Level of Government: Central
Measures: 49 U.S.C., Subtitle VII, Aviation Programs
49 U.S.C. 41703
14 C.F.R. Part 375
Description: Cross-Border Trade in Services
Authorisation 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 authorisation if the Party provides effective reciprocity by virtue of this Agreement.
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 75 per cent of the voting interest in the corporation is owned or controlled by U.S. citizens.
Sector: Land Transportation
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Local Presence (Article 10.6)
Level of Government: Central
Measures: 49 U.S.C. 13902(c) (1)
49 U.S.C. 13102
49 U.S.C. 13501
49 CFR Parts 365, 368, 385, 387, 393, 396
Sec. 350, PL 107-87, as amended
Sec. 6901, PL 110-28, as amended
Description:
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 supply truck or bus services between points in the territory of the United States.
Operating authority from the Department of Transportation is required to supply interstate or cross-border for hire bus or truck services in the territory of the United States. For persons of Mexico, grants of operating authority are subject to certain statutory and regulatory requirements.
Investment
Grants of authority for the supply of truck services by persons of Mexico between points in the United States for the transportation of goods other than international cargo is subject to reciprocity.
Sector: Transportation Services – Customs Brokers
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3)
Local Presence (Article 10.6)
Level of Government: Central
Measures: 19 U.S.C. 1641(b)
Description: Investment and Cross-Border Trade in Services
A customs broker’s licence is required to conduct customs business on behalf of another person. An individual may obtain such a licence only if that individual is a U.S. citizen. A corporation, association or partnership may receive a customs broker’s licence 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 licence.
Sector: All
Obligations Concerned: National Treatment (Article 9.4)
Most-Favoured-Nation Treatment (Article 9.5)
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 230.405
Securities 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 (2)
Obligations Concerned: National Treatment (Article 9.4)
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 licences in accordance with the above statutory and regulatory provisions, which provide that, inter alia:
(a) no station licence 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 licence may be granted to or held by:
(i) an alien or its representative;
(ii) a corporation organised 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 organised 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 licence, no broadcast station licence 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 organised under the laws of a foreign country.
Sector: Professional Services – Patent Attorneys, Patent Agents, and Other Practice before the Patent and Trademark Office
Obligations Concerned: National Treatment (Article 10.3)
Most-Favoured-Nation Treatment (Article 10.4)
Local Presence (Article 10.6)
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
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3)
Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4)
Performance Requirements (Article 9.10)
Senior Management and Boards of Directors (Article 9.11)
Local Presence (Article 10.6)
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
For purposes of transparency, Appendix I-A sets out an illustrative, non-binding list of non-conforming measures maintained at the regional level of government.
APPENDIX I-A. Illustrative list of U.S. regional non-conforming measures (3)
| Sectors in which regional measures are described | Sectors in which regional measures do not currently affect U.S. specific commitments under GATS | |
| Business services | ||
| Professional services | ||
| Legal services | x | |
| Accounting, auditing and bookkeeping services | x | |
| Architectural services | x | |
| Engineering services | x | |
| Integrated engineering services | x | |
| Urban planning and landscape architectural services | x | |
| Computer and related services | x | |
| Research and development services | x | |
| Real estate services | x | |
| Rental/leasing services without operators | x | |
| Advertising services | x | |
| Market research and public opinion polling services | x | |
| Management consulting service | x | |
| Services related to management consulting | x | |
| Technical testing and analysis services | x | |
| Services incidental to agriculture, hunting and forestry | x | |
| Services incidental to fishing | x | |
| Services incidental to mining | x | |
| Services incidental to energy distribution | x | |
| Placement and supply services of personnel | x | |
| Investigation and security | x | |
| Related scientific and technical consulting services | x | |
| Maintenance and repair of equipment. | x | |
| Building-cleaning services | x | |
| Photographic services | x | |
| Packaging services | x | |
| Printing, publishing | x | |
| Convention services | x | |
| Other | x | |
| Communication services | ||
