Title
Agreement on Trade in Services and Investments in the Member States of the Common Economic Space
Preamble
The Government of the Republic of Belarus, the Government of the Republic of Kazakhstan and the Government of the Russian Federation, hereinafter referred to as the Parties,
Taking into account the Agreement on the Formation of the Common Economic Space dated September 19, 2003,
guided by the Treaty on the Establishment of the Eurasian Economic Community of October 10, 2000 ,
implementing the provisions of the Treaty on the Customs Union and the Common Economic Space of February 26, 1999 ,
Desiring to create conditions for expanding mutual trade in services and increasing the level of its liberalization,
Desiring to create uniform principles and rules for mutual trade in services in the member states of the Common Economic Space in order to promote the economic growth of such states,
wishing to create favorable conditions for investment of funds by persons of the state of one Party in the territories of the states of other Parties,
Have agreed with the following:
Body
Article 1.
For the purposes of this Agreement, the following concepts mean:
a) "normative legal acts of the Party" - laws and other normative legal acts of the state of the Party;
b) "measure of the Party" - a normative legal act of a Party, as well as a decision, action or inaction of a body or official of the state of this Party, which are taken at any level of state power of the state of this Party, by its local self-government bodies or organizations in the exercise of their powers delegated them by such bodies.
In the event that an official document of a recommendatory nature is adopted (issued) by a body of the State of the Party, such a recommendation may be recognized as a measure for the purposes of this Agreement if it is proved that in practice the predominant part of the addressees of this recommendation (bodies of state, regional and (or) municipal authorities of the state of this Party, non-governmental bodies of this Party, persons of this Party, persons of other Parties, as well as persons of any third state) follow it;
c) "territory of the Party" - the territory of the state of the Party;
d) "person of the Party" - any natural or legal person of the Party;
e) "natural person of a Party" - any natural person who is a citizen of the state of this Party in accordance with its regulatory legal acts;
f) "legal entity of a Party" - a legal entity of any organizational and legal form, created or established in the territory of a Party in accordance with the regulatory legal acts of this Party;
g) "establishment":
i. creation, establishment and (or) acquisition of a legal entity (participation in the capital of a created or incorporated legal entity) of any organizational and legal form and form of ownership provided in accordance with the normative legal acts of the Party on whose territory such a legal entity is created or established; or
ii. acquisition of control over a legal entity of a Party, expressed in obtaining the ability, directly or through third parties, to determine decisions made by such a legal entity, including by disposing of votes attributable to voting shares (stakes), by participating in the board of directors (supervisory board) and other governing bodies of such a legal entity; or
iii. branch opening; or
iv. opening a representative office; or
v. registration as an individual entrepreneur.
h) "activity" - the activity of legal entities, branches, representative offices and (or) individual entrepreneurs specified in subparagraphs "i" - "v" of paragraph "g" of this article;
i) "trade in services" - the provision of services, including the production, distribution, marketing, sale, delivery of services and carried out in the following ways:
i. from the territory of one Party to the territory of the other Party; or
ii. on the territory of one Party by the person of this Party to the person of the other Party;
j) "service provider" - any person who supplies a service in the course of business and trade in services.
Chapter I. Establishment and Operation Institution and Activities
Article 2.
1. The provisions of this chapter apply to any measures of the Parties affecting the institution and (or) activities.
2. The provisions of this chapter shall not apply in the territory of a Party to activities that, in accordance with the regulatory legal acts of this Party, are associated with the performance of functions of state power.
3. This Agreement applies to incorporated, created, acquired or controlled by legal entities, branches, representative offices, registered individual entrepreneurs on the date of entry into force of this Agreement and continuing to exist, as well as established, created, acquired, controlled or registered after the entry of this Agreement into strength.
Article 3.
1. Each Party shall grant to the persons of any other Party, with respect to the institution and (or) activity, a treatment no less favorable than the treatment provided under similar circumstances to its Own persons on its territory, subject to the restrictions provided for by an individual national list for each of the Parties in Annex IV to this Agreement.
