Obligations Concerned: National Treatment (Articles 8.3) Local Presence (Article 8.6)
Measures: Section 12 of the Land Survey Ordinance (Cap. 473)
Section 12 of the Surveyors Registration Ordinance (Cap. 417)
Description: Certain statutory land boundary survey services are required to be carried out by Authorised Land Surveyors registered under the Land Survey Ordinance (Cap. 473). To be qualified for registration as an Authorised Land Surveyor, a person has to attain one year local land boundary survey experience in Hong Kong, China.
To be registered as a Registered Professional Surveyor under the Surveyors Registration Ordinance (Cap. 417), 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-12 (Services)
Sector: CONSTRUCTION AND RELATED ENGINEERING SERVICES (2)
General construction work for civil engineering
Installation and assembly work
Building completion and finishing work
Industry Classification: CPC 513 General construction work for civil engineering
CPC 514+516 Installation and assembly work
CPC 517 Building completion and finishing work
Obligations: Concerned National Treatment (Article 8.3) Local Presence (Article 8.6)
Measures: Sections 2, 4, 8B, 30D and 30E of the Buildings Ordinance (Cap. 123)
Part 2 of the Building (Administration) Regulations (Cap. 123A)
Part 4 of the Building (Minor Works) Regulation (Cap. 123N)
Section 13 of the Architects Registration Ordinance (Cap. 408)
Section 12 of the Engineers Registration Ordinance (Cap. 409)
Section 12 of the Surveyors Registration Ordinance (Cap. 417)
Part 1 of the Buildings Ordinance (Cap. 123)
Schedules 9 and 16 of the Lifts and Escalators Ordinance (Cap. 618)
Description:
(a) Non-exempted construction and building works shall be carried out by statutory building agents, including Authorized Persons (AP), Registered Structural Engineers (RSE), Registered Geotechnical Engineers (RGE), Registered Contractors (RC) and Technically Competent Persons (TCP); and that:
(i) to register as an AP, a person shall be a Registered Architect (RA), Registered Professional Engineer (RPE) in the relevant disciplines or Registered Professional Surveyor (RPS) and have one year’s relevant professional experience in Hong Kong, China;
(ii) to register as an RSE or RGE, a person shall be a RPE in the relevant disciplines and have one year’s relevant professional experience in Hong Kong, China;
(iii) to register as a RA or RPE in the relevant disciplines or RPS, a person shall be ordinarily resident in Hong Kong, China;
(iv) to register as a RC, which can be a corporation and include Registered General Building Contractors (RGBCs), Registered Specialist Contractors and Registered Minor Works Contractors (RMWCs), the key personnel of the applicant shall possess adequate working experience, some of which has to be gained in Hong Kong, China; and
(v) to be qualified as a TCP, a person shall possess site experience in Hong Kong, China;
(b) Prescribed inspection of buildings shall be carried out by Registered Inspectors (RIs), while prescribed repair to buildings shall be carried out by RGBCs or RMWCs registered for carrying out minor works items that are relevant to the repair works; and that:
(i) to register as an RI, a person shall be an AP, RSE, RA, RPE in the relevant disciplines or RPS in the relevant divisions and shall possess adequate relevant working experience, some of which has to be gained in Hong Kong, China;
(c) Prescribed inspection of windows shall be carried out by Qualified Persons (QPs), while prescribed repair to windows shall be carried out by RGBCs or RMWCs registered for carrying out minor works items that are relevant to windows; and that:
(i) to be qualified as a QP, a person shall be an AP, RSE, RI, authorized signatory of RGBC or RMWC registered for carrying out minor works items that are relevant to windows; and
(d) Lift works shall be carried out by Registered Lift Engineers (RLE), while escalator works shall be carried out by Registered Escalator Engineers (REE); and that:
(i) to register as a RLE or REE, a person shall be a RPE in relevant disciplines and possessing adequate relevant working experience.
I-HKC-13 (Services)
Sector: EDUCATIONAL SERVICES
Primary education services
Secondary education services
Industry Classification: CPC 921 Primary education services
CPC 922 Secondary education services
Obligations Concerned: National Treatment (Article 8.3) Market Access (Article 8.5)
Measures: Education Ordinance (Cap. 279)
Description With respect to Mode 3,
(a) schools registered under the Education Ordinance (Cap. 279), whether private or public, are required to be managed by managers. Section 30(1)(a) of the Education Ordinance (Cap. 279) provides that the Permanent Secretary for Education may refuse to register an applicant as manager of a school if it appears to him or her that the applicant is not resident in Hong Kong, China for at least nine months in each year; and
(b) an operator of international schools (3) which offers non-local curriculum is subject to the administrative requirements which include proving the established demand for such non-local curriculum in the community.