| Express delivery services | x | |
| Other delivery services | x | |
| Telecommunication services | x | |
| Audiovisual services | x | |
| Construction and related engineering services | x | |
| Distribution services | x | |
| Educational services | x | |
| Environmental services | x | |
| Health related and social services | x | |
| Tourism and travel related services | x | |
| Recreational, cultural and sporting services (other than audiovisual services) | ||
| Entertainment services (including theatre, live bands and circus services) | x | |
| News agency services | x | |
| Libraries, archives, museums and other cultural services | x | |
| Sporting and other recreational services | x | |
| Transport services | ||
| Air Transport Services (Maintenance and repair of aircraft) | x | |
| Rail Transport Services | x | |
| Road Transport Services | x | |
| Pipeline Transport | x | |
| Services auxiliary to all modes of transport | x | |
| Cargo-handling services | x | |
| Storage and warehouse services | x | |
| Freight transport agency services | x |
APPENDIX I-A. Illustrative list of U.S. regional non-conforming measures (4)
| Sector | Non-conforming measure by jurisdiction |
| Legal services (practice of U.S. law) | Residency: Iowa, Kansas, Massachusetts, Michigan, Minnesota (or maintain an office in Minnesota), Mississippi, Nebraska, New Jersey, New Hampshire, Oklahoma, Rhode Island, South Dakota, Vermont, Virginia and Wyoming. |
| In-state office: District of Columbia, Indiana, Michigan, Minnesota (or maintain individual residency in Minnesota), Mississippi, New Jersey, Ohio, South Dakota and Tennessee. | |
| Legal services (foreign legal consulting) | Residency: Michigan and Texas. |
| In-state office: Arizona, District of Columbia, Indiana, Massachusetts, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio and Utah. | |
| Accounting, auditing and bookkeeping services | Residency: Arizona, Arkansas, Connecticut, District of Columbia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee and West Virginia. |
| In-state office: Arkansas, Connecticut, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, New Hampshire, New Mexico, Ohio, Vermont and Wyoming. | |
| Citizenship: North Carolina. | |
| Architectural services, urban planning and landscape architecture services | Senior Managers and Boards of Directors: Michigan. |
| Engineering services and integrated engineering services | Residency: Idaho, Iowa, Kansas, Maine, Mississippi, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia. |
| Real estate services | Residency: South Dakota. |
| Citizenship: Mississippi and New York. | |
| Placement and supply services of personnel | Citizenship: Arkansas. |
| Investigation and security | Residency: Maine, Michigan and New York. |
| Construction and related engineering services | In-state office: Michigan. |
| Educational services (Cosmetology schools) | Limited number of licenses: Kentucky. |
| Health and related social services | Corporate form: Michigan and New York. |
| Rail transport services | Incorporation requirement: Vermont. |
SCHEDULE OF VIET NAM
INTRODUCTORY NOTES
1. Description sets out the non-conforming measure for which the entry is made.
2. In accordance with Article 9.12 (Non-Conforming Measures) and Article 10.7 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures identified in the Description element of that entry.
3. Classification numbers, where referenced in the Sub-Sector element, refers to the activity covered by the non-conforming measure according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991).
Sector: Professional Services
Sub-Sector: Legal Services (CPC 861)
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3)
Level of Government: Central
Measures: Law No 20/2012/QH13 amending the Law on Lawyers No. 65/2006/QH11 dated 29 June 2006
Description: Investment and Cross-Border Trade in Services
Foreign lawyers organisations (1) and foreign lawyers may provide legal services in Viet Nam, through the following forms:
(a) branches of foreign lawyers organisations;
(b) wholly foreign limited liability law firm;
(c) joint venture limited liability law firm; and
(d) partnerships between foreign lawyer organisations and Viet Nam’s law partnerships.
These entities are not allowed to:
(i) participate in legal proceedings in the capacity of defenders or representatives of their clients before the courts of Viet Nam; and
(ii) participate in legal documentation and certification services (2) of the laws of Viet Nam.
Foreign lawyers practising law in Viet Nam are not permitted to advise on Vietnamese law unless they have graduated from a Vietnamese law college and satisfy requirements applied to like Vietnamese lawyers. They are not allowed to defend or represent clients before the courts of Viet Nam.
Sector: Professional Services
Sub-Sector: Auditing services (CPC 862)
Obligations Concerned: Local Presence (Article 10.6)
Level of Government: Central
Measures: Decree No. 17/2012/ND-CP dated 13 March 2012
Description: Cross-Border Trade in Services
Foreign services suppliers are not permitted to supply auditing services unless they meet the requirements of local presence in Viet Nam.
