated with mode 4 requires a new level of policy co-ordination between relevant regulatory agencies, particularly those responsible for trade, immigration and the labor market, in order to find workable solutions and to move forward with liberalization.
31 Concluding RemarksLabor and trade authorities should engage in an intensive and productive dialogue on the further liberalization of mode 4.The legal framework of labor law, in most cases, although consistent with GATS in substance, is complicated and the language does not correspond exactly to the GATS horizontal commitmentsFor most Members, the interface between labor policy-making related to foreign interests is somehow weak. The most difficult part seems to be that the policy fails to determine who is best positioned to respond to these demands for liberalization.The different groups in charge of trade, labor and migration policies in the capitals of the Members must increase their collaboration.
32 Concluding RemarksThere is a need for predictability of actual entry conditions. The criteria for mode 4 entry must be more specific so as to assist and guide foreign services suppliers.There are many vague terminologies and definitions used in the Schedule of Commitments that leave much room for administrative discretion.Since much of the terminology can be interpreted differently by different Members, it becomes rather difficult if not impossible to assess the overall degree of liberality.The existing GATS transparency rules are not adequate in terms of mode 4. Consideration should be given to developing specific disciplines for mode 4.