Title
Belarus-China Agreement on Service Trade and Investment
Preamble
PREAMBLE
The Government of the People's Republic of China and the Government of the Republic of Belarus (hereinafter referred to as "the Parties"),
Building on the all-weather comprehensive strategic partnership and long-standing friendship, strong economic and political ties between the People's Republic of China and the Republic of Belarus;
Guided by the Joint Statement on Establishing an All-Weather Comprehensive Strategic Partnership between the People's Republic of China and the Republic of Belarus issued on 15 September 2022 and the Joint Statement on Further Developing the All-weather Comprehensive Strategic Partnership between the People's Republic of China and the Republic of Belarus in the New Era issued on 1 March 2023 which includes provisions to encourage the conclusion of a trade in services and investment agreement between the parties;
Recognizing the importance of strengthening economic partnership and further optimizing bilateral trade in services and investment, and their contribution to the economic growth and sustainable development of the Parties, as well as achieving national policy objectives;
Desiring to stimulate business activities and to protect investors and investments of the Parties by establishing clear and mutually beneficial rules governing trade in services and investment between the Parties, and to reduce or eliminate barriers thereto;
Based on the principles and rules of the World Trade Organization on liberalizing and facilitating international trade and investment;
Have agreed, in pursuit of the above, to conclude the following Agreement on Trade in Services and Investment between the Government of the People's Republic of China and the Government of the Republic of Belarus (hereinafter referred to as "this Agreement"):
Body
Chapter I. INITIAL PROVISIONS AND GENERAL DEFINITIONS
Article 1. Establishment of a Free Trade Area
The Parties, consistent with Article V of the GATS, hereby establish a free trade area.
Article 1.2. Objectives
The objective of this Agreement is to establish a framework of principles and rules for trade in services, investments, as well as other issues as a means of promoting the sustainable economic growth and development of the People's Republic of China and the Republic of Belarus, with a view to
(a) encouraging expansion and diversification of trade between the People's Republic of China and the Republic of Belarus;
(b) liberalizing and promoting trade in services progressively;
(c) creating a transparent, liberal and facilitative investment regime;
(d) promoting fair competition in the People's Republic of China and the Republic of Belarusâ markets;
(e) ensuing adequate and effective protection and enforcement of intellectual property rights;
and to contributing in this way to the harmonious development and expansion of world trade.
Article 1.3. Relation to other Agreements
1. The Parties affirm their existing rights and obligations with respect to each other under other existing agreements to which both Parties are parties.
2. In the case of any inconsistency between the provisions of this Agreement and other agreements referred to in paragraph 1 of this Article, the Parties shall consult via the Joint Committee to arrive at a mutually satisfactory resolution in accordance with customary rules of interpretation of public international law, unless otherwise provided in this Agreement.
Article 1.4. Geographical Scope
For the People's Republic of China, this Agreement shall apply to the entire customs territory of the People's Republic of China, including land territory, territorial airspace, internal waters, territorial sea as well as their bed and subsoil, and any area beyond its territorial sea within which it may exercise sovereign rights and/or jurisdiction in accordance with international law and its domestic law.
For the Republic of Belarus, this Agreement shall apply to the territory under the sovereignty of the Republic of Belarus, in respect of which the Republic of Belarus exercises, in accordance with national legislation and international law, sovereign rights or jurisdiction;
Article 1.5. General Definitions
For the purposes of this Agreement, unless otherwise specified:
“days” means calendar days;
“direct taxes” comprises all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;
“GATS” means the WTO General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement;
“GATT 1994” means the General Agreement on Tariffs andTrade1994, contained in Annex 1A to the WTO Agreement;
“Joint Committee” means the Joint Committee establishedunderArticle 10.2 (Joint Committee);
“juridical person” means any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
“juridical person of the other Party” means a juridical personwhich is either:
(a) constituted or otherwise organized under the law of that other Party, and is engaged in substantive business operations in the territory of that Party; or
(b) in the case of the supply of a service through commercial presence, owned or controlled by:
(i) natural persons of that other Party; or
(ii) juridical persons of that other Party identifiedundersubparagraph (a);
“a juridical person” is:
(a) “owned” by persons of a Party if more than 50 per cent of the equity interest in it is beneficially owned by personsofthat Party;
(b) “controlled” by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(c) “affiliated” with another person when it controls, or is controlled by, that other person; or when it and the other person are both controlled by the same person;
“measure” includes any law, regulation, procedure, requirement or practice;
“natural person of the other Party” means a natural person who resides in the territory of that other Party, and who under the law of that other Party:
(a) is a national of that other Party; or
(b) has the right of permanent residence in that other Party;
“person” means either a natural person or a juridical person;
“WTO” means the World Trade Organization; and
“WTO Agreement” means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Chapter II. TRADE IN SERVICES
