(ii) If the entry does not exactly conform to the ISIC, Lao PDR specified the coverage of the entry, as necessary and appropriate;
(d) Level of Government indicates the level of government maintaining the listed measures;
(e) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 10.8 (Reservations and Non-Conforming Measures), do not apply to the listed measures;
(f) Description sets out the non-conforming measure for which the entry is made; and
(g) Source of Measure means the laws, regulations, or other measures that are the source of the non-conforming measure for which the entry is made. A measure cited in the Source of Measure 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.
3. This List and List B pursuant to Article 10.8 (Reservations and Non-Conforming Measures) follow the negative list with two list approach as follows:
(a) this List sets out commitments in relation to existing non-conforming measures which are subject to standstill obligations but not subject to ratchet mechanism; and
(b) List B sets out policy flexibility in relation to measures in sectors, subsectors and activities.
4. Lao PDR may maintain any non-conforming measures other than those set out in this List provided that the non-conforming measures are in effect on the date of entry into force of this Agreement, and that Lao PDR notifies other Parties of the non-conforming measures within a period of 24 months of the date of entry into force of this Agreement.
5. In the interpretation of an entry, all elements of an entry shall be considered. The Description element shall prevail over all the other elements.
6. These Explanatory Notes shall form part of the Lao PDR’s Schedule of Reservations and Non-Conforming Measures for Investment.
1.
Sector : Business Sectors Relating to Hazardous Chemicals Type I Subsector : Hazardous Chemicals Type I Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : The Government of Lao PDR prohibits business activities using Hazardous Chemicals Type I, except for the activities relating to research, technology development, protection and prevention of danger which may arise against health, life, property, or environment and the use of national defence and public security activities, provided that such activities are approved by the Government of Lao PDR. Source of Measure : Law on the Chemicals Management (No. 07/NA, dated 10 November 2016), Article 10
2.
Sector : Central Bank Currency Issuance Subsector : Paper money, money printing inks, money printing machinery, and coin smelting equipment Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : According to the Law on Bank of Lao PDR, Article 24 states that the Bank of Lao PDR has the sole right to issue notes and coins (including paper money, money printing inks, money printing machinery, and coin smelting equipment, etc.) with the approval of the Government of Lao PDR. Source of Measure : Law on Bank of Lao PDR (No. 05/NA, dated 14 October 1999), Article 24
3.
Sector : Manufacturing Sectors Subsector : Weaving of textile Needlework Industry Classification : ISIC 1312, 1321 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Investments in weaving of textile with unique ethnic designs by hand, not including industrial textiles and clothes manufacturing, are reserved for citizens of Lao PDR. Investments in needlework with unique ethnic design by hand, not including industrial textiles and clothes manufacturing, are reserved for citizens of Lao PDR. Source of Measure : Notification on the List of Types of Businesses Reserved for Citizens of Lao PDR (No. 1328/MOIC.DERM, dated 13 July 2015)
4.
Sector : Manufacturing Sectors Subsector : Manufacturing of other products of wood Manufacture of articles of cork, straws, and plaiting materials Industry Classification : ISIC 1629 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Investments in small wood processing factories and businesses of manufacturing carved wood and wicker with unique ethnic sculpture are reserved for citizens of Lao PDR. Source of Measure : Notification on the List of Types of Businesses Reserved for Citizens of Lao PDR (No. 1328/MOIC.DERM, dated 13 July 2015)
5.
Sector : Manufacturing Sectors Subsector : Manufacturing of porcelain and ceramic products Industry Classification : ISIC 2393 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Investments in businesses relating to local handicraft porcelain and ceramic products with unique ethnic design are reserved for citizens of Lao PDR. Source of Measure : Notification on the List of Types of Businesses Reserved for Citizens of Lao PDR (No. 1328/MOIC.DERM, dated 13 July 2015)
6.
Sector : Manufacturing Sectors Subsector : Manufacturing of jewellery and related articles Manufacture of imitation jewellery and related articles Industry Classification : ISIC 3211, 3212 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Investments in businesses of production of local handicraft jewellery products and related articles with unique ethnic designs are reserved for citizens of Lao PDR. Source of Measure : Notification on the List of Types of Businesses Reserved for Citizens of Lao PDR (No. 1328/MOIC.DERM, dated 13 July 2015)
7.
Sector : Forestry Sectors Subsector : Exploitation of timber and non-timber forest products of national forest (NTFPs) Forestry, logging and related activities Industry Classification : ISIC 0200, 0220 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Prohibition on Performance Requirements (Article 10.6) Description : Investments in exploitation of timber and non-timber forest products of national forests are reserved for domestic investors. Forestry, logging and related activities are subject to specific approval by the Government of Lao PDR. Source of Measure : Forestry Law (No. 06/NA, dated 24 December 2007), Article 49; Prime Minister’s Order Regarding the Increase of Strictness in Forest Management and Logging Business in 2007-2008 (No. 30/PM, dated 17 August 2007)
8.
Sector : Mining Sectors Subsector : Mining of Uranium and Thorium Ores (Radioactive Mineral) Industry Classification : ISIC 0721 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : The Government of Lao PDR defines reserved areas and protects some mineral resource areas in accordance with the national social-economic development plan for exploration, planning development and mining operations, in support of the national interest and the sustainability of natural resources. Source of Measure : Law on Minerals (No.02/NA, dated 20 December 2011), Article 10
9.
Sector : Fishery Sectors Subsector : Commercial ornamental fisheries Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Any foreign individual or organisation with the aim of engaging in commercial ornamental fisheries such as aquaculture, breeding, propagation, and import shall seek approval of the relevant authorities in accordance with the Law on Investment Promotion. Source of Measure : Law on Fishery (No. 03/NA, dated 9 July 2009), Article 31 Law on Investment Promotion (No. 14/NA, dated 17 November 2016)
10.
Sector : Agriculture Sectors Subsector : Guano (Bat Dung) Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Prohibition of Performance Requirements (Article 10.6) Description : Investments in Guano (Bat Dung) businesses are reserved for domestic investors. Source of Measure : Order of the Minister of Agriculture and Forestry (No. 2050/MAF99, dated 20 December 1999), regarding prohibition of Guano excavation for export Order of the Minister of Agriculture and Forestry (No. 613/MAF99, dated 8 July 2005), regarding utilisation and management of Guano in Lao
List B. Explanatory Notes
1. This List sets out, pursuant to Article 10.8 (Reservations and Non-Conforming Measures), the specific sectors, subsectors or activities for which Lao PDR may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 10.3 (National Treatment);
(b) Article 10.6 (Prohibition of Performance Requirements); or
(c) Article 10.7 (Senior Management and Board of Directors).
2. Each entry in this List sets out the following elements:
(a) Sector refers to the sector or sectors for which the entry is made;
(b) Subsector refers to the specific sector for which the entry is made;
(c) Industry Classification refers to the activities covered by the entry according to:
(i) International Standard Industrial Classification (ISIC) Revision 3 for manufacturing, agriculture, fishery, forestry, mining and quarrying;
(ii) If the entry does not exactly conform to the ISIC, Lao PDR specified the coverage of the entry, as necessary and appropriate;
(d) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to 10.8 (Reservations and Non-Conforming Measures), do not apply to the sectors, subsectors or activities listed in the entry;
(e) Description sets out the sector, subsector or activities covered by the entry; and
(f) Existing Measures identifies, for transparency purposes, a non-exhaustive list of existing measures that apply to the sectors, subsectors or activities covered by the entry.
3. List A and this List pursuant to Article 10.8 (Reservations and Non-Conforming Measures) follow the negative list with two list approach as follows:
(a) List A sets out commitments in relation to existing non-conforming measures which are subject to standstill obligations but not subject to ratchet mechanism; and
(b) this List sets out policy flexibility in relation to measures in sectors, subsectors and activities.
4. In accordance with Article 10.8 (Reservations and Non-Conforming Measures), the Articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the sectors, subsectors and activities identified in the Description element of that entry.
5. In the interpretation of an entry, all elements of an entry shall be considered. The Description element shall prevail over all other elements. 6. These Explanatory Notes shall form part of the Lao PDR’s Schedule of Reservations and Non-Conforming Measures for Investment.
1.
Sector : All Sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : Na National Treatment (Article 10.3)tional Treatment (Article 10.3) Description : In the case of joint ventures between domestic and foreign investors, the foreign investor is required to contribute at least 10 per cent of the total capital. (1) Existing Measures : Law on Investment Promotion (No. 14/NA, dated 17 November 2016), Articles 26 through 31
2.
Sector : Concession Investment Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : The registered capital of concession businesses shall not be less than 30 per cent of the total capital. For general businesses, the registered capital shall comply with the Law on Enterprise. Existing Measures : Law on Investment Promotion (No. 14/NA, dated 17 November 2016), Articles 51 and 52 Law on Enterprise (No. 46/NA, dated 26 December 2013)
3.
Sector : All Sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Foreign employees shall not exceed 15 per cent for technical experts undertaking physical work and 25 per cent for technical experts undertaking mental work of the total number of Lao workers in the enterprise. Working permission shall be obtained from the Ministry of Labour and Social Welfare. Existing Measures : Labour Law (No. 43/NA, dated 24 December 2013), Article 68
4.
Sector : All Sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Foreign investors and their families have the right to reside within the territory of Lao PDR according to their terms of investment. Foreign technicians and experts have the right to reside in the territory of Lao PDR according to their employment contracts. Existing Measures : Law on Investment Promotion (No. 14/NA, dated 17 November 2016), Article 70
5.
Sector : All Sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Term of investment licences General business: The investment in general business has unlimited term of investment except for a business where the term has been determined in accordance with the laws and regulations of relevant authorities. Concession investment: The term of investment in concession business depends on the type, size, investment value, and conditions of the concession activities based on relevant laws and regulations; it shall not exceed 55 years, but may be extended with the approval of the Government of Lao PDR or provincial authorities. Existing Measures : Law on Investment Promotion (No. 14/NA, dated 17 November 2016), Articles 40 and 42
6.
Sector : Manufacturing Subsector : Manufacture of other food products n.e.c. Industry Classification : ISIC 1079 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) National Treatment (Article 10.3) Senior Management and Bo Senior Management and Board of Directors (Article 10.7)ard of Directors (Article 10.7) Description : A foreign investor is allowed to establish a joint venture on the following conditions: (a) that a domestic investor must be the owner and hold the joint venture’s licence; (b) the registered capital of the joint venture must be at least one billion Kip; and (c) the foreign investor shall hold not more than 20 per cent of total shares of the joint venture. Existing Measures : Notification on the List of Types of Businesses Subject to Conditions for Foreign Investors (No. 1327/MOIC.DERM, dated 13 July 2015)
7.
Sector : Manufacturing Subsector : Manufacture of pharmaceutical, medicinal chemical and botanical products Industry Classification : ISIC 2100 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) National Treatment (Article 10.3) Senior Senior Management and BoManagement and Board of Directors (Article 10.7)ard of Directors (Article 10.7) Description : A foreign investor is allowed to establish a joint venture on the following conditions: (a) that a domestic investor must be the owner and hold the joint venture’s licence; (b) the registered capital of the joint venture must be at least one billion Kip; and (c) the foreign investor shall hold not more than 49 per cent of total shares of the joint venture. Existing Measures : Notification on the List of Types of Businesses Subject to Conditions for Foreign Investors (No. 1327/MOIC.DERM, dated 13 July 2015)
8.
Sector : Agriculture Subsector : - Industry Classification : - Level of Government : Central and Provincial Obligations Concerned : National Treatment (Article 10.3) Description : An investor wishing to invest in agriculture activities with a government land concession, shall obtain an approval for primary data collection of land and project from the relevant competent authorities, following procedures as stipulated in relevant laws and regulations. Following the completion of primary data collection, the investor shall obtain an investment approval from relevant competent authorities, and sign a Memorandum of Understanding with the Government of Lao PDR. Provincial competent authorities shall consider a request for: (a) a project with degraded forestland up to 150 hectares and with a lease or concession period not more than 30 years, which may be extended on a case by case basis; and (b) a project with barren forestland up to 500 hectares and with a lease or concession period not more than 30 years, which may be extended on a case by case basis. Central competent authorities shall consider a request for: (a) a project with degraded forestland between 151 and 15,000 hectares and with a lease or concession period more than 30 years, but not exceeding 40 years, which may be extended on a case by case basis; and (b) a project with barren forestland between 501 and 30,000 hectares and with a lease or concession period more than 40 years, but not exceeding 60 years, which may be extended on a case by case basis. Existing Measures : Decree on the Lease or Concession of Government Lands (No. 135/PM, dated 25 May 2009), Articles 28 and 29
9.
Sector : Agriculture Subsector : Pesticide Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : Investments in pesticide businesses are reserved for citizens of Lao PDR. Existing Measures : Regulation on Management and Usage of Pesticide (No. 0886/MAF, dated 10 March 2000)
10.
Sector : Fishery Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : The Government of Lao PDR reserves the right to adopt or maintain any measure with respect to an investor or investment in any activity related to fishery including operation of capture fisheries in Mekong River and its tributary and reservoirs, except for the commercial aquaculture of fish and other aquatic fauna for trade and distribution which shall be licensed and registered in accordance with the Law on Investment Promotion. Existing Measures : Law on Fishery (No. 03/NA, dated 09 July 2009), Article 30 Law on Investment Promotion (No. 14/NA, dated 17 November 2016)
11.
Sector : Mining Subsector : Mining Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : The following licences issued by the Government of Lao PDR shall be obtained: (a) licence for prospecting and exploration; and (b) licence for exploitation and processing. Existing Measures : Law on Minerals (No.02/NA, dated 20 December 2011), Article 32
12.
Sector : Mining Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : Prohibition of Performance Requirements (Article 10.6) Description : The Government of Lao PDR reserves the right to adopt or maintain any measure with respect to an investor or investment related to requirements to supply exclusively from Lao PDR of products that such investment produces to a specific regional market or to the world market. Existing Measures : Law on Minerals (No.02/NA, dated 20 December 2011)
13.
Sector : Mining Subsector : Oil and Natural Gas Industry Classification : ISIC 0620 Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Description : A licence issued by the Government of Lao PDR on oil and natural gas shall be obtained and production sharing contract with an investor must be used. Existing Measures : Law on Minerals (No.02/NA, dated 20 December 2011), Article 32
14.
Sector : All sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : Prohibition on Performance Requirements (Article 10.6) Description : The Government of Lao PDR reserves the right to adopt or maintain any measure with respect to an investor or investment in activities related to royalty and technology transfers. Existing Measures : -
15.
Sector : All sectors Subsector : - Industry Classification : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Prohibition of Performance Requirements (Article 10.6) Prohibition of Performance Requirements (Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : The Government of Lao PDR reserves the right to adopt or maintain any measure with respect to an investor or investment related to Investment Incentive by Business Sector under the Investment Promotion Law. Existing Measures : Investment Promotion Law (No. 14/NA, dated 17 November 2016), Article 9
16.
Sector : All sectors Subsector : - Industry Classification : - Level of Government : All levels Obligations Concerned : National Treatment (Article 10.3) National Treatment (Article 10.3) Prohibition of Performance Requirements Prohibition of Performance Requirements (Article 10.6)(Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : The Government of Lao PDR reserves the right to adopt or maintain any measure with respect to any sectors not identified in this Schedule and new sectors or industries. Any sector classified in the ISIC Code version 3 as at the date of entry into force of this Agreement shall not be considered a new sector or industry for the purposes of this entry. Existing Measures : -
Malaysia
List A. Explanatory Notes
1. This List sets out, pursuant to Article 8.8 (Schedules of Non-Conforming Measures) and Article 10.8 (Reservations and Non-Conforming Measures), Malaysia’s existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 8.4 (National Treatment) or Article 10.3 (National Treatment);
(b) Article 8.5 (Market Access);
(c) Article 8.6 (Most-Favoured-Nation Treatment) or Article 10.4 (Most-Favoured-Nation Treatment);
(d) Article 8.11 (Local Presence);
(e) Article 10.6 (Prohibition of Performance Requirements); or
(f) Article 10.7 (Senior Management and Board of Directors).
2. Each entry in this List sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Subsector, where referenced, refers to the specific subsector for which the entry is made;
(c) Level of Government indicates the level of government maintaining the listed measures;
(d) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 8.8 (Schedules of Non-Conforming Measures) and Article 10.8 (Reservations and Non-Conforming Measures), do not apply to the listed measures;
(e) Description sets out the non-conforming measure for which the entry is made; and
(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.
3. In accordance with Article 8.8 (Schedules of Non-Conforming Measures) and Article 10.8 (Reservations and Non-Conforming Measures), the Articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measure identified in the Description element of that entry.
4. The Schedules of other Parties shall not be used to interpret Malaysia’s commitments or obligations under Chapter 8 (Trade in Services), Chapter 10 (Investment), or other Chapters of this Agreement.
1.
