1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely convertible currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its laws that relate to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities and derivatives including futures and options;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Annex 16-A Professional Services
General Provisions
1. Each Party shall consult with relevant professional bodies or authorities in its territory to seek to identify professional services if the Parties are mutually interested in establishing a dialogue on issues that relate to the recognition of professional qualifications, licensing or registration.
2. If a professional service described in paragraph 1 is identified, each Party shall encourage its relevant bodies or authorities to establish dialogues with the relevant bodies or authorities of the other Party, with a view to facilitating trade in professional services. The dialogues may consider, as appropriate:
(a) recognition of professional qualifications and facilitating licensing and registration procedures through mutual recognition agreements or arrangements;
(b) autonomous recognition of the education or experience obtained by a candidate in the territory of the other Party, for the purposes of fulfilling some or all of the licensing or examination requirements of that profession;
(c) the development of mutually acceptable standards and criteria for authorization of professional service suppliers from the territory of the other Party, including for education, examinations, experience, continuous professional development and re-certification, scope of practice, conduct and ethics, local knowledge and consumer protection;
(d) temporary or project-specific qualification, licensing or registration based on a foreign supplier’s home license or recognized professional body membership, without the need for further written examination;
(e) the form of association and procedures whereby a foreign-licensed supplier may work in association with a professional service supplier of the Party; or
(f) any other approaches to facilitate authorization to provide services by professionals licensed in the other Party, including by reference to international standards and criteria.
3. If relevant bodies or authorities enter into discussions for the purpose of creating a mutual recognition agreement or arrangement pursuant to paragraph 2(a), those discussions may be guided by Appendix 16-A.1 for the negotiation of that agreement or arrangement.
4. If a mutual recognition agreement or arrangement has been entered into by a relevant body at the national level, each Party shall work with the relevant body to encourage the application and implementation of the agreement.
5. Any temporary or project-specific qualification, licensing or registration of the type referred to in paragraph 2(d) should not operate to prevent a foreign service supplier from gaining a local licence once that service supplier satisfies the applicable local licensing requirements.
6. If applicable, each Party shall encourage its relevant bodies or authorities to recognize through electronic means education or experience obtained or requirements met in the territory of the other Party, including through online portals to apply for recognition, online courses, online registers of licensed individuals, as well as online platforms for continuous professional education and development.
7. Further to any dialogue referred to in paragraph 2(a) through (f), each Party shall encourage its respective relevant bodies or authorities to consider undertaking any related activity within a mutually agreed time as well as through electronic means.
Professional Services Working Group
8. The Parties hereby establish a Professional Services Working Group (“Working Group”), composed of representatives of each Party.
9. The Working Group shall liaise, as appropriate, to support the Parties’ relevant bodies or authorities in pursuing the activities listed in paragraphs 2 and 4. This support may include providing points of contact, facilitating meetings, and providing information regarding regulation of professional services in the Parties’ territories.
10. The Working Group shall meet within one year of the date of entry into force of this Agreement, and thereafter as decided by the Parties, to discuss activities covered by this Annex.
11. The Working Group shall report to the Joint Commission progress undertaken by the Parties pursuant to this Annex, and on the future direction of its work, within 60 days after each meeting.
Appendix 16-A.1
Guidelines for Mutual Recognition Agreements or Arrangements for the Professional Services Sector
Introductory Notes
This Appendix provides practical guidance for governments, relevant bodies, or authorities entering into mutual recognition negotiations for a regulated professional services sector. These guidelines are non-binding and are intended to be used on a voluntary basis. They do not modify or affect the rights and obligations of the Parties under this Agreement.
The objective of these guidelines is to facilitate the negotiation of mutual recognition agreements or arrangements (“MRAs”).
The guidelines listed under this Appendix are provided by way of illustration. The listing of these guidelines is indicative and is intended neither to be exhaustive, nor as an endorsement of the application of these measures by the Parties.
Section A: Conduct of Negotiations and Relevant Obligations
Opening of Negotiations
1. Entities intending to enter into negotiations towards an MRA are encouraged to inform the Professional Services Working Group established under Annex 16-A. The following information may be supplied:
(a) the entities involved in negotiations such as governments, organizations in professional services sector or other entities which have authority, statutory or otherwise, to enter into those negotiations;
(b) a contact point to obtain further information;
(c) the subject of the negotiations (specific activity covered); and
(d) the expected time of the start of negotiations.
Focal Points for Negotiations
2. Entities entering into negotiations towards an MRA are encouraged to establish a single point of contact for negotiations.
Results
3. Upon the conclusion of an MRA, the parties to the MRA are encouraged to inform the Professional Services Working Group, and may supply the following information in their notification:
(a) the content of a new MRA; or
(b) the significant modifications to an existing MRA.
Follow-up Actions
4. As a follow-up action to a conclusion of an MRA, parties to the MRA are encouraged to inform the Professional Services Working Group of the following:
(a) that the MRA complies with the provisions of this Chapter and Chapter 17 (Development and Administration of Measures);
(b) measures and actions taken regarding the implementation and monitoring of the MRA; and
(c) that the text of the MRA is publicly available.
