To act as a customs broker in Australia, service suppliers must supply the service in and from Australia.
Sector: Fishing and Services Incidental to Fishing
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)
Level of Government: Central
Measures: Fisheries Management Act 1991 (Cth)Foreign Fishing Licences Levy Act 1991 (Cth)
Description: Investment and Cross-Border Trade in Services
Foreign fishing vessels (11) seeking to undertake fishing activity, including any activity in support of or in preparation for any fishing activity or the processing, carrying or transhipment of fish, in the Australian Fishing Zone must be authorised.
Where foreign fishing vessels are authorised they may be subject to a levy.(12)
Sector: Communication Services
Obligations Concerned: National Treatment (Article 8.4) Senior Management and Boards of Directors (Article 8.11)
Level of Government: Central
Measures: Telstra Corporation Act 1991 (Cth)
Description: Investment
Aggregate foreign equity is restricted to no more than 35 per cent of shares of Telstra. Individual or associated group foreign investment is restricted to no more than five per cent of shares.
The Chairperson and a majority of directors of Telstra must be Australian citizens and Telstra is required to maintain its head office, main base of operations and place of incorporation in Australia.
Sector: Health Services
Obligations Concerned: National Treatment (Article 8.4) Senior Management and Boards of Directors (Article 8.11)
Level of Government: Central
Measures: Commonwealth Serum Laboratories Act 1961 (Cth)
Description: Investment
The votes attached to significant foreign shareholdings (13) may not be counted in respect of the appointment, replacement or removal of more than one-third of the directors of Commonwealth Serum Laboratories (CSL) who hold office at a particular time. The head office, principal facilities used by CSL and any CSL subsidiaries used to produce products derived from human plasma collected from blood or plasma donated by individuals in Australia must remain in Australia. Two-thirds of the directors of the board of CSL and the chairperson of any meeting must be Australian citizens. CSL must not seek incorporation outside of Australia.
Sector: Transport Services
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)Local Presence (Article 9.6)
Level of Government: Central
Measures: Competition and Consumer Act 2010 (Cth)
Description: Investment and Cross-Border Trade in Services
Every ocean carrier who provides international liner cargo shipping services to or from Australia must, at all times, be represented by a natural person who is resident in Australia.
Only a person (14) affected by a registered conference agreement or by a registered non-conference ocean carrier with substantial market power may apply to the Australian Competition and Consumer Commission to examine whether conference members, and non-conference operators with substantial market power, are hindering other shipping operators from engaging efficiently in the provision of outward liner cargo services to an extent that is reasonable. For greater certainty, matters which are relevant to the determination of "reasonable" include Australia's national interest and the interests of Australian shippers.
Sector: Maritime Transport
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)Local Presence (Article 9.6)
Level of Government: Central
Measures: Shipping Registration Act 1981 (Cth)Shipping Registration Regulations 1981 (Cth)
Description: Investment and Cross-Border Trade in Services
For a ship to be registered on the Australian Shipping Register it must be majority Australian-owned or on demise charter to Australian-based operators. In the case of small craft, a ship must be wholly owned by or solely operated by Australian residents, Australian nationals or both.
For a trading ship to be registered on the International Shipping Register it must be wholly or majority Australian-owned, on demise charter to Australian-based operators or operated solely by Australian residents, Australian nationals or both. The master or chief mate, and chief engineer or first engineer of the ship must be an Australian national or Australian resident.
A ship on demise charter to an Australian-based operator is a ship on demise charter to:
- an Australian national or Australian nationals; or
- in circumstances where there are two or more persons who include an Australian national, where the Australian national is in a position to control the exercise of the rights and powers of the charterers under the charter party.
For the purposes of this entry, an Australian national is an Australian citizen who is ordinarily resident in Australia; or a body corporate that has its principal place of business in Australia.
Sector: Transport Services
Obligations Concerned:
National Treatment (Article 8.4)Senior Management and Boards of Directors (Article 8.11)
Level of Government: Central
Measures: Air Navigation Act 1920 (Cth)Ministerial Statements
Description: Investment
Total foreign ownership of individual Australian international airlines (other than Qantas) is restricted to a maximum of 49 per cent.