2. Each Party shall, under similar circumstances, provide persons of any other Party with respect to the establishment and (or) activities on its territory, a treatment no less favorable than the treatment provided to persons of states that are not parties to this Agreement.
3. Nothing in this Agreement shall prevent the Parties from concluding agreements on economic integration that meet the requirements of paragraph 4 of this article. Each Party that has entered into such an economic integration agreement with any state that is not a party to this Agreement grants, under similar conditions, to other Parties on a reciprocal basis the concessions that it grants under such an economic integration agreement. The concessions in this clause mean the cancellation by a Party of one or more restrictions provided for in its individual national list in Appendix IV to this Agreement.
4. For the purposes of this Agreement, agreements on economic integration between one of the Parties and a state (states) that are not (are) a party to this Agreement are agreements that meet the following criteria:
i. cover a significant number of service sectors, and also do not exclude a priori any of the modes of delivery of services and issues of institution and activity;
ii. aimed at eliminating existing discriminatory measures, as well as prohibiting the introduction of new ones;
iii. aimed at liberalizing trade in services.
The purpose of such an economic integration agreement is to facilitate trade in services and the conditions of establishment and activities between its participants, and for any third country, such an agreement should not lead to an increase in the overall level of barriers to trade in services in certain sectors or subsectors compared to the level that was applied. prior to the conclusion of such an agreement.
5. A party that has entered into an agreement on economic integration specified in paragraph 3 of this article with any state that is not a party to this Agreement is obliged to provide information on the conclusion of such an agreement to other Parties within one month from the date of its signing.
Article 4.
1. Except for the restrictions provided for by the individual national list for each of the Parties in Appendix IV to this Agreement, neither Party shall apply or impose restrictions on the persons of any other Party in connection with the establishment and (or) activities of restrictions in relation to:
a) the form of establishment, including the organizational and legal form of a legal entity; b) the number of created, established and (or) acquired legal entities, branches or representative offices, registered individual entrepreneurs;
c) the acquired volume of a share in the capital of a legal entity or the degree of control over a legal entity;
d) operations of an established, created, acquired or controlled legal entity, branch, representative office, registered individual entrepreneur in the course of their activities in the form of a quota, a test for economic feasibility or in any other quantitative form.
2.Taking into account the provisions of the Agreement on the Legal Status of Migrant Workers and Members of Their Families of November 19, 2010, each Party shall not apply or impose restrictions on the persons of any other Party related to the employment of workers in relation to the activities of an established, created, acquired or controlled legal entity, branch, representative office, registered individual entrepreneur, with the exception of the restrictions provided for by an individual national list for each of the Parties in Appendix IV to this Agreement. The provisions of this clause do not apply to the requirements for education, experience, qualifications, reputation of employees, if the application of such rules does not lead to actual discrimination of employees depending on citizenship.
Article 5..
1. Except for the restrictions provided for by the individual national list for each of the Parties in Appendix IV to this Agreement, neither Party shall introduce or apply to persons of other Parties as a condition in connection with the establishment and (or) activities of the following additional requirements :
a) export all or part of the goods or services produced;
b) import goods or services;
c) purchase or use goods or services, the state of origin of which is the state of the Party;
d) requirements that restrict the sale of goods or the supply of services in the territory of this Party, the import or export of goods to / from the territory of this Party and are linked to the volumes of goods produced (services supplied), the use of local goods or services, or restrict the enterprise's access to foreign currency, due in connection with the operations specified in this paragraph;
e) transfer technologies, know-how and other information of commercial value, except for the cases of their transfer on the basis of a decision of a court or a body authorized in the field of competition protection, subject to the rules for the implementation of competition policy established by other agreements between the Parties.
2. Fulfillment of the requirements specified in subparagraphs "a" - "e" of paragraph | of this article may also not be the basis for obtaining any preference by a person of either Party in connection with an institution or activity in the territory of another Party.
3. The provisions of this article shall apply without prejudice to other agreements of the Parties within the framework of the agreements of the Customs Union and the Common Economic Space.
Article 6..
