|Free Trade Area of the Americas - FTAA||
North American Free Trade Agreement (NAFTA)
No Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party or of a non-Party in its territory:
a) to export a given level or percentage of goods or services; b) to achieve a given level or percentage of domestic content; c) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory; d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; e) to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings; f) to transfer technology, a production process or other proprietary knowledge to a person in its territory, except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws or to act in a manner not inconsistent with other provisions of this Agreement; or g) to act as the exclusive supplier of the goods it produces or services it provides to a specific region or world market. (Article 1106(1)).
A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements shall not be construed to be inconsistent with paragraph 1(f). For greater certainty, Articles 1102 [National Treatment] and 1103 [MFN Treatment] apply to the measure. (Article 1106(2)).
No Party may condition the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party or of a non-Party, on compliance with any of the following requirements: a) to achieve a given level or percentage of domestic content; b) to purchase, use or accord a preference to goods produced in its territory, or to purchase goods from producers in its territory; c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or d) to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings. (Article 1106(3)).
Nothing in paragraph 3 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment, in its territory of an investor of a Party or of a non-Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(Article 1106(4)). Paragraphs 1 and 3 do not apply to any requirement other than the requirements set out in those paragraphs (Article 1106(5)).
Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in paragraph 1(b) or (c) or 3(a) or (b) shall be construed to prevent any Party from adopting or maintaining measures, including environmental measures: a) necessary to secure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement; b) necessary to protect human, animal or plant life or health; or c) necessary for the conservation of living or non-living exhaustible natural resources. (Article 1106(6)).
Free Trade Agreement of the Group of Three among Mexico, Colombia, and Venezuela (Group of Three)
No Party shall impose performance requirements by adopting investment-related measures that are mandatory or required for the establishment or operation of an investment, or for which compliance is necessary in order to obtain or maintain an advantage or incentive, or which prohibit:
a) the purchase or use by an enterprise of goods of national origin of that Party, or from its national sources, whether specified in terms of specific goods, in terms of volume or value of the goods, or as a proportion of the volume or value of its local production;
b) the purchase or use of imported goods by an enterprise from being limited to an amount related to the volume or value of the local goods exported by the enterprise;
c) restrictions on imports of goods used by an enterprise in its local production or related thereto, limiting access by the enterprise to foreign exchange to an amount related to the entry of foreign exchange imputable to said enterprise;
d) restrictions on the exportation or the sale for exportation of goods by an enterprise, whether specified in terms of the volume or value of the goods, or as a proportion of the volume or value of its local production. (Article 17-04(1)).
The provisions of:
a) Paragraph 1(a) and (d) shall not apply with respect to requirements for the qualification of goods for export promotion programs;
b) Paragraph 1(a) shall not apply with respect to purchase or use by a Party or by a State enterprise;
c) Paragraph 1(a) shall not apply with respect to the requirements imposed by an importing Party with respect to the content required for goods in order to qualify for preferential tariffs or duties. (Article 17-04(2)).
Nothing in the provisions of this Article shall be construed as preventing a Party from imposing, with regard to any investment in its territory, requirements to locate production, generate jobs, train workers, or carry out research and development. (Article 17-04(3)).
If, in the judgment of a Party, another Party imposes a requirement not stipulated in paragraph 1 that adversely affects the flow of trade or that constitutes a significant barrier to investment, the matter shall be considered by the Commission. (Article 17-04(4)).
If the Commission finds that the requirement in question adversely affects the flow of trade or constitutes a significant barrier to investment, it shall recommend to the Party in question that it suspend the requirement. (Article 17-04(5)).
Common Market of the South (MERCOSUR)
Neither Party shall impose performance requirements as a condition of establishment, expansion or maintenance of investments, which require or enforce commitments to export goods produced, or which specify that goods or services must be purchased locally, or which impose any other similar requirements. (Article 3(4) of the Colonia Protocol).
Contracts for the license of technology, technical assistance, technical services, basic and detail engineering, and the other technological contracts referred to in the respective laws of the Member Countries shall be registered by the national competent entity of the respective Member Country, which shall evaluate the effective contribution of the imported technology by estimating the probable profitability thereof, the price of the goods incorporating the technology and other specific means of quantifying the effect of the imported technology. (Article 12).
Contracts for the importation of technology must contain, at least, provisions on the following matters:
a) identification of the parties, expressly referring to their nationality and domicile;
b) identification of the means by which the imported technology is to be transferred;
c) the contractual value of each of the elements involved in the technology transfer;
d) stipulation of the duration. (Article 13).
For the purposes of registering contracts on the transfer of foreign technology, trademarks or on patents the Member Countries may take into consideration that said contracts do not contain the following:
a) clauses that tie the supply of technology or the use of a trademark to the obligation for the country or the recipient company to acquire from a particular source capital goods, intermediate products, raw materials or other technologies, or to permanently utilize personnel indicated by the company providing the technology;
b) clauses by which the company selling the technology or granting the utilization of a mark reserves the right to set the sale or resale prices of the products produced on the basis of the respective technology;
c) clauses that contain restriction with respect to the volume and structure of production;
d) clauses that prohibit the utilization of competitive technologies;
e) clauses that establish a total or partial purchase option in favor of the supplier of the technology;
f) clauses that require the purchaser of the technology to transfer to the supplier the inventions or improvements deriving from the utilization of said technology;
g) clauses that require the payment or royalties to the owners of patents or trademarks in the cases of patents or trademarks not utilized or that have expired; and
h) other clauses of like effect.
Except in exceptional cases duly authorized by the national competent entity of the recipient country, clauses that prohibit or limit in any manner the exportation of products produced on the basis of the respective technology shall not be permitted. In no case shall clauses of this nature in relation to subregional trade or for the exportation of similar products to third countries be permitted. (Article 14).
Caribbean Community and the Caribbean Common Market (CARICOM)
Principles and Guidelines on Foreign Investment (1982 Caricom Heads of Government Conference): All foreign investments shall be required to meet performance criteria on a case by case basis as determined by Caricom host governments. In general, the following five criteria will be required (where necessary) to be met:
a) removal or reduction of restrictions under licensing agreements on production for both regional and extra-regional markets;
b) employment priority to be given first to nationals of the host country, second to Caricom nationals and then to nationals of the source country; and policies instituted to ensure that nationals of the host country receive the necessary training and achieve the required experience to equip them to assume senior management positions;
c) the use, where appropriate, of local and regional raw materials, other material inputs and services;
d) the provision of externally generated financial resources to meet a reasonable proportion (as determined by the host country) of long-term and working capital needs of the foreign enterprise; and
e) where there are joint venture enterprises, "fade out" arrangements over time to enable ultimate local or regional control. (Caricom Heads of Government Conference, 1982; see HGC 82/3/17 Attachment IV).