Sector: Professional Services
Sub-Sector: Veterinary services (CPC 932)
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Administrative measures
Description: Investment
Foreign investment to supply veterinary services may not be permitted in Viet Nam unless such services are supplied by natural persons in the form of private professional practice.
Sector: Distribution services
Sub-Sector:
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Decree No. 23/2007/ND-CP dated 12 February 2007 Circular No. 09/2007/TT-BTM dated 17 July 2007 Circular No. 05/2008/TT-BCT dated 14 April 2008 Decision No. 10/2007/QD-BTM dated 21 May 2007
Description: Investment
The establishment of outlets for retail services (beyond the first one) shall be allowed on the basis of an Economic Needs Test (ENT). Applications to establish more than one outlet shall be subject to pre-established publicly available procedures, and approval shall be based on objective criteria. The main criteria of the ENT include the number of existing service suppliers in a particular geographic area, the stability of market and geographic scale. The establishment of outlets for retail services with area of less than 500 square metres in areas that are planned for commercial activities by the People’s Committee of cities and provinces, and on which the construction of infrastructure has been finished, is not subject to the ENT requirement. Five years after the date of entry into force of this Agreement for Viet Nam, the ENT shall be removed and this entry shall no longer have effect.
Sector: Other Business Services
Sub-Sector: Technical testing and analysis services (CPC 8676)
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Decree No. 140/2007/ND-CP dated 5 September 2007
Description: Investment
Where Viet Nam allows private suppliers of technical testing and analysis services access to a sector previously closed to private sector competition on the grounds that these services had been supplied in the exercise of governmental authority, such services shall be allowed without limitation on foreign ownership five years after such access to private sector competition is allowed.
Sector: Other Business Services
Sub-Sector: Services incidental to agriculture, hunting and forestry (CPC 881)
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Administrative measures
Description: Investment
Foreign investment to supply services incidental to agriculture, hunting and forestry may not be supplied except through a business cooperation contract, a joint venture or the purchase of shares in a Vietnamese enterprise. In the case of a joint venture or the purchase of shares in an enterprise, foreign equity shall not exceed 51 per cent.
Sector: Telecommunications Services
Sub-Sector: Basic services Value-added services
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3)
Level of Government: Central
Measures: Administrative measures
Description: Cross-Border Trade in Services
Satellite-based services: Foreign service suppliers are not allowed to supply satellite-based services unless the services are offered through commercial arrangements with Vietnamese international satellite service suppliers duly licensed in Viet Nam, except satellite-based services offered to off-shore/on sea based business customers, government institutions, facilities-based service suppliers, radio and television broadcasters, official international organisations’ representative offices, diplomatic representatives and consulates, high tech and software development parks and multinational companies (3) that are licensed to use satellite-earth stations. Investment (a) Non facilities-based services: (4) Basic and valued added services: foreign investment to supply non facilities-based services may not be permitted except through a joint venture or the purchase of shares in a Vietnamese enterprise, with foreign equity not exceeding 65 per cent, or 70 per cent in the case of virtual private networks. No later than five years after the date of entry into force of this Agreement, Viet Nam shall eliminate any foreign equity limitation or joint venture requirement. (b) Facilities-based services: (i) Basic services: foreign investment to provide facilities-based services may not be permitted except through a joint venture or the purchase of shares in a Vietnamese enterprise duly licensed in Viet Nam, with foreign equity not exceeding 49 per cent. (ii) Valued added services: foreign investment to provide facilities-based services may not be permitted except through a joint venture or the purchase of shares in a Vietnamese enterprise duly licensed in Viet Nam, with foreign equity not exceeding 51 per cent. No later than five years after the date of entry into force of this Agreement, Viet Nam shall permit foreign equity up to 65 per cent. Foreign service suppliers shall be permitted up to 100 per cent ownership of submarine cable transmission capacity landing at a licensed submarine cable landing station in Viet Nam, and may sell such capacity to any licensed telecommunications operator in Viet Nam, including Internet Service Providers, in Viet Nam.
Sector: Audio-visual Services