Article 8.9. Recognition
- For the purposes of the fulfilment, in whole or in part, of a Party’s standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to the requirements of paragraph 4, it may recognise the education or experience obtained, requirements met, or licences or certifications granted, in the Area of the other Party or in the territory of a non-party. That recognition, which may be achieved through harmonisation or otherwise, may be based on an agreement or arrangement with the Party or non-party concerned, or may be accorded autonomously.
- If a Party recognises, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party, nothing in Article 8.4 shall be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted, in the Area of the other Party.
- A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity to the other Party, on request, to negotiate its accession to that agreement or arrangement, or to negotiate a comparable agreement or arrangement. If a Party accords recognition autonomously, it shall afford adequate opportunity to the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party’s Area should be recognised.
- A Party shall not accord recognition in a manner that would constitute a means of discrimination between the Parties or between a Party and non-parties in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.
- As set out in Annex 8-A, the Parties shall endeavour to facilitate trade in professional services.
Article 8.10. Denial of Benefits
- A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-party, and the denying Party adopts or maintains measures with respect to the non-party or a person of the non-party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
- A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-party or by persons of the denying Party that has no substantial business activities in the Area of the other Party.
Article 8.11. Transparency
- Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding its laws and regulations that relate to the subject matter of this Chapter. (8)
- If a Party does not provide advance notice and opportunity for comment pursuant to Article 16.2.2 (Publication) of Chapter 16 (Transparency and Anti-Corruption) with respect to laws and regulations that relate to the subject matter in this Chapter, it shall, to the extent practicable, provide in writing or otherwise notify interested persons of the reasons for not doing so.
- To the extent possible, each Party shall allow reasonable time between publication of final laws and regulations and the date when they enter into effect.
Article 8.12. Payments and Transfers
1. Each Party shall permit all transfers and payments that relate to the trade in services to be made freely and without delay into and out of its Area.
2. Each Party shall permit transfers and payments that relate to the trade in services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.
3. Notwithstanding paragraph 1 and paragraph 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory and good faith application of its laws and regulations (9) that relate to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, futures, options or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 8.13. Contact Points
- Each Party shall designate one or more contact points to facilitate communication between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party.
- Each Party shall notify the other Party of any amendments to the details of its contact points.
Annex 8-A. PROFESSIONAL SERVICES
General Provisions
1. Each Party shall encourage its relevant bodies to establish or maintain dialogues with the relevant bodies of the other Party with the aim of facilitating the supply of professional services between the Parties through greater recognition of education or experience obtained in the Area of the other Party. This includes encouraging relevant professional bodies to engage in cooperation with a view to formalising recognition of licensing, registration and professional standards.
2. Each Party shall encourage its relevant bodies to take into account agreements that relate to professional services in the development of agreements on the recognition of professional qualifications, licensing and registration.
3. Each Party may encourage its relevant bodies, if feasible, to consider taking steps to implement a temporary or project specific licensing or registration regime based on a foreign service supplier’s home licence or recognised professional body membership, without the need for further written examination. That temporary or limited licence regime should not operate to prevent a foreign service supplier from gaining a local licence once that service supplier satisfies the applicable local licensing requirements.
Engineering and Architectural Services
4. Further to paragraph 2, the Parties recognise the efforts in APEC to promote the mutual recognition of professional competence in engineering and architecture, and the professional mobility of these professions, under the APEC Engineer and APEC Architect frameworks.
5. Each Party shall encourage its relevant bodies to consider improving and expanding existing mutual recognition arrangements with the relevant bodies of the other Party to minimise or streamline the recognition requirements for engineering and architectural services, with a view to facilitating trade between the Parties in these services sectors.
Future Work on Professional Services
6. The Parties shall meet within two years after the date of entry into force of this Agreement, under the auspices of the Joint Commission, to facilitate the fulfilment of the objectives of this Annex and determine the future direction of possible work between the Parties. Further meetings shall occur at a time agreed by the Parties.
7. The Parties shall liaise, as appropriate, to support their relevant professional and regulatory bodies in pursuing the activities outlined in this Annex. Such support could include providing relevant points of contact, facilitating meetings and providing information regarding each Party’s regulation of professional services within its Area.
8. The Joint Commission shall consider any recommendations for initiatives to facilitate trade in professional services and make decisions with respect to those recommendations within a reasonable period of time. Based on the Joint Commission’s decisions, each Party shall encourage its respective competent authorities, where appropriate, to implement the agreed recommendations within an agreed time.