Furthermore, it is required that:
- at least two-thirds of the Board members must be Australian citizens;
- the Chairperson of the Board must be an Australian citizen;
- the airline's head office must be in Australia; and
- the airline's operational base must be in Australia.
Sector: Transport Services
Obligations Concerned: National Treatment (Article 8.4) Senior Management and Boards of Directors (Article 8.11)
Level of Government: Central
Measures: Qantas Sale Act 1992 (Cth)
Description: Investment
Total foreign ownership of Qantas Airways Ltd is restricted to a maximum of 49 per cent. In addition:
- the head office of Qantas must always be located in Australia;
- the majority of Qantas' operational facilities must be located in Australia;
- at all times, at least two-thirds of the directors of Qantas must be Australian citizens;
- at a meeting of the Board of Directors of Qantas, the director presiding at the meeting (however described) must be an Australian citizen; and
- Qantas is prohibited from taking any action to become incorporated outside Australia.
(1) For greater certainty, the terms in this entry should be interpreted in accordance with Australia's Foreign Investment Framework as at the date of entry into force of this Agreement.
(2) "Investment" means activities covered by Part II of the Foreign Acquisitions and Takeovers Act 1975 (Cth) or, where applicable, ministerial statements on foreign investment policy. Funding arrangements that include debt instruments having quasi-equity characteristics will be treated as direct foreign investment.
(3) The Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth)and the Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 (Cth)sets the fees for foreign investment applications and notices. Fees are indexed annually on 1 July.
(4) For the purposes of this entry, the term "foreign person" has the meaning set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth)and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
(5) The term "sensitive business" has the meaning set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth)and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
(6) The term "foreign government investor" has the meaning set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth)and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
(7) The term "developed commercial land" means commercial land that is not vacant within the meaning of the Foreign Acquisitions and Takeovers Act 1975 (Cth)and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
(8) The conditions for the lower threshold are those set out in Foreign Acquisitions and Takeovers Act 1975 (Cth)and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
(9) "Unacceptable shareholding situation" and "practical control" as defined in the Financial Sector (Shareholdings) Act 1998 (Cth).
(10) Ministerial statements on foreign investment policy including the Treasurer's Press Release No. 28 of 9 April 1997.
* This is the figure as at 1 January 2018. To be indexed annually on 1 January.
(11) For the purposes of this entry, a "foreign fishing vessel" is one that does not meet the definition of an Australian boat under the Fisheries Management Act 1991 (Cth), that is, an Australian-flagged boat (not owned by a foreign resident) or a boat owned by an Australian resident or corporation and built, and whose operations are based, in Australia.
(12) The levy charged will be in accordance with the Foreign Fishing Licences Levy Act 1991 (Cth) or any amendments thereto.
(13) For the purposes of this entry, "significant foreign shareholding" means a holding of voting shares in CSL in which a foreign person has a relevant interest, if the foreign person has relevant interests in at least five per cent of the voting shares in CSL.
(14) For the purposes of this entry, sections 10.48 and 10.58 of Part X of the Competition and Consumer Act 2010 (Cth) list the categories of persons to whom this entry will apply.
ANNEX I. Schedule of peru
INTRODUCTORY NOTES
1. Description provides a general non-binding description of the measure for which the entry is made.
2. In accordance with Article 8.12.1 (Non-Conforming Measures) and Article 9.7.1 (Non-Conforming Measures), 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.
Sector: All
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.4)
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: Investment
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 corresponding request to the relevant Ministry, pursuant to laws in force. For example, authorisations of this kind have been given in the mining sector.
Sector: Services Related to Fishing
Sub-Sector:
Obligations Concerned: National Treatment (Article 9.3)
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: Cross-Border 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 (according to 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 applicable domestic legislation.
Sector: Radio and Television Broadcasting Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.4) Local Presence (Article 9.6)
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: Investment and Cross-Border Trade in Services
Only Peruvian nationals or juridical persons organised under Peruvian law and domiciled in Peru may be authorised or licensed to offer radio or television broadcast services.
No foreign national may hold an authorisation or a licence directly or through a sole proprietorship.
