Chapter 6bis. Movement of Natural Persons
50 bis.1. Objectives
The objectives of this Chapter are to:
(a) provide the rights and obligations in relation to the movement of natural persons between the Parties for the purposes of trade in services and investment;
(b) facilitate the movement of natural persons engaged in the conduct of trade and investment between the Parties; and
(c) establish streamlined and transparent procedures for applications for immigration formalities for the entry and temporary stay of natural persons to whom this Chapter applies.
50 bis.2. Scope
1. This Chapter shall apply to measures affecting the movement of natural persons of a Party who enter the territory of another Party and who fall under one of the categories referred to in paragraph 1 of Article 50 bis.4.
2. This Chapter shall not apply to measures affecting natural persons of a Party seeking access to the employment market of another Party, nor shall it apply to measures regarding nationality or citizenship, or residence or employment on a permanent basis.
3. This Chapter shall not prevent a Party from applying measures to regulate the entry and temporary stay of natural persons of another Party in its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in a manner so as to nullify or impair the benefits accruing to another Party under the terms of the specific commitments.
Note: The sole fact of requiring a visa for natural persons of a certain nationality or citizenship and not for those of others shall not be regarded as nullifying or impairing benefits under the terms of specific commitments set out in Annex 9.
50 bis.3. Definitions
For the purposes of this Chapter, the term:
(a) “natural person of another Party” means a natural person who resides in the territory of that other Party or elsewhere, and who under the law of that other Party:
(i) is a national of that other Party; or
(ii) has the right of permanent residence in that other Party, in the case of a Party which accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, as notified to all other Parties after the entry into force of the First Protocol, provided that no Party is obliged to accord to such permanent residents treatment more favourable than would be accorded by that other Party to such permanent residents. Such notification shall include the assurance to assume, with respect to the permanent residents, in accordance with its laws and regulations, the same responsibilities that other Party bears with respect to its nationals;
Note: In the case of the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Kingdom of Thailand, the Socialist Republic of Viet Nam and Japan, natural person of another Party shall be limited to a natural person who resides in the territory of that other Party or elsewhere and who under the law of that other Party is a national of that other Party. Therefore, in line with the principle of reciprocity, this Chapter shall not apply to the permanent residents of the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Kingdom of Thailand, the Socialist Republic of Viet Nam and Japan. Once any of these Parties enacts its laws on the treatment of permanent residents of another Party or non-Party, there shall be negotiations among the Parties on the issue of whether to include permanent residents in the coverage of natural person under this Chapter in respect of that Party.
(b) “short-term business visitor” means: in the context of entry and temporary stay of a natural person of another Party in an ASEAN Member State, a natural person seeking to enter or stay in the territory of an ASEAN Member State temporarily, whose remuneration and financial support for the duration of the visit is derived from outside of that ASEAN Member State:
(i) as a representative of a goods seller/service supplier, for the purpose of negotiating the sale of goods or supply of services or entering into agreements to sell goods or supply services for that goods seller/service supplier, where such negotiations do not involve direct sale of goods or supply of services to the general public;
(ii) as an employee of a juridical person as defined in subparagraphs (f)(i) through (iii) only for the purpose of establishing an investment or setting up a commercial presence, for the juridical person in the territory of that ASEAN Member State;
(iii) for the purpose of participating in business negotiations or meetings; or
(iv) for the purpose of establishing an investment or setting up a commercial presence in the territory of that ASEAN Member State; and in the context of entry and temporary stay of a natural person of an ASEAN Member State in Japan, the activities of a short-term business visitor allowed in Japan are described in the terms of the specific commitments set out in Annex 9;
(c) “contractual service supplier” means: in the context of entry and temporary stay of a natural person of another Party in an ASEAN Member State, a natural person who is an employee of a juridical person established in the territory of another Party which has no commercial presence in the territory of that ASEAN Member State where services will be provided, who:
(i) enters the territory of that ASEAN Member State temporarily in order to supply a service pursuant to a contract or contracts between his or her employer and a service consumer or service consumers in the territory of that ASEAN Member State;
(ii) is either an executive, manager, or specialist as defined in subparagraphs (f)(i) through (iii), who receives remuneration from his or her employer;
(iii) must possess the appropriate educational and professional qualifications relevant to the service to be provided; and
(iv) as may be applicable, has been an employee of the juridical person for a period as may be specified in the terms of specific commitments set out in Annex 9; and
in the context of entry and temporary stay of a natural person of an ASEAN Member State in Japan, the activities of contractual service supplier allowed in Japan are described in the terms of the specific commitments set out in Annex 9;
(d) “granting Party” means a Party who receives an application for entry and temporary stay from a natural person of another Party who is covered by Article 50 bis.2;
(e) “immigration formality” means: with respect to an ASEAN Member State, a visa, permit, pass or other documents or electronic authority in accordance with the laws and regulations of that ASEAN Member State granting a natural person of another Party the right to temporarily enter, stay, work, or to establish commercial presence in the territory of the granting Party; and with respect to Japan, only visa, which grants entry and temporary stay in accordance with the laws and regulations of Japan;
(f) “intra-corporate transferee” means: in the context of entry and temporary stay of a natural person of another Party in an ASEAN Member State, a natural person who is an employee of a juridical person established in the territory of another Party, who is transferred temporarily for the supply of a service through commercial presence (either through a representative office, branch, subsidiary or affiliate) in the territory of that ASEAN Member State, and who has been an employee of the juridical person for a period as may be specified in the terms of specific commitments set out in Annex 9, and who is:
(i) an “executive”: being a natural person within the organisation who primarily directs the management of the organisation, exercises wide latitude in decision making and receives only general supervision or direction from higher level executives, the board of directors or stockholders of the business; an executive would not directly perform tasks related to the actual provision of the service or services of the organisation;
(ii) a “manager”: being a natural person within the organisation who primarily directs the organisation/department/subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff. It does not include first line supervisors unless employees supervised are professionals; and it does not include employees who primarily perform tasks necessary for the provision of the service; or
(iii) a “specialist”: being a natural person within the organisation who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organisation’s service, research equipment, techniques or management; and it may include, but is not limited to, members of a licensed profession; and
in the context of entry and temporary stay of a natural person of an ASEAN Member State in Japan, the activities of intra-corporate transferee allowed in Japan are described inthe terms of the specific commitments set out in Annex 9; and
(g) “entry and temporary stay” means entry into and stay in the territory of a Party by a natural person of another Party, without the intent to establish permanent residence.