Section B: Form and Content of MRAs
Introductory Note
This Section sets out various issues that may be addressed in MRA negotiations and, if so agreed during the negotiations, included in the MRA. It includes some basic ideas on what a Party might require of foreign professionals seeking to take advantage of an MRA.
Participants
5. The MRA should identify clearly:
(a) the parties to the MRA, such as governments, organizations in the professional services sectors, or other entities who have authority;
(b) competent authorities or organizations other than the parties to the MRA, if any, and their position in relation to the MRA; and
(c) the status and area of competence of each party to the MRA.
Purpose of the MRA
6. The purpose of the MRA should be clearly stated.
Scope of the MRA
7. The MRA should set out clearly:
(a) its definitions;
(b) its scope in terms of the specific profession or titles and professional activities it covers in the territories of the parties;
(c) who is entitled to use the professional titles concerned;
(d) whether the recognition mechanism is based on qualifications, on the license or registration obtained in the jurisdiction of origin or on some other requirement; and
(e) whether it covers temporary access, including a range of possible duration and conditions for renewal, if applicable, permanent access, or both, to the profession concerned.
MRA Provisions
8. The MRA should clearly specify the qualifications, licensing or registration conditions, and their equivalences, to be met for recognition between the parties to the MRA. If the requirements of the various sub-national jurisdictions under an MRA are not identical, the difference and the modalities for the recognition of qualifications between sub-national jurisdictions should be clearly presented.
9. The MRA should seek to ensure that recognition does not require citizenship or any form of residency, or education, experience, or training in the jurisdiction of the host party as a condition for recognition by that host party.
10. The requirements and procedures under the MRA should not discriminate based on age, gender or race.
Eligibility for Recognition – Qualifications
11. If the MRA is based on recognition of qualifications, it should, where applicable, state:
(a) the minimum level of education required (including entry requirements, length of study, and subjects studied);
(b) the minimum level of experience required, including location, length, and conditions of practical training or supervised professional practice prior to licensing, and framework of ethical and disciplinary standards;
(c) examinations required, especially examinations of professional competence;
(d) the extent to which home jurisdiction qualifications are recognised in the jurisdiction of the host party; and
(e) the qualifications which the parties to the MRA are prepared to recognize, for instance, by listing particular diplomas or certificates issued by certain institutions, or by reference to particular minimum requirements to be certified by the authorities of the jurisdiction of origin, including whether the possession of a certain level of qualification would allow recognition for some activities but not others.
Eligibility for Recognition – Licensing, Membership or Registration
12. If the MRA is based on recognition of the licensing, membership, or registration decision made by regulators in the jurisdiction of origin, it should specify the mechanism by which eligibility for such recognition may be established.
Eligibility for recognition – Additional Requirements for Recognition in the Jurisdiction of the Host Party (Compensatory Measures)
13. If it is considered necessary to provide for additional requirements in order to ensure the quality of the service, the MRA should set out the conditions under which those requirements may apply, for example, in case of shortcomings in relation to qualification requirements in the jurisdiction of the host party or knowledge of local law, practice, standards, and regulations. This knowledge should be essential for practice in the jurisdiction of the host party or required because there are differences in the scope of licensed practice.
14. If additional requirements are deemed necessary, the MRA should set out in detail what they entail, for example, examination, aptitude test, additional practice in the jurisdiction of the host party or in the jurisdiction of origin, practical training and language used for examination.
Mechanisms for Implementation
15. The MRA should state:
(a) the rules and procedures to be used to monitor and enforce the provisions of the MRA;
(b) the mechanisms for dialogue and administrative cooperation between the parties to the MRA; and
(c) the means of dispute settlement under the MRA.
16. As a guide to the treatment of individual applicants, the MRA should include details on:
(a) the focal point of contact in each party to the MRA, for information on all issues relevant to the application, such as the name and address, licensing formalities, and information on additional requirements which need to be met in the jurisdiction of the host party;
(b) the duration of procedures for the processing of applications by the relevant authorities of the jurisdiction of the host party;
(c) the documentation required of applicants and the form, including by electronic means, in which it should be presented and any time limits for applications;
(d) acceptance of documents and certificates, including by electronic means if applicable, issued in the jurisdiction of origin in relation to qualifications and licensing;
(e) the procedures of appeal to or review by the relevant authorities in case of the rejection of an individual application for recognition; and
(f) the fees that might be reasonably required.
17. The MRA should also include the following commitments:
(a) that requests about the measures will be promptly dealt with;
(b) that adequate preparation time will be provided if necessary;
(c) that any exams or tests will be arranged with reasonable periodicity and accessibility;
(d) that fees to applicants seeking to take advantage of the terms of the MRA will be in proportion to the cost to the jurisdiction of the host party or organization; and
(e) that information on any assistance programmes in the jurisdiction of the host party for practical training, and any commitments of the jurisdiction of the host party in that context, be supplied.