Sector: Audio-Visual Services
Sub-Sector:
Obligations Concerned: Performance Requirements (Article 8.10)National Treatment (Article 9.3)
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: Investment and Cross-Border Trade in Services
At least 30 per cent, on average, of the total weekly programs by free-to-air television broadcasters must be produced in Peru and broadcasted between the hours of 05:00 and 24:00.
Sector: Radio Broadcasting Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)Most-Favoured-Nation Treatment (Article 8.5 and Article 9.4)
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: Investment and Cross-Border 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.
Sector: All
Sub-Sector:
Obligations Concerned: Senior Management and Boards of Directors (Article 8.11) National Treatment (Article 9.3)Most-Favoured-Nation Treatment (Article 9.4)
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: Investment and Cross-Border 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:
- when the foreign national supplying the service is the spouse, parent, child or sibling of a Peruvian national;
- when personnel work for a foreign enterprise supplying international land, air and water transport services under a foreign flag and registration;
- when foreign personnel work in a multinational bank or an enterprise that supplies multinational services, subject to the laws governing specific cases;
- for a foreign investor, provided that its investment permanently maintains in Peru at least five tax units (Unidad Impositiva Tributaria - UIT)1 during the life of its contract;
- for artists, athletes or other service suppliers engaged in public performances in Peruvian territory, for a maximum of three months a year;
- when a foreign national has an immigrant visa;
- for a foreign national whose country of origin has a labour reciprocity or dual nationality agreement with Peru; and
- when foreign personnel supply services in Peru under a bilateral or multilateral agreement concluded by the Peruvian Government.
Employers may request waivers for the percentages related to the number of foreign employees and their share of the company's payroll in cases involving:
- specialised professional or technical personnel;
- directors or management personnel for a new business activity or reconverted business activity;
- teachers hired for post-secondary education, or for foreign private elementary and high schools, or for language teaching in local private schools, or for specialised language centres;
- personnel working for public or private enterprises with contractual agreements with public organisations, institutions or enterprises; and
- in any other case determined by Supreme Decree pursuant to specialisation, qualification or experience criteria.
Sector: Professional Services
Sub-Sector: Legal services
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)
Level of Government: Central
Measures: Legislative Decree N° 1049, "El Peruano" Official Gazette of June 26, 2008, Notaries Law (Ley del Notariado), Article 10
Description: Investment and Cross-Border Trade in Services
Only a Peruvian national by birth may supply notary services.
Sector: Professional Services
Sub-Sector: Architectural services
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)
Level of Government: Central
Measures: Law Nº 14085, "El Peruano" Official Gazette of June 30, 1962, Law establishing the Peruvian Association of Architects(Ley de Creación del Colegio de Arquitectos del Perú)Law Nº 16053, "El Peruano" Official Gazette of February 14, 1966, Professional Practice Law, authorising the Peruvian Associations of Architects and Engineers to supervise Engineering and Architecture professionals of the Nation(Ley del Ejercicio Profesional, Autoriza a los Colegios de Arquitectos e Ingenieros del Perú para supervisar a los profesionales de Ingeniería y Arquitectura de la República), Article 1National Architects Council Agreement (Acuerdo del Consejo Nacional de Arquitectos), approved in Session Nº 04-2009 of 15 December 2009
Description: Investment and Cross-Border Trade in Services
To practice as an architect in Peru, an individual must join the Peruvian Association of Architects (Colegio de Arquitectos del Perú). The enrolment fees are different for Peruvians and foreigners, and subject to review by the Peruvian Association of Architects (Colegio de Arquitectos del Perú).
Also, to obtain temporary registration, non-resident foreign architects must have a contract of association with a Peruvian architect residing in Peru.
Sector: Professional Services
Sub-Sector: Auditing services
Obligations Concerned: National Treatment (Article 8.4 and Article 9.3)Local Presence (Article 9.6)
Level of Government: Central
Measures: Rules of the Association of Public Accountants of Lima (Reglamento Interno del Colegio de Contadores Públicos de Lima), Articles 145 and 146
Description: Investment and Cross-Border Trade in Services
Auditing societies shall be constituted only by public accountants licensed and resident in the country and duly qualified by the Association of Public Accountants of Lima (Colegio de Contadores Públicos de Lima).
Sector: Security Services
Sub-Sector: