2. This Chapter shall be without prejudice to the interpretation or application of other international agreements relating to investment to which Hong Kong, China and Georgia are parties. (9) For greater certainty, in case of conflict, the bilateral agreement concerning promotion and protection of investment to be entered into between the Parties shall prevail.
Article 3. National Treatment
Each Party shall, subject to Article 4 (Reservations) and the reservations set out in Annex 10-1 (Schedules of Reservations), accord to juridical and natural persons of the other Party and to the commercial presence of such persons, treatment no less favourable than that it accords, in like circumstances, to its own juridical and natural persons and to the commercial presence of such persons.
Article 4. Reservations
1. Article 3 (National Treatment) shall not apply to:
(a) any reservation of a Party as set out in Annex 10-1 (Schedules of Reservations);
(b) an amendment to a reservation referred to in subparagraph (a), to the extent that the amendment does not decrease the conformity of the reservation with Article 3 (National Treatment); and
(c) any new reservation adopted by a Party, and incorporated into Annex 10-1 (Schedules of Reservations) which does not affect the overall level of commitments of that Party under this Agreement;
to the extent that such reservations are inconsistent with Article 3 (National Treatment).
2. A Party may, at any time, either upon request of the other Party or unilaterally, remove, in whole or in part, reservations set out in Annex 10-1 (Schedules of Reservations) by written notification to the other Party.
3. A Party may, at any time, incorporate a new reservation into Annex 10-1 (Schedules of Reservations) in accordance with subparagraph 1(c) by written notification to the other Party. On receiving such written notification, the other Party may request consultations regarding the reservation. At the written request of a Party, the Party incorporating the new reservation shall enter into consultations with the requesting Party within 30 days after the date of receipt of the request.
Article 5. Key Personnel
1. Each Party shall, subject to its laws and regulations, endeavour to grant natural persons of the other Party who have established or seek to establish commercial presence in that Party, and key personnel employed by natural or juridical persons of the other Party, temporary entry and stay in its Area in order to engage in activities connected with commercial presence.
2. Each Party shall, subject to its laws and regulations, endeavour to permit natural or juridical persons of the other Party, and their commercial presence, to employ, in connection with commercial presence, any key personnel of the natural or juridical personâs choice regardless of nationality and citizenship provided that such key personnel has been permitted to enter, stay and work in its Area and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key personnel.
Article 6. Right to Regulate
1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure consistent with this Chapter that is in the public interest, such as measures to meet health, safety or environmental concerns and reasonable measures for prudential purposes.
2. A Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, measures provided in paragraph 1 as an encouragement for the establishment, acquisition, expansion or retention in its Area of the commercial presence of a juridical or natural person of the other Party.
Article 7. Transparency
1. Each Party shall promptly publish, make publicly available or provide upon the request of the other Party, its laws, regulations, procedures and administrative rulings and judicial decisions of general application as well as_ international agreements which may affect the commercial presence of juridical and natural persons of the other Party in the Area of the former Party.
2. Nothing in this Chapter shall require a Party to furnish or allow access to any confidential or proprietary information, including information concerning the commercial presence of a particular juridical or natural person, which is designated as confidential under its internal legislation or the disclosure of which would impede law enforcement or be contrary to its laws protecting confidentiality or prejudice legitimate commercial interests of such juridical or natural person.
Article 8. Payments and Transfers
1. Except in the circumstances envisaged in Article 6 (Measures to Safeguard the Balance-of-Payments) of Chapter 17 (General Provisions and Exceptions), a Party shall not apply restrictions on current payments and capital movements relating to commercial presence activities in non-services sectors.
2. Nothing in this Chapter shall affect the rights and obligations that apply to the Parties under the Articles of Agreement of the International Monetary Fund ("IMF"), including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that a Party shall not impose restrictions on any capital transactions inconsistent with its obligations under this Chapter, except under Article 6 (Measures to Safeguard the Balance of Payments) of Chapter 17 (General Provisions and Exceptions), or at the request of the IMF.
Article 9. Review
This Chapter shall be subject to periodic review within the framework of the FTA Joint Commission regarding the possibility of further developing the Parties' commitments.
ANNEX 10-1. HONG KONG, CHINA’S SCHEDULE OF RESERVATIONS
Sector: Fishing
Sub-sector: -
Legal source or authority of the measure:
Fisheries Protection Ordinance (Cap. 171)
Section 12 of the Merchant Shipping (Local Vessels) Ordinance (Cap. 548)
Succinct description of the measure:
Under the Fisheries Protection Ordinance (Cap. 171), certificated local fishing vessels which possess a valid operating licence under the Merchant Shipping (Local Vessels) Ordinance (Cap. 548) can be registered for engaging in fishing activities within the waters of Hong Kong, China (HKC). Fishing with the use of non-local fishing vessels within the waters of HKC is prohibited.
Under the Merchant Shipping (Local Vessels) Ordinance (Cap. 548), fishing vessels must be certificated. To be certificated as a Local Vessel Class III “fishing vessel” plying within the waters of HKC, if the owner of the vessel is an individual, the owner shall be an individual who holds a valid HKC Identity Card and who is ordinarily resident in HKC.
Purpose or motivation of the measure:
To conserve the depleted fisheries resources in HKC by controlling the size of fishing fleets operating in the waters of HKC.
Sector: Manufacture and storage of dutiable commodities
Sub-sector: -
Legal source or authority of the measure:
Sections 7 & 8A of the Dutiable Commodities Ordinance (Cap. 109)
Regulation 22 of the Dutiable Commodities Regulations (Cap. 109A)
Succinct description of the measure:
To apply for a licence for the manufacture or storage of dutiable commodities under the Dutiable Commodities Ordinance (Cap. 109), the applicant has to appoint a responsible person to be held responsible for the running and management of the premises concerned. The responsible person has to be a HKC resident holding a valid HKC Identity Card.
Purpose or motivation of the measure:
To ensure the effective enforcement of excise control and revenue protection.
Sector: Manufacture of optical discs and stampers
Sub-sector: -
Legal source or authority of the measure: Sections 5(1), 5(2)(c)(v) and 30 of the Prevention of Copyright Piracy Ordinance (Cap. 544)
Succinct description of the measure:
To apply for a licence for the manufacture of optical discs or stampers under the Prevention of Copyright Piracy Ordinance (Cap. 544), the applicant has to be a HKC resident holding a valid HKC Identity Card.
Purpose or motivation of the measure:
To ensure the effective enforcement of copyright protection.
Sector: Mining
Sub-sector: -
Legal source or authority of the measure:
Section 7(1) of Mining Ordinance (Cap. 285)
Succinct description of the measure:
When not resident in HKC every holder of a prospecting or mining licence and every lessee of a mining lease shall at all times have a duly authorised attorney, approved by the Director of Lands, resident in HKC, with full power to represent the holder or lessee in all matters relating to his licence or lease.
Purpose or motivation of the measure:
To ensure the effective enforcement of regulatory measures on mining.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure: HKC reserves the right to adopt or maintain any measure with respect to the acquisition or ownership of land and properties in HKC.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to land and property acquisition or ownership in HKC.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure:
HKC reserves the right to adopt or maintain any measure with respect to the acquisition, sale or other disposition by natural persons of the other Party of bonds, bills, notes, or other kinds of debt securities or instruments issued by the Government of HKC.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to bonds, bills, notes, or other kinds of debt securities or instruments issued by the Government of HKC.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure:
HKC reserves the right to adopt or maintain any measure with respect to the privatisation or divestment of corporate entities or assets in government ownership.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to the privatisation or divestment of corporate entities or assets in government ownership.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure:
HKC reserves the right to adopt or maintain any measure in respect of subsidies or grants, including government-supported loans, guarantees and insurance, that is not inconsistent with HKC’s obligations under the WTO Agreement.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to subsidies or grants, including government-supported loans, guarantees and insurance, that are not inconsistent with HKC’s obligations under the WTO Agreement.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure:
HKC reserves the right to adopt or maintain any measure in respect of government procurement that is not inconsistent with HKC’s obligations under the WTO Agreement.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to government procurement that are not inconsistent with HKC’s obligations under the WTO Agreement.
Sector: All sectors
Sub-sector: -
Legal source or authority of the measure: -
Succinct description of the measure:
HKC reserves the right to adopt or maintain any measure in respect of taxation that is not inconsistent with HKC’s obligations under the WTO Agreement.
Purpose or motivation of the measure:
To provide policy flexibility for measures with respect to taxation that are not inconsistent with HKC’s obligations under the WTO Agreement.
ANNEX 10-1. GEORGIA’S SCHEDULE OF RESERVATIONS
Sector: Fishing
Sub-sector: -
Legal source or authority of the measure: Resolution #138 of the Government of Georgia (August 11, 2005) on “Approval of Regulations on Rules and Conditions on Issuance of Fishing License”
Succinct description of the measure:
Fishing license can be granted only to the resident juridical or natural persons of Georgia.
Purpose or motivation of the measure:
Fisheries policy considerations.
Sector: Agriculture
Sub-sector: Agricultural Cooperation
Legal source or authority of the measure:
Law of Georgia on “Agricultural Cooperative” (July 12, 2013)
Succinct description of the measure:
A member of an agricultural cooperative may be an 18-year or older citizen of Georgia and/or agricultural cooperative registered in Georgia, which directly participates in agricultural activities carried out by the cooperative and owns membership share.
The citizen of foreign country and/or other legal entity of private law (including legal entities registered in foreign country) has a right to be an associated member of the agricultural cooperative, provided they have contributed membership fee, based on this law or decision of cooperative members’ assembly.
The associated member may participate in an assembly, but he/she has only the right of deliberative vote.
The associated member has the right to receive dividends from the contributed membership fee; He/she can be elected as the member of the supervisory board or executive council.
The associated member may not be directly involved in agricultural activities carried out by the agricultural cooperative.
Purpose or motivation of the measure:
Agricultural cooperation policy considerations.
Sector: Agriculture
Sub-sector: Purchasing of a state owned agricultural land
Legal source or authority of the measure: Law of Georgia on “State Property” (July 21, 2010)
Succinct description of the measure:
A state owned agricultural land can be purchased by the citizen of Georgia or a private legal entity, registered in Georgia. Georgia reserves the right to maintain or amend the measure or adopt any other measure with respect to agricultural land.
Purpose or motivation of the measure:
Land policy considerations.
Sector: Power and Energy
Sub-sector: -
Legal source or authority of the measure:
Not applicable
Succinct description of the measure:
Georgia reserves the right to maintain or adopt any measure with respect to the power and energy sector.
Purpose or motivation of the measure:
Energy policy considerations.