1. In accordance with the obligations arising from the Agreement on uniform principles and rules for regulating the activities of natural monopoly entities dated 09.12.2010 and despite the provisions of paragraph 1 of Article 4 of this Agreement, each of the Parties may retain on its territory legal entities that are subjects of natural monopolies.
2. A Party that retains on its territory the legal entities specified in paragraph 1 of this article shall ensure that such legal entities act in a manner consistent with the obligations of this Party under the Agreement on common ptinciples and rules for regulating the activities of natural monopoly entities dated 09.12.2010.
3. If a legal entity of one Party specified in paragraph 1 of this article competes directly or through a legal entity controlled by it outside the sphere of its monopoly rights with persons of other Parties, then the first Party shall ensure that such legal entity does not abuse its monopoly position by acting in the territory of the first Party in a manner incompatible with the obligations of that first Party under this Agreement.
Chapter II. Cross-border Trade In Services Cross-border Trade In Services
Article 7.
1. The provisions of this chapter apply to measures by Parties affecting trade in services, understood as measures in relation to:
i. buying, paying for or using the service;
ii. access to services and use of services in connection with the provision of services, in respect of which such Parties establish the requirement to conclude a public contract.
2. The provisions of this chapter do not apply to:
a) the rights of carriage by air and services directly related to the rights of carriage, except: i. repair and maintenance of aircraft;
ii. sales and marketing of air transport services;
iii. services of a computer backup system;
b) purchases of services by government agencies for government purposes and not for the purpose of commercial resale or for use in the supply of services for commercial sale;
c) services rendered in the performance of the functions of state power;
d) the provision of subsidies.
Article 8.
The specifics of trade in communications services and financial services are governed by Appendices I and V to this Agreement.
Article 9..
1. Each Party shall provide the services and service providers of any other Party with respect to trade in services not less favorable than that accorded under similar circumstances to its own similar services and service providers in the sectors and subject to the restrictions and conditions provided for by the individual national list for each of the Parties in Appendix III to this Agreement.
2. Each Party shall, under similar circumstances, provide services and service providers of any other Party with respect to trade in services with treatment no less favorable than the treatment provided to similar services and service providers of states that are not parties to this Agreement, except for the cases provided for by an individual national list for to each of the Parties in Annex II to this Agreement.
3. Nothing in this Agreement shall prevent the Parties from concluding agreements on economic integration that meet the requirements of paragraph 4 of this article. Each Party that has entered into an economic integration agreement referred to in paragraph 4 of this article with any state that is not a party to this Agreement grants, under similar conditions, to other Parties on a reciprocal basis the concessions that it grants under such an economic integration agreement. The concessions in this clause mean the cancellation by the Party referred to in this clause of one or more restrictions provided for by its individual national lists in Appendices II-III to this Agreement, as well as the acceptance of obligations similar to those provided for in clause | of this article in the sectors ,
4. For the purposes of this Agreement, agreements on economic integration between one of the Parties and a state / states that are not / are not parties to this Agreement are agreements that meet the following criteria:
i. cover a significant number of service sectors, and do not a priori exclude any of the modes of delivery of services and issues of institution and activity;
ii. aimed at eliminating existing discriminatory measures, as well as prohibiting the introduction of new ones; and
iii. aimed at liberalizing trade in services.
The purpose of such an agreement is to facilitate trade in services and the conditions of establishment and activities between its participants; it should not lead, with respect to any third country, to an increase in the overall level of barriers to trade in services in certain sectors or subsectors as compared to the level that was applied prior to the conclusion of such an agreement.
5. A party that has entered into an agreement on economic integration specified in paragraph 3 of this article with any state that is not a party to this Agreement is obliged to provide information on the conclusion of such an agreement to other Parties within one month from the date of its signing.
Article 10..