Sector : All sectors Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Local Presence (Article 8.11) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Only Malaysian nationals or permanent residents can register a sole proprietorship or partnership in Malaysia. Foreigners can register a Limited Liability Partnership (LLP), but the compliance officer shall be a citizen or permanent resident of Malaysia that resides in Malaysia. Foreigners are not allowed to establish or join cooperative societies in Malaysia. Measures : Registration of Businesses Act 1956 [Act 197] Limited Liability Partnerships Act 2012 [Act 743] Co-operative Societies Act 1993 [Act 502] Business Names Ordinance 1932 [Sarawak Cap. 64] (1958 Edition) Business, Professions and Trade Licensing Ordinance 1955 [Sarawak Cap. 33] (1958 Edition)
2.
Sector : All sectors Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 10.3) Senior Management and Board of Directors (Article 10.7) Description : Investment At least one director of a private company incorporated in Malaysia shall ordinarily reside in Malaysia by having a principal place of residence in Malaysia. At least two directors of a public company incorporated in Malaysia shall ordinarily reside in Malaysia by having a principal place of residence in Malaysia. Measures : Companies Act 2016 [Act 777]
3.
Sector : Fisheries Subsector : Marine capture fisheries Level of Government : Central and Regional Obligations concerned : National Treatment (Article 8.4 and Article 10.3) Most–Favoured–Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Description : Trade in Services and Investment No foreign fishing vessel shall load or unload any fish, fuel, or supplies, or tranship any fish, or fish or attempt to fish or conduct any techno-economic research or waters survey of any fishery, in Malaysian fisheries waters (1) unless authorised to do so. An application for a permit to be issued in respect of a foreign fishing vessel to fish in Malaysian fisheries waters shall be made through a Malaysian agent who shall undertake legal and financial responsibility for the activities to be carried out by such vessel. For the purposes of this entry, “fishing vessel” means any boat, craft, ship, or other vessel which is used or equipped to be used for, or of a type used for: (a) fishing; or (b) aiding or assisting other boat, craft, ship or other vessel in the performance of any activity related to fishing, including any of the activities of preparation, processing, refrigeration, storage, supply, or transportation of fish. Measures : Fisheries Act 1985 [Act 317] Lembaga Kemajuan Ikan Malaysia Act 1971 [Act 49] Exclusive Economic Zone Act 1984 [Act 311] Continental Shelf Act 1966 [Act 83]
4.
Sector : Patent agent services Trademark agent services Copyright representatives Industrial design agent services Geographical indication agent services Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Local Presence (Article 8.11) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Only a person who is residing in Malaysia or is a permanent resident of Malaysia, and who is registered with the Intellectual Property Corporation of Malaysia (MyIPO), is allowed to carry out a business, practice, or act as a patent agent in Malaysia. Only a person who is residing in Malaysia or is a permanent resident of Malaysia or has principal place of business in Malaysia, and who is registered with MyIPO, is allowed to carry out a business, practice, or act as a trademark, industrial design, or geographical indication agent in Malaysia. Any person who is residing in Malaysia or is a permanent resident of Malaysia, or a company registered under Malaysian law, and carries on business in Malaysia, is allowed to act as a copyright representative. Measures : Patents Act 1983 [Act 291] Trade Marks Act 1976 [Act 175] Industrial Designs Act 1996 [Act 552] Geographical Indications Act 2000 [Act 602] Copyright Act 1987 [Act 332]
5.
Sector : Professional services covering: Engineering services Quantity surveying services Land surveying services Architectural services Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Any qualified persons, who are resident in Malaysia and registered with the relevant professional boards are allowed to provide consultancy practices and supply engineering, quantity surveying, land surveying, and architectural services. Engineering services and architectural services must be authenticated by a registered professional in Malaysia. Engineering, quantity surveying, and architectural consultancy practices must be registered with the relevant professional boards. For each of these establishments, a two thirds majority of its directors shall be registered and authorised professionals. This shall also apply to multi-disciplinary practices (MDP) comprising registered and authorised professional architects, professional engineers, or quantity surveyors. Measures : Registration of Engineers Act 1967 (Revised 1974) [Act 138] Registration of Engineers Regulations 1990 [P.U.(A) 128/90] Licensed Land Surveyors Act 1958 (Revised 1992) [Act 458] Architects Act 1967 [Act 117] Architects Rules 1996 [P.U.(A) 379/96] Quantity Surveyors Act 1967 (Revised 1992) [Act 487] Quantity Surveyors Rules 1973 [P.U.(A) 366/73] Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 [Act 520] Administrative Guidelines Land Surveyors Ordinance 2001 [Sarawak Cap. 40]
6.
