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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,

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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, 22-23 September 2008 Session 4: Mode 4 in practice – Perspectives from immigration, labour and trade

2 Experience in the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu Professor Shin-yi Peng Tsing Hua University

3 3Outline Mode 4 Trade in East Asia Mode 4 Trade in East Asia General Review of the GATS Commitments(& the RTAs) General Review of the GATS Commitments(& the RTAs) Existing Regime for Labor Mobility (within GATS mode 4 Framework) Existing Regime for Labor Mobility (within GATS mode 4 Framework) Current Flows of Foreign Natural Persons in Chinese Taipei Current Flows of Foreign Natural Persons in Chinese Taipei Legal Framework Legal Framework Statistical Analysis Statistical Analysis Potential Implications and Main Concerns Potential Implications and Main Concerns Policy Debates and Legal Issues Policy Debates and Legal Issues As a Host Country As a Host Country As a Home Country As a Home Country Mode 4 Liberalization Mode 4 Liberalization The APEC Experience The APEC Experience Concluding Remarks Concluding Remarks

4 4 Mode 4 Trade in East Asia General Review of the GATS Commitments General Review of the GATS Commitments Existing Regime for Labor Mobility (within GATS mode 4 Framework) Existing Regime for Labor Mobility (within GATS mode 4 Framework)

5 5 Mode 4 in East Asia-- GATS Commitments Major Entry Conditions & Limitations East Asian WTO Members Link to Mode 3 Chinese Taipei, Thailand, Singapore, Malaysia, Korea, Japan, Indonesia, Hong Kong-China and China. Pre-employment Chinese Taipei, Singapore, Malaysia, Korea, and Hong Kong, China. ENT The Philippines, Malaysia, Indonesia, and China.

6 6 ASEAN? ASEAN? Others? Others? APEC? APEC? Japan- Singapore FTA? Japan- Singapore FTA? More successful ? The empirical facts disprove that ! Regional Context

7 7 Selective East Asian WTO Member Greater Market Access in Mode 4 Initial/Revised Offers Employment by Domestic Firms Lower Level of Skills De-linked with Mode 3 Intra- corporate Transferees Other Brunei Darussalam XXXXX ChinaXXXXX CambodiaXXXXX Hong Kong, China XXXX IndonesiaXXX JapanXX KoreaXXX MalaysiaXXXXX Macao, China XXXX MyanmarXXXXX The Philippines XXXXX SingaporeXXXX Chinese Taipei XXXXX ThailandXXX

8 8 Chinese Taipei-- GATS Commitments and the Existing Regime Business visitors Business visitors Intra-corporate Transferees Intra-corporate Transferees Contract Suppliers Contract Suppliers Employment Services Act Enforcement Rules Other Law or Regulation: Attorney Act Certified Public Accountant Act The Reviewing Standards and Employment Qualifications for Foreigners Engaging in the Jobs Specified in the Employment Service Act GATS Commitments Labor Law and Major Regulations

9 9 Chinese Taipei-- GATS Commitments and the Existing Regime Labor Law Mode 4 Commitments e.g., Business visitors e.g., Less skilled workers workers e.g., Annex on Mode 4

10 10 Current Flows of Foreign Natural Persons in Chinese Taipei Legal Framework Legal Framework Statistical Analysis Statistical Analysis

11 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: 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 12 1. Specialized or technical work; 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; 2. Director/Manager/Executive of a business invested in or set up by foreigners with the authorization of the government; 3. Teacher at schools; 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; 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; 5. Sports coach and athlete; 6. Religious, artistic, and show business work; 6. Religious, artistic, and show business work; Mode 4 Commitments under GATS

