|Free Trade Area of the Americas - FTAA|
FTAA - COMMITTEE
OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
Contribution from Universidad Abierta
Interamericana, Rosario Regional Campus,
TO: Chair of the Committee of Government
Representatives on the Participation of Civil Society
In response to the invitation extended for the participation of civil society, we are enclosing herewith the following document with comments on the Chapter on Trade in Services.
We thank the Committee of Government Representatives for the opportunity to share our opinions on the Draft Agreement. We are certain that transparency in the drafting of the text will ensure that the Free Trade Agreement takes into account the needs of all the countries of the hemisphere.
Dr. Ricardo Beltamino. Prof. Omar Cejas. Paulo Cesar Lanza. Mariela Sveda.
Article 1: SCOPE [OF APPLICATION]
1) In point 1.2) of Proposal 1, we suggest eliminating the word “cross-border” in reference to international services, because is it not appropriate for describing item c).
“Cross-border” services are a subcategory of modes of supply of services.
2) Under point 1.7) we consider it appropriate to insert “and differential” where the sentence reads “special conditions of treatment”:
All of the UNCTAD provisions on this type of treatment as well as the GATT Understanding on Special and Differential Treatment [sic] and the Draft FTAA Agreement were used as background for this proposal.
3) In connection with point 1.8a) we request that for the purposes of understanding and studying this Agreement, the FTAA Secretariat clarify the reasons for which the transfer of financial services has been excluded from trade in services, especially in light of the fact that such transfers are regulated by the WTO Agreement on Trade in Services (GATS), in the Annex on Financial Services, and by Protocols 2 and 5 of the Annexes to the GATS.
4) In point 1.9.a), we recommend inserting the phrase “unless it refers to qualifications,” as follows:
5) In point 1.11, the concept of “Reasonable Measures” should be defined using limits and specifications.
Article 3: MOST-FAVORED-NATION (MFN) TREATMENT
6) We categorically reject article 3.4), in view of the fact that subregional agreements such as Mercosur were created before and therefore have right of precedence over the FTAA.
Similarly, MERCOSUR, specifically, is a common market and entails a higher degree of integration than does a free trade area such as the proposed FTAA
Article 4: TRANSPARENCY
7) We propose adding a clause to Article 4, on Transparency.
This article only obliges parties receiving services to comply with transparency requirements in accordance with their own standards (laws, regulations, administrative guidelines, etc.)
We believe that a paragraph should be drafted expressly setting forth the obligation of service suppliers to comply with the transparency requirement. To this end, the party should, inter alia, exercise effective control over service suppliers so as to ensure that in the event of non-compliance by a service provider, specific disciplines may be applied to protect parties receiving the services;.
Example: It is essential that the party receiving the services know whether a company or an individual providing services on behalf of another contracting party has been legally incorporated or has the legal capacity to be a service provider.
Article 7: MARKET ACCESS
8) In point 7.3 e), of Proposal 1, we suggest that the following text be appended: “provided that this juridical person or enterprise has a legal structure accepted by the legislation of the country receiving the service”. It would read as follows:
If the original text is maintained, foreign service suppliers would be granted privileges not granted to nationals, which could give rise to a case of discrimination against the party that is the national, or treatment tantamount to reverse national treatment.
9) We reject point 7.3 f) of Proposal 1 of the aforementioned article because it violates the sovereign rights of States Party. Despite the Agreement’s stated objective of gradually liberalizing international trade, including trade in services, this paragraph would, in fact, run counter to that goal.
In addition, special and differential treatment for lesser developed parties should be taken into consideration.
10) Regarding point 7.3 and point 4 of Proposal 2 of the article, we suggest the adoption of disciplines that effectively require developed countries to meet whatever obligations may arise so as to ensure compliance with the special and differential treatment which the less developed countries deserve. This allows for balance in the responsibilities and obligations assumed by the less developed countries when their trade in services is liberalized .
11) With regard to point 7.3 of Proposal 3 and 7.4 of Proposal 4, we would like to insert the following at the end of each subparagraph: “this provision is by no means a waiver of the responsibilities of the parent company supplying the service and the State Party in which the service originates.
Article 8: DEFINITIONS
12) We believe that placing the definitions concerning Chapter 8 at the beginning of the chapter in the Agreement would enhance the juridical effect of the Agreement.
13) We reiterate our objection to point 1.2) which is repeated in the definition of cross-border trade, para. c).
14) We believe that the excessive sub-categorization of individuals and enterprises is both unnecessary and confusing, as lengthy descriptions do not necessarily lead to correct interpretations.
15) In connection with specialized air services, our opinion is that they should not make up a separate category within the chapter, unless each service sector and subsector is specifically addressed within this item.
SECTION ON OTHER ISSUES, RELATED TO THE FOREGOING ISSUES (AS DETERMINED BY EACH COUNTRY OR GROUP)
16) We request clarification concerning Proposal 2, para. 3, because para. 2 refers to sections a) through f) of the preceding paragraph, even though these sections do not actually exist.
17) Likewise, we reject paragraph b) of this article because no international organization has established international obligations calling for specific licensing and qualification requirements, since these are rights vested in the parties themselves.
18) In the section of Article 6 that deals with licensing requirements and technical standards, we believe that consideration should be given to including a paragraph on the special and differential treatment deserved by less developed countries .
19) With regard to National Regulations, this paragraph mentions commitments “pursuant to Article 10.” The draft in question has only 8 articles. We request clarification on this point.
20) We disagree with the elimination proposed in point 3) concerning permanent residence.
21) As regards non-mandatory local presence, we believe that this article should be of a limited nature and only be applicable in those instances in which parties agree to them in their list of specific commitments for each sector.
22) As for the section on recognitions, they should be accepted so long as they meet each party’s domestic requirements.
23) In connection with special safeguards, we believe that they should be set out in the Agreement, and that the establishment of procedures for urgent safeguards and subsidies, given the importance of these disciplines and their impact on the implementation of the agreement, should not be left to the Committee on Trade in Services. They should therefore be incorporated into the Agreement and approved by all the Parties.
24) In the section on Preferential and Differential Treatment, we believe that “and differential” should be inserted into subparagraph 1.”
25) Likewise, in subparagraph 2 on the Section on Preferential and Differential Treatment, we requested that the following text be inserted: “to this end, the countries with relatively higher levels of development shall establish a timetable for the application of these special conditions of access. These conditions shall result in free, unrestricted access for services from less developed countries.”
26) We request the insertion of the following in subparagraph 7: “the countries with relatively higher levels of development will grant funds to the IDB to encourage the provision of services within their own countries by suppliers from less developed countries ” (to align it with the text inserted in subparagraph 2).
27) It is important to draw the attention of the FTAA Secretariat to the absence of a special article taking into account the first and last links of trade in services. We are referring to consumers, who, other than one mention in the Definitions, are not considered in the entire Agreement (Article 8).
We believe it is necessary to draft a special article in this regard to guarantee the rights of consumers in all the FTAA countries.
28) We (once again) emphasize the responsibility of the countries from which service suppliers originate toward both consumers and the States Party that are recipients of the services.
Additionally, we feel it necessary to draft disciplines that make it mandatory for countries that supply services to comply with the duties and obligations stemming from the Agreement.
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