Article 2.1. Scope
1. This Chapter applies to measures adopted or maintained by Parties affecting trade in services.
2. This Chapter shall not apply to:
(a) air transport services, measures affecting traffic rights, however granted, or measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) Aircraft Repair and Maintenance Services;
(ii) Selling and Marketing of Air Transport Services;
(iii) Computer Reservation System Services.
(b) government procurement;
(c) cabotage in maritime transport services;
(d) services supplied in the exercise of governmental authority in the territory of a Party;
(e) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance or other forms of State support; or
(f) measures affecting natural persons of a Party seeking access to the employment market of the other Party, or measures regarding citizenship, residence or employment on a permanent basis.
3. With regard to delivery of services through movement of natural persons mode, this Chapter shall be read in conjunction with the Chapter IV (Temporary Movement of Natural Persons).
4. New services shall be considered for possible incorporation into this Chapter on a mutually agreed basis or at the request of either Party. The supply of services which is not technically or technologically feasible when this Agreement comes into force shall, when they become feasible, also be considered for possible incorporation on a mutually agreed basis or at the request of either Party (1).
5. For greater certainty, Annex 2-1 (Telecommunications), Annex 2- 2 (Transport and Logistics Services), Annex 2-3 (Financial Services), Annex 2-4 (Postal and Courier Services), Annex 2-5 (Health Services), Annex 2-6 (Tourism and Travel Services), Annex 2-7 (Computer and Related Services) are an integral part of this Chapter.
Article 2.2. Definitions
For the purposes of this Chapter:
"Aircraft Repair and Maintenance Services" means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called âline maintenanceâ;
"authorization" means the permission to supply a service, resulting from a procedure an applicant must adhere to in order to demonstrate compliance with licensing requirements, qualification requirements or technical standards;
"commercial presence" means any type of business or professional establishment, including through
(a) the constitution, acquisition or maintenance of a juridical person, or
(b) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
"Computer Reservation System Services" means services provided by computerised systems that contain information about air carriersâ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
"measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
"measures by Parties" means measures taken by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
"monopoly supplier of a service" means any person, public or private, which in the relevant market of the territory of a Party is authorized or established formally or in effect by that Party as the sole supplier of that service;
"natural person of a Party" means a natural person who,
(i) for the People's Republic of China, is a natural person who under the Chinese law is a national of the People's Republic of China; and
(ii) for the Republic of Belarus, is a natural person who under the Belarusian law is a national of the Republic of Belarus;
"qualification requirements" means substantive requirements which a service supplier is required to fulfill in order to obtain certification or a licence;
"sector of a service" means,
(a) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party's Schedule of Specific Commitments in Annex I, or
(b) otherwise, the whole of that service sector, including all of its subsectors;
"Selling and Marketing of Air Transport Services" means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
"services" includes any service in any sector except services supplied in the exercise of governmental authority;
"service consumer" means any person that receives or uses a service;
"service of the other Party" means a service which is supplied,
(a) from or in the territory of that other Party, or in the case of maritime transport, by a vessel registered under the laws of that other Party, or by a person of that other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(b) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;
"service supplier" means any person that supplies a service (2);
"a service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
"supply of a service" includes the production, distribution, marketing, sale and delivery of a service; and "trade in services" means the supply of a service:
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of one Party to the service consumer of the other Party;
(c) by a service supplier of one Party, through commercial presence in the territory of the other Party;
(d) by a service supplier of one Party, through presence of natural persons of a Party in the territory of the other Party.