Sector : Real estate services on a fee or contract basis Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Local Presence (Article 8.11) Description : Trade in Services and Investment Only registered persons and authorised foreigners registered with the Board of Valuers, appraisers, estate agents, and property managers can provide real estate services for a fee or on contract basis. Measures : Valuers, Appraisers and Estate Agents Act 1981 [Act 242] Valuers, Appraisers and Estate Agents Rules 1986 [P.U. (A) 64/1986] Valuation and Property Services Rules 1999 [P.U.(A) 382/99]
7.
Sector : Communications services Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Description : Trade in Services and Investment Licences for the supply of telecommunications services in Malaysia are divided into individual licences and class licences, depending on the character of the service. The following persons or classes of persons shall be ineligible to apply for an individual licence: (a) a foreign company defined under the Companies Act 2016 [Act 777]; (b) an individual or a sole proprietorship; (c) a partnership; and (d) such other persons or classes of persons as may be decided by the Minister from time to time. The following persons or classes of persons shall be ineligible to be registered as a class licensee: (a) a foreign individual who is not a permanent resident; and (b) a foreign company as defined under the Companies Act 2016 [Act 777]. Foreigners are not permitted to apply for Content Applications Service Providers (CASP) services, a special subset of applications service providers that refers to satellite broadcasting, subscription broadcasting, terrestrial free to air television, or terrestrial radio broadcasting. The Minister charged with the responsibility for Communications and Multimedia may, for good cause or as the public interest may require, permit either of the above to apply to be registered as any one of the licensees mentioned above. Measures : Communications and Multimedia Act 1998 [Act 588] Communications and Multimedia (Licensing) Regulations 2000 [P.U.(A) 129/2000]
8.
Sector : Education services Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Description : Trade in Services and Investment Education services, skill training centres, and vocational institutions can only be provided by education services suppliers that are registered and established in Malaysia, and with authorisation. Measures : Education Act 1996 [Act 550] Private Higher Education Institutions Act 1996 [Act 555] National Skills Development Act 2006 [Act 652] Administrative Guidelines
9.
Sector : Private healthcare services Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Private healthcare facilities and healthcare services can only be provided by services suppliers that are registered and established, or obtained through acquisition, mergers or take-overs, in Malaysia, and with authorisation. Medical Specialty Services Foreigners are not allowed to provide medical specialty services unless they are granted a Temporary Practicing Certificate by the Malaysian Medical Council and are registered as specialists with the National Specialist Register. Specialised Dental Services Foreigners are not allowed to provide specialised dental services unless they are granted a Temporary Practicing Certificate and recognised as specialists by the Malaysian Dental Council. Allied Health Services Foreigners are not allowed to provide allied health services unless such services are registered and established in Malaysia with authorisation. Pharmacists Foreign pharmacists are not allowed to prepare, dispense, assemble, or sell medicinal products unless they are registered and established in Malaysia with authorisation by the Pharmacy Board Malaysia and the relevant regulatory bodies. Traditional and Complementary Medicine Traditional and complementary medicine services can only be provided by services suppliers that are registered in Malaysia, and with authorisation. Measures : Medical Act 1971 [Act 50] Medical Regulations 2017 [P.U. (A) 188/2017] Dental Act 2018 [Act 804] Private Healthcare Facilities and Services Act 1998 [Act 586] Private Healthcare Facilities and Services (Private Medical Clinics or Private Dental Clinics) Regulations 2006 [P.U. (A) 137/2006] Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 [P.U.(A) 138/2006] Registration of Pharmacists Act 1951 [Act 371] Poisons Act 1952 (Revised 1989) [Act 366] Allied Health Professions Act 2016 [Act 774] Traditional and Complementary Medicine Act 2016 [Act 775] Administrative Guidelines
10.
Sector : Customs agents and brokers Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Description : Trade in Services and Investment Foreigners are not allowed to act as customs agents and brokers. Foreigners are not allowed to own more than 49 per cent of equity shareholding in any entity providing and supplying customs agents and brokers services. Measures : Customs Act 1967 (Revised 1980) [Act 235] Customs Regulations 1977 [P.U.(A) 162/77] Customs Standing Orders No.45/2003
11.