In the sectors listed in Annex III to this Agreement, with the exception of the restrictions provided for in the annexes specified in article 9 of this Agreement, neither Party shall apply or impose restrictions on the services and service providers of the other Party in connection with trade in services. respect:
i. the number of service providers in the form of a quota, monopoly, feasibility test or any other quantitative form;
ii. transactions of any service provider in the form of a quota, a feasibility test or in any other quantitative form. Article 10bis
In the sectors listed in Annex III to this Agreement, except as provided in the annexes specified in article 9 of this Agreement, neither Party shall introduce or apply the institution's requirements to the service provider of the other Party (as defined in clause " g "Article 1 of this Agreement) as a condition for trade in services.
Article 11..
The parties shall conduct negotiations at least once every 3 years in order to achieve a greater level of liberalization, aimed at gradually reducing the number of restrictions specified in article 9 of this Agreement and the restrictions specified in article 10 of this Agreement.
Chapter IV. Entry, Exit, Stay and Employment of Individuals
Article 12..
Entry, departure, stay and work of individuals are established by national legislation and international treaties to which the states of the Parties are parties.
Chapter V. Transparency
Article 13..
1. Each Party shall ensure that any regulatory legal acts of this Party that affect or may affect the issues covered by this Agreement are published in an official source, and, if possible, on a dedicated Internet site in such a way that any person, rights and (or) whose obligations may be affected by such regulatory legal acts of the Party, had the opportunity to familiarize themselves with them.
2. The publication of the normative legal acts referred to in paragraph 1 of this article must include an explanation of the purposes of applying such normative legal acts.
3. Any normative legal acts referred to in paragraph 1 of this article must be published within a time frame that ensures legal certainty and reasonable expectations of persons whose rights and (or) obligations may be affected by these normative legal acts of the Party, but in any case before the date their entry into force.
4. Each Party shall establish a mechanism to ensure that responses are provided to written inquiries from any person regarding existing and / or planned regulations on matters covered by this Agreement. Replies to inquiries must be provided to such interested person no later than 30 days from the date of receipt of the written inquiry.
Chapter VI. Internal Regulation
Article 14..
With respect to measures by Parties affecting trade in services, the Parties shall apply the following provisions.
1. With respect to the sectors included in the annexes referred to in Article 9 of this Agreement, each Party shall ensure that all measures of that Party affecting trade in services are applied in a reasonable, objective and impartial manner.
2.a) Each Party has, or is establishing, as soon as practicable, judicial, arbitration or administrative bodies or procedures that, at the request of the affected service provider, ensure prompt consideration and reasoned action to correct the relevant administrative decisions affecting for trade in services. In cases where these procedures are not independent of the body empowered to make such administrative decisions, the Party shall ensure that the procedures do serve an objective and impartial review.
b) The provisions of subparagraph (a) of this paragraph do not require a Party to establish such bodies or procedures when this is incompatible with its constitutional order or the nature of its judicial system.
3. When permission is required for the supply of services that are included in the annexes specified in article 9 of this Agreement, the competent authorities of the Parties, within a reasonable period of time after the submission of the application, which is considered executed in accordance with the requirements of national legislation and regulatory rules, inform the applicant of the decision regarding statements. At the request of the applicant, the competent authorities of the Parties shall provide information on the progress of the consideration of the application without undue delay.
4. To ensure that measures related to qualifications and procedures, technical standards and licensing requirements do not create unreasonable barriers to trade in services, the Parties are free to develop any necessary rules through the appropriate authorities that they may create. These rules are intended to ensure that such requirements, inter alia:
a) are based on objective and transparent criteria such as competence and ability to deliver the service;
b) are not more burdensome than is necessary to ensure the quality of the service;
c) in the case of licensing procedures - were not in themselves a restriction on the supply of the service.
5. a) In the service sectors included in the annexes specified in article 9 of this Agreement, prior to the entry into force of the rules developed for these sectors in accordance with paragraph 4 of this article, the Parties shall not apply licensing or qualification requirements and technical standards that cancel or reducing benefits that are provided under the terms included in the annexes specified in article 9 of this Agreement, in a way that:
i) does not meet the criteria specified in subparagraphs "a", "b" or "c" of paragraph 4 of this article;
ii) could not reasonably be expected of that Party at the date of signing this Agreement.
b) When determining whether a Party has fulfilled the obligation specified in subparagraph "a" of paragraph 5 of this article, attention is drawn to the international standards of the relevant international organizations applied by it.