I-HKC-14 (Services)
Sector EDUCATIONAL SERVICES
Higher education services
Adult education
Industry Classification: CPC 923 Higher education services
CPC 924 Adult education
Obligations Concerned: National Treatment (Article 8.3) Local Presence (Article 8.6)
Measures: Non-local Higher and Professional Education (Regulation) Ordinance (Cap. 493)
Description: (4)
With respect to Mode 1, a person who operates non-local courses which are regulated courses is subject to, inter alia, the following: an application for registration of a regulated course requires, inter alia, the undertaking of a person who states that he or she undertakes to perform, in relation to the course, the functions imposed on a designated person by the Non-local Higher and Professional Education (Regulation) Ordinance (Cap. 493). Such person shall be ordinarily resident in Hong Kong, China and the holder of a Hong Kong Identity Card.
A regulated course conducted in collaboration with a local institution of higher education specified under Schedule 1 to the Non-local Higher and Professional Education (Regulation) Ordinance (Cap. 493) can be exempted from registration subject to requirements stipulated in Section 8 of the Non-local Higher and Professional Education (Regulation) Ordinance (Cap. 493).
Annex I. SCHEDULE OF PERU (Existing Non-Conforming Measures for Trade in Services and Establishment) (1)
EXPLANATORY NOTES
1. This Schedule sets out, pursuant to Article 8.7 (Non-Conforming Measures) of Chapter 8 (Trade in Services) and Article 12.6 (Non-Conforming Measures) of Chapter 12 (Establishment and Related Provisions), existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 8.3 (National Treatment) of Chapter 8 (Trade in Services) or Article 12.4 (National Treatment) of Chapter 12 (Establishment and Related Provisions);
(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);
(d) Article 8.6 (Local Presence) of Chapter 8 (Trade in Services); or
(e) Article 12.5 (Performance Requirements) of Chapter 12 (Establishment and Related Provisions).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector, where referenced, refers to the specific sub-sector for which the entry is made;
(c) To identify the different sectors and sub-sectors in this list, the CPC prov, 1991 is used, which stands for the Central Product Classification according to the definition of the United Nations Statistics Office, Statistical Reports, Series M, No. 77, CPC prov, 1991;
(d) 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) and Article 12.6.1(a) (Non-Conforming Measures) of Chapter 12 (Establishment and Related Provisions), do not apply to the listed measure(s);
(e) Level of Government indicates the level of government maintaining the listed measures;
(f) 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
(g) Description provides a general non-binding description of the measure for which the entry is made.
3. Articles 8.3 (National Treatment) and 8.6 (Local Presence) of Chapter 8 (Trade in Services) are separate disciplines and 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).
4. In accordance with Article 8.7.1 (Non-Conforming Measures) of Chapter 8 (Trade in Services) and Article 12.6.1 (Non-Conforming Measures) of Chapter 12 (Establishment and Related Provisions), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming aspects of the law, regulation or other measure identified in the Measures element of that entry.
I-PERU-1
Sector: All
Sub-Sector:
Obligations Concerned: National Treatment (Article 12.4)
Level of Government: Central
Measures: Political Constitution of Peru (Constitución Política del Perú) (1993), Article 71
Legislative Decree N° 757, “El Peruano” Official Gazette of November 13, 1991, Framework Law for Private Investment Growth (Ley Marco para el Crecimiento de la Inversión Privada), Article 13
Description: Establishment
No foreign national, enterprise constituted under foreign law or enterprise constituted under Peruvian law, and owned in whole or part, directly or indirectly, by foreign nationals may acquire or own, directly or indirectly, by any title, land or water (including mines, forest or energy sources) located within 50 kilometres of the Peruvian border. Exceptions may be authorised by Supreme Decree approved by the Council of Ministers in conformity with law in cases of expressly declared public necessity.
For each case of acquisition or possession within the referred area, the investor shall hand in the correspondent request to the relevant Ministry, in accordance with laws in force. For example, authorisations of this kind have been given in the mining sector.
I-PERU-2
Sector: Services Related to Fishing
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.3)
Level of Government: Central
Measures: Supreme Decree N° 012-2001-PE, “El Peruano” Official Gazette of March 14, 2001, Regulation of the Fisheries Law (Reglamento de la Ley General de Pesca), Articles 67, 68, 69 and 70
Description: Trade in Services
Before commencing operations, ship owners of foreign-flagged fishing vessels must present an unconditional, irrevocable letter of guarantee with automatic execution and joint liability, which will be valid for no more than 30 calendar days after the expiry of the fishing permit, issued for the benefit and to the satisfaction of the Ministry of Production by a financial, banking or insurance institution recognised by the Superintendency of Banking, Insurance and Private Administrators of Pension Funds (Superintendencia de Banca, Seguros y Administradoras Privadas de Fondos de Pensiones (AFP)). Such letter shall be issued in an amount equal to 25 per cent of the amount that must be paid for fishing rights.
A ship owner of a foreign-flagged fishing vessel that is not of large scale (in accordance with the regulation mentioned above) and that operates in Peruvian jurisdictional waters must have a Satellite Tracking System in its vessel, except for ship owners operating in highly migratory fisheries who are excepted from this obligation by a Ministerial Resolution.
Foreign-flagged fishing vessels with a fishing permit must have on board a scientific technical observer appointed by the Sea Institute of Peru (Instituto del Mar del Perú (IMARPE)). The ship owner must provide accommodation on board for that representative and a daily stipend, which must be deposited in a special account to be administered by IMARPE.
Ship owners of foreign-flagged fishing vessels that operate in Peruvian jurisdictional waters must hire a minimum of 30 per cent Peruvian crew, subject to its applicable domestic legislation.
I-PERU-3
Sector: Broadcasting Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.3 and Article 12.4) Local Presence (Article 8.6)
Level of Government: Central
Measures: Law Nº 28278, “El Peruano” Official Gazette of July 16, 2004, Radio and Television Law (Ley de Radio y Televisión), Article 24
Description: Establishment and Trade in Services
Only Peruvian nationals or juridical persons organised under Peruvian law and domiciled in Peru may be authorised or licensed to offer broadcasting services.
No foreign national may hold an authorisation or a licence directly or through a sole proprietorship.
I-PERU-4
Sector: Broadcasting Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.3) Performance Requirements (Article 12.5)
Level of Government: Central
Measures Law Nº 28278, “El Peruano” Official Gazette of July 16, 2004, Radio and Television Law (Ley de Radio y Televisión), Eighth Complementary and Final Provision
Description: Establishment and Trade in Services
At least 30 per cent, on average, of the total weekly programs by free-to-air broadcasters must be produced in Peru and broadcasted between the hours of 05:00 and 24:00.
I-PERU-5
Sector: Broadcasting Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.3 and Article 12.4) Most-Favoured-Nation Treatment (Article 8.4)
Level of Government: Central
Measures: Supreme Decree N° 005-2005-MTC, “El Peruano” Official Gazette of February 15, 2005, Regulation of the Radio and Television Law (Reglamento de la Ley de Radio y Televisión), Article 20
Description: Establishment and Trade in Services
If a foreign national is, directly or indirectly, a shareholder, partner, or associate in a juridical person, that juridical person may not hold a broadcasting authorisation in a zone bordering that foreign national’s country of origin, except in a case of public necessity authorised by the Council of Ministers.
This restriction does not apply to juridical persons with foreign equity which have two or more current authorisations, as long as they are of the same frequency band.
I-PERU-6
Sector: All
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.3) Most-Favoured-Nation Treatment (Article 8.4)
Level of Government: Central
Measures: Legislative Decree N° 689, “El Peruano” Official Gazette of November 5, 1991, Law for Foreign Workers Recruitment (Ley para la Contratación de Trabajadores Extranjeros), Articles 1, 3, 4, 5 (modified by Law N° 26196) and 6
Description: Trade in Services
All employers in Peru, independently of their activity or nationality, shall give preferential treatment to nationals when hiring employees.
Foreign natural persons who are service suppliers and who are employed by a service-supplying enterprise may supply services in Peru under a written and time-limited employment contract, which may not exceed three years. The contract may be subsequently extended for like periods of time. Service-supplying enterprises must show proof of the company’s commitment to train national personnel in the same occupation.
Foreign natural persons may not represent more than 20 per cent of the total number of employees of an enterprise, and their pay may not exceed 30 per cent of the total payroll for wages and salaries. These percentages will not apply in the following cases:
(a) when the foreign national supplying the service is the spouse, parent, child or sibling of a Peruvian national;
(b) when personnel work for a foreign enterprise supplying international land, air and water transport services under a foreign flag and registration;
(c) when foreign personnel work in a multinational bank or an enterprise that supplies multinational services, subject to the laws governing specific cases;