2. In accordance with Article 9.12 (Non-Conforming Measures) and Article 10.7 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the laws, regulations, rules, procedures, decisions, administrative actions, practices or other measures identified in the Description element of that entry. 

Sector: All 

Obligations Concerned: National Treatment (Article 9.4) 

Level of Government: Central 

Measures: Companies Act 1993 

Financial Reporting Act 1993 

Description: Investment 

Consistent with New Zealand’s financial reporting regime established under the Companies Act 1993 and Financial Reporting Act 1993, the following overseas non-issuer companies are required to file audited financial statements with the Registrar of Companies: 

(a) any company that is incorporated outside New Zealand that carries on business in New Zealand; 

(b) any large company incorporated in New Zealand in which shares that carry the right to exercise or control the exercise of 25 per cent or more of the voting power are held by: 

(i) a subsidiary of a company or body corporate incorporated outside New Zealand; 

(ii) a company or body corporate incorporated outside New Zealand; or 

(iii) a person not ordinarily resident in New Zealand; and 

(c) any company that is a subsidiary of a company or body corporate incorporated outside New Zealand. 

A company is “large” if it meets at least two of the following criteria:

(a) the total assets of the company and its subsidiaries exceeds NZ$10 million;

(b) the company and its subsidiaries have a total turnover of NZ$20 million or more; and

(c) the company and its subsidiaries have 50 or more full-time equivalent employees.

These requirements do not apply if the overseas company is a subsidiary of a New Zealand company that has already filed audited group financial statements with the Registrar of Companies."

Sector: Business Services

Obligations Concerned: National Treatment (Article 10.3) Most-Favoured-Nation Treatment (Article 10.4) Level of Government: Central

Measures: Section 100(2)(a) of the Patents Act 1953

Description: Cross-Border Trade in Services

Registration of patent attorneys is restricted to those who satisfy the criteria set out in section 100(2)(a) of the Patents Act 1953, being any person who is a British subject or a citizen of the Republic of Ireland.

Sector: Agriculture, including services incidental to agriculture

Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Dairy Industry Restructuring Act 2001

Description: Investment and Cross-Border Trade in Services

The Dairy Industry Restructuring Act 2001 (DIRA) and Regulations provide for the management of a national database for herd testing data. The database is currently held by the Livestock Improvement Corporation Ltd (LIC).

The DIRA:

(a) provides for the New Zealand government to determine arrangements for the database to be managed by another dairy industry entity. In doing so the New Zealand government may:

(i) take into account the nationality and residency of the entity, persons that own or control the entity, and the senior management and board of directors of the entity; and

(ii) restrict who may hold shares in the entity, including on the basis of nationality;

(b) requires the transfer of data by those engaged in herd testing of dairy cattle to the LIC or successor entity;

(c) establishes rules regarding access to the database and that access may be denied on the basis that its the database’s intended use could be “harmful to the New Zealand dairy industry, which may take into account the nationality or residency of the person seeking access.

Sector: Communication Services Telecommunications

Obligations Concerned: National Treatment (Article 9.4) Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Constitution of Chorus Limited

Description: Investment

The Constitution of Chorus Limited requires New Zealand government approval for the shareholding of any single overseas entity to exceed 49.9 per cent.

At least half of the Board directors are required to be New Zealand citizens.

Sector: Communication Services Audio-visual Services

Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Local Presence (Article 10.6) Performance Requirements (Article 9.10)

Level of Government: Central

Measures: Radiocommunications Act 1989

Description: Investment and Cross-Border Trade in Services

The acquisition of licences or management rights to use the radio frequency spectrum, or any interest in such licences or management rights, under the Radiocommunications Act 1989 by foreign governments or agents on behalf of foreign governments is subject to the written approval of the Chief Executive of the Ministry of Business, Innovation and Employment.

Sector: Agriculture, including services incidental to agriculture

Obligations Concerned: Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Primary Products Marketing Act 1953

Description: Investment

Under the Primary Products Marketing Act 1953, the New Zealand Government may impose regulations to enable the establishment of statutory marketing authorities with monopoly marketing and acquisition powers (or lesser powers) for “primary products”, being products derived from beekeeping, fruit growing, hop growing, deer farming or game deer, or goats, being the fur bristles or fibres grown by the goat.