Annex I. SCHEDULE OF HONG KONG, CHINA (Existing Non-Conforming Measures for Trade in Services) (1)
EXPLANATORY NOTES
1. This Schedule sets out, pursuant to Article 8.7.1 (Non-Conforming Measures) of Chapter 8 (Trade in Services), the existing measures of Hong Kong, China that are not subject to some or all of the following obligations:
(a) Article 8.3 (National Treatment) of Chapter 8 (Trade in Services);
(b) Article 8.4 (Most-Favoured-Nation Treatment) of Chapter 8 (Trade in Services);
(c) Article 8.5 (Market Access) of Chapter 8 (Trade in Services); or
(d) Article 8.6 (Local Presence) of Chapter 8 (Trade in Services).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Industry Classification, where referenced, refers to the activity covered by the non-conforming measure, according to:
(i) 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);
(ii) the Services Sectoral Classification List published by the WTO (WTO document MTN.GNS/W/120 of July 10, 1991); or
(iii) the Maritime Model Schedule appended as Appendix 2 to the WTO document JOB/SERV/137 of March 7, 2013,
where appropriate;
(c) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 8.7.1(a) (Non-Conforming Measures) of Chapter 8 (Trade in Services), do not apply to the listed measure(s) pursuant to paragraph 5;
(d) Measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the Measures element:
(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement; and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(e) Description sets out the non-conforming measure for which the entry is made.
3. For the purposes of this Annex:
(a) “Mode 1” means the supply of a service from the Area of a Party into the Area of the other Party;
(b) “Mode 2” means the supply of a service in the Area of a Party to a person of the other Party;
(c) “Mode 3” means the supply of a service by a service supplier of a Party, through commercial presence in the Area of the other Party;
(d) “Mode 4” means the supply of a service by a natural person of a Party in the Area of the other Party; and
(e) “Trade in Services” means the supply of a service as defined in subparagraph (a), subparagraph (b), subparagraph (c) and subparagraph (d).
4. A measure that is only inconsistent with Article 8.6 (Local Presence) of Chapter 8 (Trade in Services) need not be reserved against Article 8.3 (National Treatment) of Chapter 8 (Trade in Services).
5. In accordance with Article 8.7.1 (Non-Conforming Measures) of Chapter 8 (Trade in Services), the obligations of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures set out in the Description element of that entry.
6. Where an inconsistency arises in relation to the interpretation of an entry, the Description element of the entry shall prevail to the extent of the inconsistency.
I-HKC-1 (Services)
Sector: BUSINESS SERVICES Professional Services
Industry Classification: CPC 862 Accounting, auditing services and bookkeeping
Obligations Concerned: National Treatment (Article 8.3) Market Access (Article 8.5) Local Presence (Article 8.6)
Measures: Section 20AAL of the Accounting and Financial Reporting Council Ordinance (Cap.588)
Description: Provision of statutory auditing services is limited to corporate practices and natural persons licensed as certified public accountants (practising), either as sole proprietors or in partnership.
A practising certificate shall not be issued to an applicant unless the person is a certified public accountant ordinarily resident in Hong Kong, China, possesses local experience and knowledge of local law and practice, has complied with the specified continuing professional development requirements, is not bankrupt or has not entered into a voluntary arrangement with the applicant’s creditors, is not subject to a disciplinary order/sanction, intends to practise as a certified public accountant (practising) and satisfies the fit and proper requirement.
I-HKC-2 (Services)
Sector: BUSINESS SERVICES Professional Services
Industry Classification: CPC 8671 Architectural services
Obligations: Concerned National Treatment (Article 8.3) Local Presence (Article 8.6)
Measures: Section 13 of (Cap. 408) the Architects Registration Ordinance
Description: To be registered as a Registered Architect, a person has to have one year’s relevant experience in Hong Kong, China before the date of his or her application for registration; and to be ordinarily resident in Hong Kong, China.
I-HKC-3 (Services)
Sector BUSINESS SERVICES Professional Services
Industry Classification: CPC 8672 Engineering services CPC 8673 Integrated engineering services
Obligations Concerned: National Treatment (Article 8.3) Local Presence (Article 8.6)
Measures: Section 12 of (Cap. 409) the Engineers Registration Ordinance
Description: To be registered as a Registered Professional Engineer, a person has to have one year’s relevant experience in Hong Kong, China before the date of his or her application for registration; and to be ordinarily resident in Hong Kong, China.