Sector : Tour operators and tourist guide services Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Description : Trade in Services and Investment Foreigners are not allowed to provide tour operators and tourist guide services unless authorisation is obtained. Measures : Tourism Industry Act 1992 [Act 482] Administrative Guidelines
12.
Sector : Transport services Subsector : International maritime transport services Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Foreign shipping vessels are not permitted to provide and supply domestic shipping services. Malaysia International Ship Registry Foreign persons may provide international maritime services in domestic waters only through a representative office, regional office, or locally incorporated joint venture or corporation with Malaysian individuals or Malaysian-controlled corporations or both. Aggregate foreign shareholding in the joint venture or corporation shall be the majority shares including the voting shares. All joint ventures or corporations seeking to register ships under this registry shall appoint a ship manager prior to registration of a ship, who shall be: (a) a Malaysian citizen having his or her permanent residence in Malaysia; or (b) a company incorporated in Malaysia and having its principal place of business in Malaysia. Malaysia Ship Registry Only ships registered on the Malaysia Ship Registry may provide domestic maritime services. Foreign persons may only register a ship on the Malaysia Ship Registry through a representative office, regional office, or locally incorporated joint venture or corporation with Malaysian individuals or Malaysian-controlled corporations or both. Aggregate foreign shareholding in the joint venture or corporation shall not be the majority shares including the voting shares. All joint ventures or corporations seeking to register ships under this registry shall satisfy the following conditions: (a) majority of senior managers and board of directors shall be Malaysians; and (b) incorporated in Malaysia and having main business operations in Malaysia. Measures : Merchant Shipping Ordinance 1952 [Ordinance 70/1952] Merchant Shipping Ordinance 1960 (Sabah) [Ordinance 11/1960] Merchant Shipping Ordinance 1960 (Sarawak) [Ordinance 2/1960] Merchant Shipping (Amendment and Extension) Act 2007 [Act A1316] Administrative Guidelines
13.
Sector : Construction and related engineering services Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Only an entity incorporated in Malaysia registered with the Malaysian Construction Development Board (CIDB) and locally incorporated either through a representative office, regional office, or joint venture corporation, with Malaysian individuals or Malaysian-controlled corporations, may be permitted to provide construction and related services. Any entity incorporated in Malaysia, whose foreign equity exceeds more than 30 per cent by way of a joint venture corporation or consortium with Malaysian individuals or Malaysian-controlled corporations, is subject to the registration requirements by CIDB. The senior management and board of directors of each foreign entity shall be of Malaysian majority that shall have control over its management and investment. Measures : Registration of Engineers Act 1967 (Revised 1974) [Act 138] Registration of Engineers Regulations 1990 [P.U. (A) 128/90] Licensed Land Surveyors Act 1958 (Revised 1991) [Act 458] Architects Act 1967 [Act 117] Architects Rules 1996 [P.U.(A) 379/96] Quantity Surveyors Act 1967 (Revised 1992) [Act 487] Quantity Surveyors Rules 1973 [P.U. (A) 366/73] Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 [Act 520] Administrative Guidelines
14.
Sector : Freight road transportation services Subsector : - Level of Government : Central Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Local Presence (Article 8.11) Description : Trade in Services and Investment Only entities that are registered and established in Malaysia are allowed to provide freight road transportation services in Malaysia. Foreigners are not allowed to own more than 49 per cent of equity shareholding in any entity providing and supplying freight transportation services covering transportation of containerised freight based on a fee or contractual basis. Measures : Land Public Transport Act 2010 [Act 715] Land Public Transport Agency (APAD) Licensing Policy Guidelines
15.
Sector : Manufacturing Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 10.3) Description : Investment Foreign equity is restricted to no more than 30 per cent for the manufacture of batik fabric and apparel of batik. Measures : Industrial Co-ordination Act 1975 [Act 156] Administrative Guidelines
16.