Licensing and Other Provisions in the Jurisdiction of the Host Party
18. If applicable:
(a) the MRA should also set out the means by which, and the conditions under which, a license is actually obtained following the establishment of eligibility, and what such license entails, such as a license and its content, membership of a professional body, and use of professional or academic titles;
(b) a licensing requirement, other than qualifications and experience, may include, for example:
(i) proof of payment of any required application fees;
(ii) a language proficiency requirement;
(iii) proof of good conduct and financial standing;
(iv) professional indemnity insurance in accordance with the laws of the jurisdiction of the host party;
(v) demonstrate local knowledge of occupational legislation, such as laws, regulations and codes in the host jurisdiction;
(vi) compliance with the host party’s requirements for use of trade or firm names; and
(vii) compliance with the host party’s ethics, for instance independence and incompatibility.
19. The MRA may require the parties to the MRA to communicate to their counterpart any new requirements or modifications to existing requirements that might have an impact on the recognition of qualifications under the MRA.
Revision of the MRA
20. If the MRA includes terms under which it can be reviewed or revoked, the details of these terms should be clearly stated.
Chapter 17. DEVELOPMENT AND ADMINISTRATION OF MEASURES
Article 17.1: Definitions
For the purposes of this Chapter:
authorization means the granting of permission by a competent authority to supply a service referred to in Articles 17.2.1(a) and (b), resulting from a procedure to which a person of a Party must adhere in order to demonstrate compliance with licensing requirements or qualification requirements; and
competent authority means a government of a Party, or non-governmental body in the exercise of powers delegated by a government of a Party, that grants an authorization.
Article 17.2: Scope1
1. This Chapter applies to a measure adopted or maintained by a Party with respect to authorization requirements and procedures relating to:
(a) the cross-border supply of services as defined in Article 16.1 (Cross-Border Trade in Services – Definitions); and
(b) the supply of a service in the territory of that Party by a covered investment.
2. This Chapter does not apply to the aspects of a measure set out in an entry to a Party’s Schedule to Annex I, or to a measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out by that Party in its Schedule to Annex II.
3. This Chapter does not apply to a measure of a Party that is excluded from the scope of:
(a) Chapter 16 (Cross-Border Trade in Services) pursuant to Article 16.2.2 and Article 16.2.3 (Cross-Border Trade in Services – Scope); and
(b) Chapter 15 (Investment) pursuant to Article 15.3.3 (Investment – Relation to other Chapters.
1 This Chapter does not prescribe or impose any particular regulatory provisions regarding the implementation of its disciplines.
Article 17.3: Right to Regulate
The Parties recognize the right of each Party to regulate economic activity within its territory with regard to a matter under this Chapter in order to meet its legitimate policy objectives, such as with respect to: the protection of the environment and addressing climate change; social or consumer protection; or the promotion and protection of health, safety, rights of Indigenous Peoples, gender equality, and cultural diversity.
Article 17.4: Development of authorization requirements and procedures
If a Party adopts or maintains a measure within the scope of this Chapter, that Party shall, with respect to that measure:
(a) ensure that requirements and procedures are based on criteria that:
(i) are objective and transparent, such as competence and ability to supply a service, including to do so in a manner consistent with the Party’s regulatory requirements, such as those relating to health and the protection of the environment; and
(ii) are established in advance and made publicly accessible;2
(b) ensure that procedures do not in themselves unduly prevent fulfilment of a requirement; and
(c) ensure that the measure does not discriminate against a natural person on the basis of gender.3
Article 17.5: Administration of authorization requirements and procedures
1. Each Party shall ensure that its measures of general application within the scope of this Chapter are administered in a reasonable, objective and impartial manner.
2. Each Party shall ensure that authorization procedures used by the competent authority and decisions of the competent authority in the authorization process are impartial with respect to all applicants. The competent authority should reach its decisions in an independent manner and, in particular, should not be accountable to any person supplying a service for which the authorization is required.
2 For Canada, the exercise of statutory discretion conferred on a minister with respect to a decision on the granting of an authorization in the public interest is not inconsistent with subparagraph 1(a)(ii), provided that it is exercised consistently with the object of the applicable statute and not in an arbitrary manner, and that its exercise is not otherwise inconsistent with this Agreement.
3 Differential treatment on the basis of gender that is reasonable and objective, and aims to achieve a legitimate policy objective, and adoption of temporary special measures aimed at accelerating gender equality, shall not be considered discrimination for the purposes of this provision.
3. To the extent practicable, each Party shall avoid requiring an applicant to approach more than one competent authority for each application for authorization.4
4. If a Party requires an authorization, the competent authority of that Party shall:
(a) to the extent practicable, permit an applicant to submit an application at any time;5
(b) allow a reasonable period for the submission of an application when specific time periods for applications exist;
(c) initiate the processing of an application without undue delay;