Article 2.3. Most-Favoured-Nation Treatment
1. Without prejudice to measures taken in accordance with Article 2.7 (Recognition), and except as provided for in its List of Most-favoured-Nation Treatment Exemptions contained in its Schedule of Specific Commitments in Annex I, each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of the other Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-Party (3).
2. Treatment granted under other existing or future agreements concluded by a Party in accordance with Article V or Article V bis of the GATS shall not be subject to paragraph 1 of this Article.
3. If, after the entry into force of this Agreement, a Party concludes an agreement of the type referred to in paragraph 2 of this Article or any agreement on trade in services with a non-Party, the other Party may request consultations with the Party for the incorporation herein of treatment no less favorable than that provided under the aforesaid agreement. On such a request, the Parties shall promptly enter into consultations.
4. The provisions of this Chapter shall not be so construed as to prevent any Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.
Article 2.4. Transparency
1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Chapter. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.
2. Where publication as referred to in paragraph 1 of this Article is not practicable, such information shall be made otherwise publicly available.
3. If authorization for the supply of a service is required, each Party shall ensure that regulatory decisions, including the basis for such decisions, are promptly published or otherwise made available to all interested persons.
4. Each Party shall ensure that, where a licence is required, all measures relating to the licensing of suppliers of public networks or services are made publicly available, including:
(a) the circumstances in which a licence is required; (b) all applicable licencing procedures;
(c) the cost of, or fees for applying for, or obtaining, a licence; and
(d) the period of validity of a licence.
5. Each Party shall, in accordance with its laws and regulations, ensure that, on request, an applicant receives reasons for the denial of, revocation of, refusal to renew, or the imposition or modification of conditions on, a licence. Each Party shall endeavour to provide, to the extent possible, such information in writing.
6. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1 of this Article. Each Party shall also establish one or more enquiry points to provide specific information to the other Party, upon request, on all such matters. Such enquiry points shall be established within two years from the date of entry into force of this Agreement. Enquiry points need not be depositories of laws and regulations.
Article 2.5. Disclosure of Confidential Information
Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 2.6. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) of paragraph 2 of this Article shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. Where authorization is required for the supply of a service on which a specific commitment has been made, the competent authorities of a Party shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
4. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Parties shall develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements are, inter alia:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
5. (a) In sectors in which a Party has undertaken specific commitments, pending the entry into force of disciplines developed in these sectors pursuant to paragraph 4 of this Article, the Party shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments in a manner which:
(i) does not comply with the criteria outlined in subparagraphs (a), (b) or (c) of paragraph 4 of this Article; and
(ii) could not reasonably have been expected of that Party at the time the specific commitments in those sectors were made.
(b) In determining whether a Party is in conformity with the obligation under subparagraph (a) of paragraph 5 of this Article, account shall be taken of international standards of relevant international organizations (4) applied by that Party.
6. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of the other Party.
7. If a Party requires authorization for the supply of a service, it shall ensure that its competent authorities:
(a) to the extent practicable, provide an indicative timeframe for processing of an application;
(b) to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party's domestic laws and regulations;
(c) if they consider an application complete for processing under the Party's domestic laws and regulations (5), within a reasonable period of time after the submission of the application ensure that:
(i) the processing of the application is completed; and
(ii) the applicant is informed of the decision concerning the application®, to the extent possible in writingâ;
(d) if they consider an application incomplete for processing under the Partyâs domestic laws and regulations, within a reasonable period of time, to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant, identify the additional information required to complete the application, or otherwise provide guidance on why the application is considered incomplete; and
(iti) provide the applicant with the opportunity® to provide the additional information that is required to complete the application;
however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they so inform the applicant within a reasonable period of time; and
(e) if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant of the reasons for rejection and, if applicable, the procedures for resubmission of an application; an applicant should not be prevented from submitting another application? solely on the basis of a previously rejected application.