13 13 7. Crew member of a merchant vessel, working vessel, and vessel ad hoc permitted by the Ministry of Transportation and Communication; 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; 8. Marine fishing/netting work; 9. Household assistant; 9. Household assistant; 10. Work designated by the competent authority in response to major construction projects or economic/social development needs; and 10. Work designated by the competent authority in response to major construction projects or economic/social development needs; and 11. 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. 11. 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 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. 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 15 Mode 4 in practice- Current Flows of Foreign Natural Persons in Chinese Taipei Statistical Analysis Statistical Analysis Time Period: From 2004/01-2008/07 Time Period: From 2004/01-2008/07 Data: Bureau of the Employment and Vocational Training (BEVT) under the Council of Labor Affairs, Science Park Administration, Export Processing Zone Administration Data: Bureau of the Employment and Vocational Training (BEVT) under the Council of Labor Affairs, Science Park Administration, Export Processing Zone Administration Type of Work Permits: Foreign Professionals under the definition of the Employment Services Act (Article 46) Type of Work Permits: Foreign Professionals under the definition of the Employment Services Act (Article 46) Specialized work Specialized work Director/Manager/Executive Director/Manager/Executive Teacher at schools Teacher at schools Teacher for supplementary schooling Teacher for supplementary schooling Sports coach and athlete Sports coach and athlete Religious and artistic work Religious and artistic work

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22 22 Indonesia MalaysiaMongolia Vietnam Thailand The Philippines

23 23 Potential Implications and Main Concerns Policy Debates Policy Debates As a Host Country As a Host Country As a Home Country As a Home Country

24 24 Mode 3 Mode 4 De-linking Intra-corporate Transferees executives, managers, and specialists? Making the negotiations easier for liberalizing mode 4 on its own Making the linking of modes 3 and 4 unnecessarily complicated. Mode 3 v. Mode 4

25 25 Sector/Sub-sector Market Access Horizontal Commitments All Sectors Entry 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 adjunct to a foreign investment due to the technology facilities and business models ? De-Linking with Mode 3? Horizontal Approach v. Sectoral Approach

26 26 Sub-sector Market Access Sector-Specific Commitments Computer Services The situations where the movement of persons alone can be a feasible mode of supply Basic Telecom Services The situations where the movement of persons is mainly for the purpose of facilitating trade in mode 3 Any undertaking should therefore be made on the basis of individual sectors in order to yield the greatest possible Liberalization for mode 4. De-Linking with Mode 3? Horizontal Approach v. Sectoral Approach

27 27 Terminologies Terminologies Temporary? Temporary? Professionals? Professionals? Discretionary Power Unpredictability Lack of Transparency Lack of Transparency No explicit criteria No explicit criteria No clear definition No clear definition Trade Officials: How to access the degree of reciprocity? Play it Safe Toward Greater Mobility-- Regulatory Transparency of Mode 4 Trade

28 28 The APEC Experience APEC Individual Action Plan (IAP) APEC Individual Action Plan (IAP) In Chapter 13 of the IAP Mobility of Business People 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 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 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 region to exchange information on regulatory regimes in regard to the mobility of business people in the region to streamline short-term entry requirements for business people. to streamline short-term entry requirements for business people.

29 29 The APEC Experience To carry out those promises, Members update their relevant measures by the following format on an annual basis: To carry out those promises, Members update their relevant measures by the following format on an annual basis: Chapter 13: Mobility of Business People, IAP Chinese Taipeis Approach to Business Mobility Section Improvements Implemented Since Last IAP Current Business Mobility Related Policies and Arrangements Further Improvements Planned

30 30 Concluding Remarks To 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. To 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. 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. 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 31 Concluding Remarks Labor and trade authorities should engage in an intensive and productive dialogue on the further liberalization of mode 4. Labor 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 commitments 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 commitments For 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. For 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. The different groups in charge of trade, labor and migration policies in the capitals of the Members must increase their collaboration.

32 32 Concluding Remarks There 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 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. 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. 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. The existing GATS transparency rules are not adequate in terms of mode 4. Consideration should be given to developing specific disciplines for mode 4.

33 Shin-yi PENG E-mail: sypeng@mx.nthu.edu.tw Website: http://sypeng.myweb.hinet.net SSRN Author page: http://ssrn.com/author=723329sypeng@mx.nthu.edu.twhttp://sypeng.myweb.hinet.nethttp://ssrn.com/author=723329


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