6. In the event that obligations in terms of professional services are included in the annexes referred to in Article 9 of this Agreement, each Party shall provide appropriate procedures for testing the competence of professionals of any other Party.
Article 15.
If a Party applies licensing to an institution and (or) activity, then such Party shall ensure that:
i. the names of the competent authorities responsible for issuing licenses to operate have been published or otherwise made public;
ii. licensing procedures are not in themselves a restriction on an institution or an activity, and that licensing requirements directly related to the right to operate should not in themselves constitute an unreasonable barrier to activity;
iii. all licensing procedures and requirements have been established in regulatory legal acts and that any regulatory legal act establishing or applying licensing procedures or requirements is published prior to the date of its entry into force in accordance with the provisions of Article 14 of this Agreement;
iv. the licensing authorities took a decision to issue (refuse) to issue a license within the period of time specified in the relevant regulatory legal act, but in any case no later than 30 days from the date of receipt of the application for the issuance of a license. With regard to the financial services sector, the time frame for making a decision to issue (refuse) to issue a license is set out in Appendix V to this Agreement;
v. any fees charged in connection with the submission and consideration of an application for the issuance of a license were not in themselves a restriction on the establishment and activities and were based on the costs of the licensing authority associated with the consideration of the application and the issuance of a license (permit);
vi. after the expiration of the period of time specified in paragraph "iv" of this article, and at the request of the applicant, the relevant licensing authority of the Party informed the applicant about the status of consideration of his application, and whether this application is considered to be duly completed. In any event, the applicant will be given the opportunity to make technical corrections to the application. The application will not be deemed to be properly completed until all information and documents specified in the relevant laws and other regulatory legal acts of the Party are received;
vii. at the written request of the applicant who was denied the application, the licensing authority that refused to accept the application informed the applicant in writing of the reasons for such a refusal. However, this provision should not be construed as requiring the licensing authority to disclose information the disclosure of which interferes with the enforcement of the law or is otherwise contrary to the public interest or essential security interests;
viii. in the event that the application was denied, the applicant could submit a new application, in which he could try to eliminate any existing problems for issuing a license (permit);
ix. the issued license was valid throughout the territory of the Party. Exceptions to the provisions of this clause may be specified in Appendix I to this Agreement.
Article 16.
1. The Parties strive to unify their national legislation, taking into account international principles and standards and best international practices in the field of regulation of trade in services, as well as institutions and activities, with a view to completing the formation of a single market for services and capital.
2.To this end, the Parties shall negotiate at least twice a year to agree on:
priority areas of regulation and (or) sectors of the economy from the point of view of the need to unify legislation;
plan and timetable for unification.
3. The negotiations referred to in paragraph 2 of this article must be completed no later than 5 years from the date of entry into force of this Agreement.
4. The sector of financial and communication services cannot be a priori excluded from the scope of negotiations specified in paragraph 2 of this article.
5. The mechanism for unification of the rules for carrying out activities in the financial services sector by persons of the Parties on the territory of any other Party is established by Appendix V to this Agreement.
Chapter VII. State Participation
Article 17..
Each Party shall provide, on its territory, with respect to participation in privatization to the persons of the other Party, a treatment no less "favorable" than the treatment accorded to its own persons.
Article 17bis.
1. In the event that persons in the capital of which the state of this Party participates or that are controlled by the state of this Party remain in the territory of a Party, such Party shall ensure that the said persons:
a) carried out their activities on the basis of commercial considerations and acted in relations governed by this Agreement:
i. on the basis of the principle of equality with other participants in these relations;
ii. on the basis of the principle of non-discrimination of other participants in these relations, depending on their citizenship, place of registration (institution), organizational and legal form or form of ownership, as well as
b) did not receive rights, privileges or obligations solely due to the participation of the state of this Party in their capital or control over them by the state of this Party,