Sector : Manufacturing Subsector : - Level of Government : Central and Regional Obligations Concerned : Prohibition of Performance Requirements (Article 10.6) Description : Investment (a) Companies located within the Licensed Manufacturing Warehouse (LMW) and Free Industrial Zone (FIZ) are subject to export requirements. (b) Companies engaging in petroleum refining activities are required to export 100 per cent of their products. (c) Expansion projects will be considered only for existing independent palm oil refineries which source 100 per cent from their own plantations. For Sabah and Sarawak, a manufacturing licence will only be considered for new integrated projects which source 50 per cent of crude palm oil from their own plantations. Integrated projects refer to projects with own plantations. (d) For pineapple canning, approval will only be granted for projects which source 100 per cent supply from their own plantations. Measures : Industrial Co-ordination Act 1975 [Act 156] Customs Act 1967 (Revised 1980) [Act 235] Free Zone Act 1990 [Act 438] Petroleum Development Act 1974 [Act 144] Pineapple Industry (Cannery Control) Regulations 1959 [LN.24/1959] Pineapple Industrial Act 1957 (Revised 1990) [Act 427] Administrative Guidelines
17.
Sector : Legal services (other than arbitration) Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Description : Trade in Services and Investment Peninsular Malaysia and the Federal Territory of Labuan Foreign law firms and foreign lawyers are not permitted to practice save as provided under the Legal Profession Act 1976 [Act 166] and the Legal Profession (Licensing of International Partnerships and Qualified Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014 [P.U. (A) 148/2014]. Foreign law firms from recognised jurisdictions must apply to the Selection Committee to be established as a Qualified Foreign Law Firm (QFLF) or an International Partnership (IP) with a Malaysian law firm. A maximum of five QFLF licences may be issued initially and only to foreign law firms with proven expertise in International Islamic Finance. Only foreign lawyers from recognised jurisdictions can apply to work in a QFLF, an IP or a Malaysian law firm. Such foreign lawyers must be resident in Malaysia for not less than 182 days in any calendar year. A QFLF and an IP, and a registered foreign lawyer working in a Malaysian law firm are subject to the provisions of the Legal Profession Act 1976 [Act 166]. Foreign lawyers providing legal services in Malaysia on a “fly in and fly out” basis shall be subject to the provisions under section 37(2B)(b) of the Legal Profession Act 1976 [Act 166]. Sabah and Sarawak Foreign law firms and foreign lawyers are not permitted to practice in Sabah or Sarawak. Measures : Legal Profession Act 1976 [Act 166] Legal Profession (Licensing of International Partnerships and Qualified Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014 [P.U. (A) 148/2014] Labuan Companies Act 1990 [Act 441] Labuan Financial Services and Securities Act 2010 [Act 704] Advocates Ordinance of Sabah 1953 [Sabah Ordinance Cap. 2] Advocates Ordinance of Sarawak 1953 [Sarawak Ordinance Cap. 110]
18.
Sector : Wholesale and retail trade services Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Most-Favoured-Nation Treatment (Article 8.6 and Article 10.4) Local Presence (Article 8.11) Prohibition of Performance Requirements (Article 10.6) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Foreigners are not allowed to operate supermarkets, mini markets, provision shop or general vendor, permanent wet markets, permanent pavement markets, fuel stations with or without kiosks, news agents, medical halls, Malaysian cuisine restaurants, bistros, and textile stores. Measures : Guidelines on Foreign Participation in the Distribution Trade Services in Malaysia 2020 Franchise Act 1998 [Act 590] Companies Act 2016 [Act 777]
19.
Sector : All sectors Subsector : - Level of Government : Regional Obligations Concerned : Prohibition of Performance Requirements (Article 10.6) Description : Investment Adoption of a given rate or amount of royalty under a licence contract may be subject to approval by the relevant State authority. Measures : Policies and Ministerial Statements Industrial Co-ordination Act 1975 [Act 156] Administrative Guidelines
20.
Sector : Veterinary services covering only equine animals in equestrians or turf clubs Subsector : - Level of Government : Central and Regional Obligations Concerned : National Treatment (Article 8.4 and Article 10.3) Market Access (Article 8.5) Local Presence (Article 8.11) Senior Management and Board of Directors (Article 10.7) Description : Trade in Services and Investment Veterinary services related to equine animals in equestrians or turf clubs shall be registered and established subject to authorisation by the Malaysian Veterinary Council. Measures : Veterinary Surgeons Act 1974 [Act 147] Administrative Guidelines
List B. Explanatory Notes
1. This List sets out, pursuant to Article 8.8 (Schedules of Non-Conforming Measures) and Article 10.8 (Reservations and Non-Conforming Measures), the specific sectors, subsectors, or activities, for which Malaysia may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 8.4 (National Treatment) or Article 10.3 (National Treatment);
(b) Article 8.5 (Market Access);