Level of Government: Central
Measures: 49 U.S.C., Subtitle VII, Aviation Programs49 U.S.C. § 4170314 C.F.R. Part 375
Description: Investment
“Foreign civil aircraft” require authority from the Department of Transportation to conduct specialty air services in the territory of the United States. In determining whether to grant a particular application, the Department will consider, among other factors, the extent to which the country of the applicant’s nationality accords U.S. civil aircraft operators effective reciprocity. “Foreign civil aircraft” are aircraft of foreign registry or aircraft of U.S. registry that are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States (14 C.F.R. § 375.1). Under 49 U.S.C. § 40102(a)(15), a citizen of the United States means an individual who is a U.S. citizen; a partnership in which each member is a U.S. citizen; or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of U.S. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.
Cross-Border Trade in Services
Authorization from the Department of Transportation is required for the supply of specialty air services in the territory of the United States. A person of a Party will be able to obtain such an authorization if the Party provides effective reciprocity by virtue of this Agreement.
Sector: Land Transportation
Sub-Sector:
Obligations Concerned: National Treatment (Articles 14.4 and 15.3) Most-Favored-Nation Treatment (Article 14.5 and 15.4)Local Presence (Article 15.6)
Level of Government: Central
Measures: 49 U.S.C. § 13902(c)49 U.S.C. § 1310249 U.S.C. § 1350149 C.F.R. Subtitle B, Chapter IIISec. 350, P.L. 107-87, as amendedSec. 6901, P.L. 110-28, as amended
Description: Investment
Grants of authority for the provision of truck services by persons of Mexico between points in the United States for the transportation of goods other than international cargo are subject to reciprocity.
Investment and Cross-Border Trade in Services
Only persons of the United States, using U.S.-registered and either U.S.-built or duty-paid trucks or buses, may provide truck or bus services between points in the territory of the United States.
Operating authority from the Department of Transportation is required to provide cross-border bus or truck services in the territory of the United States. For greater certainty, the United States may maintain the regulatory requirements in 49 C.F.R. Subtitle B, Chapter III, or similar successor regulatory requirements.
Sector: Transportation Services - Customs Brokers
Sub-Sector:
Obligations Concerned: National Treatment (Articles 14.4 and 15.3) Local Presence (Article 15.6)
Level of Government: Central
Measures:19 U.S.C. § 1641(b)
Description: Investment and Cross-Border Trade in Services
A customs broker’s license is required to conduct customs business on behalf of another person. An individual may obtain such a license only if that individual is a U.S. citizen. A corporation, association, or partnership may receive a customs broker’s license only if it is established under the laws of any state and at least one officer of the corporation or association, or one member of the partnership, holds a valid customs broker’s license.
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4)Most-Favored-Nation Treatment (Article 14.5)
Level of Government: Central
Measures: Securities Act of 1933, 15 U.S.C. §§ 77c(b), 77f, 77g, 77h, 77j, and 77s(a)17 C.F.R. §§ 230.251 and 230.405Securities Exchange Act of 1934, 15 U.S.C. §§ 78l, 78m, 78o(d), and 78w(a)17 C.F.R. § 240.12b-2
Description: Investment
Foreign firms, except for certain Canadian issuers, may not use the small business registration forms under the Securities Act of 1933 to register public offerings of securities or the small business registration forms under the Securities Exchange Act of 1934 to register a class of securities or file annual reports.
Sector: Communications – Radiocommunications*
Sub-Sector:
Obligations Concerned:National Treatment (Article 14.4)
Level of Government:Central
Measures: 47 U.S.C. § 310 (a)-(b)Foreign Participation Order 12 FCC Rcd 23891, paras. 97-118 (1997)
Description: Investment
The United States restricts ownership of radio licenses in accordance with the above statutory and regulatory provisions, which provide that, inter alia:
(a) no station license may be granted to or held by a foreign government or representative thereof;
(b) no broadcast or common carrier or aeronautical en route or aeronautical fixed station license may be granted to or held by:
(i) an alien or its representative;
(ii) a corporation organized under the laws of a foreign government; or
(iii) a corporation of which more than one fifth of the capital stock is owned of record or voted by an alien or its representative, a foreign government or its representative, or a corporation organized under the laws of a foreign country; and
(c) absent a specific finding that that the public interest would be served by permitting foreign ownership of a broadcast license, no broadcast station license shall be granted to any corporation directly or indirectly controlled by another corporation of which more than one fourth of the capital stock is owned of record or voted by an alien or its representative, a foreign government or its representative, or a corporation organized under the laws of a foreign country.
Sector: Professional Services - Patent Attorneys, Patent Agents, and Other Practice before the Patent and Trademark Office
Sub-Sector:
Obligations Concerned: National Treatment (Article 15.3)Most-Favored-Nation Treatment (Article 15.4)Local Presence (Article 15.6)
Level of Government:Central
Measures: 35 U.S.C. Chapter 3 (practice before the U.S. Patent and Trademark Office) 37 C.F.R. Part 11 (representation of others before the U.S. Patent and Trademark Office)
Description: Cross-Border Trade in Services
As a condition to be registered to practice for others before the U.S. Patent and Trademark Office (USPTO):
(a) a patent attorney must be a U.S. citizen or an alien lawfully residing in the United States (37 C.F.R. § 11.6(a));
(b) a patent agent must be a U.S. citizen, an alien lawfully residing in the United States, or a non-resident who is registered to practice in a country that permits patent agents registered to practice before the USPTO to practice in that country; the latter is permitted to practice for the limited purpose of presenting and prosecuting patent applications of applicants located in the country in which he or she resides (37 C.F.R. §11.6(c)); and
(c) a practitioner in trademark and non-patent cases must be an attorney licensed in the United States, a “grandfathered” agent, an attorney licensed to practice in a country that accords equivalent treatment to attorneys licensed in the United States, or an agent registered to practice in such a country; the latter two are permitted to practice for the limited purpose of representing parties located in the country in which he or she resides (37 C.F.R. § 11.14(a)-(c)).
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Articles 14.4 and 15.3) Most-Favored-Nation Treatment (Articles 14.5 and 15.4) Performance Requirements (Article 14.10) Senior Management and Boards of Directors (Article 14.11) Local Presence (Article 15.6)
Level of Government: Regional
Measures: All existing non-conforming measures of all states of the United States, the District of Columbia, and Puerto Rico
Description: Investment and Cross-Border Trade in Services
ANNEX I. SCHEDULE OF CANADA
INTRODUCTORY NOTES
1. Description provides a general non-binding description of the measure for which the entry is made.
2. Obligations Concerned specifies the obligations referred to in Article 14.12 (Non- Conforming Measures) and Article 15.7 (Non-Conforming Measures) that do not apply to the listed measures.
3. In the interpretation of an entry, all elements of the entry shall be considered. An entry shall be interpreted in light of the relevant provisions of the Chapters against which the entry is taken. To the extent that:
(a) the Measures element is qualified by a liberalization commitment from the Description element, the Measures element as so qualified prevails over all other elements; and
(b) the Measures element is not so qualified, the Measures element prevails over other elements, unless a discrepancy between the Measures element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measures element prevails, in which case the other elements prevail to the extent of that discrepancy.
Reservation I-C-1
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4) Performance Requirements (Article 14.10) Senior Management and Boards of Directors (Article 14.11)
Level of Government: Central
Measures: Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)
Investment Canada Regulations, SOR/85-611
Description: Investment
1. Except as set out in paragraphs 5 and 9, the Director of Investments will review a direct “acquisition of control”, as defined in the Investment Canada Act, of a Canadian business by a WTO investor if the value of the Canadian business is not less than C$1 billion, adjusted in accordance with the applicable methodology in January of each subsequent year, starting in 2019, as set out in the Investment Canada Act.
2. Notwithstanding the definition of “investor of a Party” in Article 14.1 (Definitions), only WTO investors or entities controlled by WTO investors provided for in the Investment Canada Act may benefit from the CAD $1 billion threshold.
3. Except as set out in paragraphs 5 and 9, the Director of Investments will review a direct “acquisition of control”, as defined in the Investment Canada Act, of a Canadian business by a trade agreement investor if the value of the Canadian business is not less than CAD $1.5 billion, adjusted in accordance with the applicable methodology in January of each subsequent year, starting in 2019, as set out in the Investment Canada Act.
4. Notwithstanding the definition of “investor of a Party” in Article 14.1 (Definitions), only a trade agreement investor or an entity controlled by a trade agreement investor as provided for in the Investment Canada Act may benefit from the CAD $1.5 billion review threshold.
5. The higher threshold in paragraphs 1 and 3 does not apply to a direct acquisition of control by a state-owned enterprise of a Canadian business. These acquisitions are subject to review by the Director of Investments if the value of the Canadian business is not less than C$398 million in 2018, adjusted in accordance with the applicable methodology in January of each subsequent year as set out in the Investment Canada Act.
6. An investment subject to review under the Investment Canada Act may not be implemented unless the Minister responsible for the Investment Canada Act advises the applicant that the investment is likely to be of net benefit to Canada. This determination is made in accordance with six factors described in the Investment Canada Act, summarized as follows:
(a) the effect of the investment on the level and nature of economic activity in Canada, including the effect on employment, on the use of parts, components, and services produced in Canada and on exports from Canada;
(b) the degree and significance of participation by Canadians in the investment;
(c) the effect of the investment on productivity, industrial efficiency, technological development, and product innovation in Canada;
(d) the effect of the investment on competition within an industry in Canada;
(e) the compatibility of the investment with national industrial, economic, and cultural policies, taking into consideration industrial, economic, and cultural policy objectives enunciated by the government or legislature of a province likely to be significantly affected by the investment; and
(f) the contribution of the investment to Canada’s ability to compete in world markets.
7. In making a net benefit determination, the Minister, through the Director of Investments, may review plans under which the applicant demonstrates the net benefit to Canada of the proposed acquisition. An applicant may also submit an undertaking to the Minister in connection with a proposed acquisition that is the subject of review. In the event of noncompliance with an undertaking by an applicant, the Minister may seek a court order directing compliance or any other remedy authorized under the Investment Canada Act.
8. A non-Canadian who establishes or acquires a Canadian business, other than those that are subject to review must notify the Director of Investments.
9. The review thresholds set out in paragraphs 1, 3, and 5 do not apply to an acquisition of a cultural business.
10. In addition, the specific acquisition or establishment of a new business in designated types of business activities relating to Canada’s cultural heritage or national identity, which are normally notifiable, may be subject to review if the Governor in Council authorises a review in the public interest.
11. An indirect “acquisition of control” of a Canadian business by an investor of a Party other than a cultural business is not reviewable.
12. Notwithstanding Article 14.10 (Performance Requirements), Canada may impose requirements or enforce a commitment or undertaking in connection with the establishment, acquisition, expansion, conduct, operation or management of an investment of an investor of a Party or of a non-Party for the transfer of technology, production process or other proprietary knowledge to a national or enterprise, affiliated to the transferor, in Canada in connection with the review of an acquisition of an investment under the Investment Canada Act.
13. Except for requirements, commitments or undertakings relating to technology transfer as set out in paragraph 12 of this entry, Article 14.10 (Performance Requirements) applies to requirements, commitments or undertakings imposed or enforced under the Investment Canada Act.
14. For the purposes of this entry:
(a) a non-Canadian means an individual, government or agency thereof or an entity that is not Canadian; and
(b) Canadian means a Canadian citizen or permanent resident, a government in Canada or agency thereof, or a Canadian-controlled entity as described in the Investment Canada Act.
Reservation I-C-2
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4) Senior Management and Boards of Directors (Article 14.11)
Level of Government: Central
Measures: As set out in the Description element
Description: Investment
1. Canada or a province or territory, when selling or disposing of its equity interests in, or the assets of, an existing government enterprise or an existing governmental entity, may prohibit or impose limitations on the ownership of these interests or assets and on the ability of owners of these interests or assets to control a resulting enterprise by investors of a Party or of a third country or their investments. With respect to a sale or other disposition, Canada or a province or territory may adopt or maintain a measure relating to the nationality of senior management or members of the board of directors.
2. For the purposes of this entry:
(a) a measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition, prohibits or imposes a limitation on the ownership of equity interests or assets or imposes a nationality requirement described in this entry is an existing measure; and
(b) government enterprise means an enterprise owned or controlled through ownership interests by Canada or a province or territory, and includes an enterprise established after the date of entry into force of this Agreement solely for the purposes of selling or disposing of equity interests in, or the assets of, an existing state enterprise or governmental entity.
Reservation I-C-3
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4)
Level of Government: Central
Measures: Canada Business Corporations Act, R.S.C. 1985, c. C-44
Canada Business Corporations Regulations, 2001, SOR/2001-512
Canada Cooperatives Act, S.C. 1998, c. 1
Canada Cooperatives Regulations, SOR/99-256
Description: Investment
1. A corporation may place constraints on the issue, transfer and ownership of shares in a federally incorporated corporation. The object of those constraints is to permit a corporation to meet Canadian ownership or control requirements, under certain laws set out in the Canada Business Corporations Regulations, 2001, in sectors where Canadian ownership or control is required as a condition to receive licences, permits, grants, payments or other benefits. In order to maintain certain Canadian ownership levels, a corporation is permitted to sell shareholders' shares without the consent of those shareholders, and to purchase its own shares on the open market.
2. The Canada Cooperatives Act provides that constraints may be placed on the issue or transfer of investment shares of a cooperative to persons not resident in Canada, to permit cooperatives to meet Canadian ownership requirements to obtain a licence to carry on a business, to become a publisher of a Canadian newspaper or periodical or to acquire investment shares of a financial intermediary and in sectors where ownership or control is a required condition to receive licences, permits, grants, payments, and other benefits. Where the ownership or control of investment shares would adversely affect the ability of a cooperative to maintain a level of Canadian ownership or control, the Canada Cooperatives Act provides for the limitation of the number of investment shares that may be owned or for the prohibition of the ownership of investment shares.
3. For the purposes of this entry Canadian means “Canadian” as defined in the Canada Business Corporations Regulations, 2001 or in the Canada Cooperatives Regulations.
Reservation I-C-4
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4)
Level of Government: Central
Measures: Citizenship Act, R.S.C. 1985, c. C-29
Foreign Ownership of Land Regulations, SOR/79-416
Description: Investment
1. The Foreign Ownership of Land Regulations are made pursuant to the Citizenship Act and the Agricultural and Recreational Land Ownership Act, R.S.A. 1980, c. A-9. In Alberta, an ineligible person or foreign owned or controlled corporation may only hold an interest in controlled land consisting of a maximum of two parcels containing, in the aggregate, a maximum of 20 acres.
2. For the purposes of this entry:
ineligible person means:
(a) a natural person who is not a Canadian citizen or permanent resident;
(b) a foreign government or agency thereof; or
(c) a corporation incorporated in a country other than Canada; and
controlled land means land in Alberta but does not include:
(a) land of the Crown in right of Alberta;
(b) land within a city, town, new town, village or summer village; and
(c) mines or minerals.
Reservation I-C-5
Sector: All Sectors
Sub-Sector:
Obligations Concerned: National Treatment (Article 14.4)