I-HKC-4 (Services)
Sector: BUSINESS SERVICES Professional Services
Industry Classification: CPC 8674 Urban planning and landscape architectural services
Obligations Concerned: National Treatment (Article 8.3) Local Presence (Article 8.6)
Measures: Section 12 of (Cap. 418) the Planners Registration Ordinance Section 12 of the Landscape Ordinance (Cap. 516) Architects Registration
Description: To be registered as a Registered Professional Planner, a person has to have one year’s relevant experience in Hong Kong, China before the date of his or her application for registration; and to be ordinarily resident in Hong Kong, China.
To be registered as a Registered Landscape Architect, a person has to have one year’s relevant experience in Hong Kong, China before the date of his or her application for registration; and to be ordinarily resident in Hong Kong, China.
I-HKC-5 (Services)
Sector: BUSINESS SERVICES Rental/Leasing Services without Operators
TRANSPORT SERVICES Maritime Transport Services
Industry Classification:
CPC 83103 Rental/Leasing Services without Operators Relating to ships
CPC 7211 Passenger transportation
CPC 7212 Freight transportation
CPC 7213 Rental of vessels with crew
Obligations Concerned: National Treatment (Article 8.3)
Measures: Section 23B of the Inland Revenue Ordinance (Cap. 112)
Description: Income derived from international operation of ships registered in the Hong Kong Shipping Register is exempted from Hong Kong, China’s profit tax.
I-HKC-6 (Services)
Sector: BUSINESS SERVICES
Other Business Services
Industry Classification: CPC 882 Services incidental to fishing
Obligations Concerned: National Treatment (Article 8.3)
Measures: Fisheries Protection Ordinance (Cap. 171) Section 12 of the Merchant Ordinance (Cap. 548) Shipping (Local Vessel)
Description: Under the Fisheries Protection Ordinance (Cap. 171), only 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.
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 Hong Kong, China, the owner of a local vessel shall be:
(a) an individual who holds a valid Hong Kong Identity Card and who is ordinarily resident in Hong Kong, China; or
(b) a company or registered non-Hong Kong company as defined by Section 2(1) of the Companies Ordinance (Cap. 622).
I-HKC-7 (Services)
Sector: BUSINESS SERVICES Other Business Services
Industry Classification: CPC 883+5115 Services incidental to mining
Obligations Concerned: National Treatment (Article 8.3)
Measures: Section 7(1) of the Mining Ordinance (Cap. 285)
Description: When not resident in Hong Kong, China 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 Hong Kong, China, with full power to represent the holder or lessee in all matters relating to his or her licence or lease.
I-HKC-8 (Services)
Sector: BUSINESS SERVICES Other Business Services
TRANSPORT SERVICES Services auxiliary to all modes of transport
Industry Classification: CPC 884+885 Services incidental to manufacturing except for 88442 CPC 742 Storage and warehouse services
Obligations Concerned: National Treatment (Article 8.3)
Measures: Sections 7 and 8A Ordinance (Cap. 109) of the Dutiable Commodities
Regulation 22 of the Dutiable Commodities Regulations (Cap. 109A)
Description: 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 Hong Kong resident holding a valid Hong Kong Identity Card.
I-HKC-9 (Services)
Sector: BUSINESS SERVICES Other Business Services
Industry Classification: CPC 8847 Manufacture of rubber and plastics products, on a fee or contract basis
CPC 885 Services incidental to the manufacture of metal products, machinery and equipment
Obligations: Concerned National Treatment (Article 8.3)
Measures: Sections 5(1), 5(2)(c)(v) and 30 of the Prevention of Copyright Piracy Ordinance (Cap. 544)
Description: 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 Hong Kong resident holding a valid Hong Kong Identity Card.
I-HKC-10 (Services)
Sector: BUSINESS SERVICES Other Business Services
Industry Classification: CPC 87302-87305 Security services
Obligations Concerned: Market Access (Article 8.5)
Measures: Section 11 of the Security and Guarding Services Ordinance (Cap. 460)
Description: A service supplier may only provide security services in the form of a company incorporated in Hong Kong, China under the Companies Ordinance (Cap. 622).
I-HKC-11 (Services)
Sector: BUSINESS SERVICES Other Business Services
Industry Classification: CPC 8675 Related scientific and technical consulting services