Regulations may be issued under the Primary Products Marketing Act 1953 concerning a broad range of the marketing authority’s functions, powers and activities. In particular, regulations may require that board members or personnel be nationals of or resident in New Zealand.

Sector: Air Transportation

Obligations Concerned: National Treatment (Article 9.4) Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Civil Aviation Act 1990

Ministerial Guidelines

Description: Investment

Only a licensed air transport enterprise may provide international scheduled air services as a New Zealand international airline. Licences to provide international scheduled air services as a New Zealand international airline are subject to certain conditions to ensure compliance with New Zealand’s air services agreements. Such conditions may include requirements that an airline is substantially owned and effectively controlled by New Zealand nationals, has its principal place of business in New Zealand or is subject to the effective regulatory control of the New Zealand Civil Aviation Authority.

Sector: Air Transportation

Obligations Concerned: National Treatment (Article 9.4) Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Constitution of Air New Zealand Limited

Description: Investment

No one foreign national may hold more than 10 per cent of shares that confer voting rights in Air New Zealand unless they have the permission of the Kiwi Shareholder (1). In addition:

(a) at least three members of the Board of Directors must be ordinarily resident in New Zealand; and

(b) more than half of the Board of Directors must be New Zealand citizens.

Sector: All

Obligations Concerned: National Treatment (Article 9.4) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11)

Level of Government: Central

Measures: Overseas Investment Act 2005 Fisheries Act 1996

Overseas Investment Regulations 2005

Description: Investment

Consistent with New Zealand’s overseas investment regime as set out in the relevant provisions of the Overseas Investment Act 2005, the Fisheries Act 1996 and the Overseas Investment Regulations 2005, the following investment activities require prior approval from the New Zealand Government:

(a) acquisition or control by non-government sources of 25 per cent or more of any class of shares (2) or voting power (3) in a New Zealand entity where either the consideration for the transfer or the value of the assets exceeds NZ$200 million;

(b) commencement of business operations or acquisition of an existing business by non- government sources, including business assets, in New Zealand, where the total expenditures to be incurred in setting up or acquiring that business or those assets exceed NZ$200 million;

(c) acquisition or control by government sources of 25 per cent or more of any class of shares (4) or voting power (5) in a New Zealand entity where either the consideration for the transfer or the value of the assets exceeds NZ$100 million;

(d) commencement of business operations or acquisition of an existing business by government sources, including business assets, in New Zealand, where the total expenditures to be incurred in setting up or acquiring that business or those assets exceed NZ$100 million;

(e) acquisition or control, regardless of dollar value, of certain categories of land that are regarded as sensitive or require specific approval according to New Zealand’s overseas investment legislation; and

(f) any transaction, regardless of dollar value, that would result in an overseas investment in fishing quota.

Overseas investors must comply with the criteria set out in the overseas investment regime and any conditions specified by the regulator and the relevant Minister or Ministers.

This entry should be read in conjunction with Annex II – New Zealand – 7 and 8.

Sector: All

Obligations concerned: Performance Requirements (Article 9.10)

Level of Government: Central

Measures: Income Tax Act 2007

Goods and Services Tax Act 1985 Estate and Gift Duties Act 1968 Stamp and Cheque Duties Act 1971 Gaming Duties Act 1971

Tax Administration Act 1994

Description: Any existing non-conforming taxation measures.

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 9.12.1 (Non-Conforming Measures) and Article 10.7.1 (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 9.4) 

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 correspondent 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 10.3)

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, shipowners 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 Superintendence of Banking, Insurance and 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 shipowner 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 the Satellite Tracking System in its vessel, except for shipowners 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 shipowner 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.

Shipowners of foreign-flagged fishing vessels that operate in Peruvian jurisdictional waters must hire a minimum of 30 per cent of Peruvian crew, subject to applicable domestic legislation.

Sector: Radio and Television Broadcasting Services

Sub-Sector:

Obligations Concerned: National Treatment (Article 9.4) Local Presence (Article 10.6)

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 9.10) National Treatment (Article 10.3)

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 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4)

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 9.11) National Treatment (Article 10.3) Most-Favoured-Nation Treatment (Article 10.4)

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