50 bis.4. Specific Commitments
1. Each Party shall grant entry and temporary stay to natural persons of another Party in accordance with this Chapter including the terms of the categories in Annex 9, provided that the natural persons comply with the laws and regulations, including prescribed application procedures for the immigration formality sought and eligibility requirements, of the former Party related to movement of natural persons applicable to entry and temporary stay, which are not inconsistent with the provisions of this Chapter.
Such natural persons may include:
(a) short-term business visitors;
(b) intra-corporate transferees;
(c) contractual service suppliers;
(d) investors; and
(e) other categories as may be specified in Annex 9.
2. A Party may deny entry and temporary stay to natural persons of another Party that do not comply
with paragraph 1.
3. No Party shall impose or maintain any limitations on the total number of visas to be granted in that Party to natural persons of another Party unless otherwise specified in Annex 9.
50 bis.5. Processing of Applications
1. Each Party shall process without undue delay complete applications for immigration formalities or extensions thereof received from an applicant who is a natural person of another Party covered by Article 50 bis.2 or his or her employer.
2. If the competent authorities of a Party require additional information in order to process the application for an immigration formality, they shall, where applicable, endeavour to notify the applicant without undue delay.
3. Each Party shall, upon request and within a reasonable period of time after receiving a complete application for an immigration formality, notify the applicant of:
(a) the receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application including, if approved, the period of stay and other conditions.
4. Each Party shall endeavour to simplify the requirements including required documentation, and to facilitate and expedite the procedures, relating to entry and temporary stay, in accordance with its laws and regulations.
5. Any fees imposed by a Party in respect of the processing of an application referred to in paragraph 1 shall be reasonable and in accordance with its laws and regulations.
50 bis.6. Transparency
Each Party shall:
(a) publish or otherwise make publicly available explanatory material and relevant forms and documents on all relevant immigration formalities which pertain to or affect the operation of this Chapter;
(b) maintain or establish contact points or other appropriate mechanisms to respond to enquiries from interested persons regarding its laws and regulations relating to entry and temporary stay of natural persons;
(c) to the extent possible, allow reasonable time between publication of new regulations affecting entry and temporary stay of natural persons and their effective date. Such publication may be made electronically available; and
(d) upon modifying or amending any immigration measure that affects the entry and temporary stay of natural persons, ensure that the information published or otherwise made available pursuant to subparagraph (a) is updated as soon as possible.
50 bis.7. Recognition
1. For the purposes of smooth movement of natural persons under this Chapter, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in another Party for the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of natural persons of that other Party.
2. Recognition referred to in paragraph 1, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement between the Parties concerned or may be accorded unilaterally.
3. Where a Party recognises by agreement or arrangement between the Party and a non-Party or unilaterally, the education or experience obtained, requirements met, or licences or certifications granted in the non-Party, the Party shall accord to the other Parties an adequate opportunity to demonstrate that the education or experience obtained, requirements met or licences or certifications granted in the other Parties should also be recognised.
50 bis.8. Application of Chapter 9
1. Without prejudice to Chapter 9, the Parties shall endeavour to resolve any differences arising out of the implementation of this Chapter through consultations.
2. A Party shall not have recourse to Chapter 9 regarding a refusal to grant entry and temporary stay under this Chapter unless:
(a) the matter involves a pattern of practice on the part of the granting Party; and
(b) the natural persons of the Party concerned have exhausted the domestic remedies, where available, regarding the particular matter.
50 bis.9. General Exceptions
For the purposes of this Chapter, Article 50.13 shall apply mutatis mutandis.
50 bis.10. Measures Pursuant to Immigration Laws and Regulations
Except for this Chapter and Chapters 1, 9 and 10, nothing in this Agreement shall impose any obligation on each Party regarding measures affecting the movement of natural persons of another Party.
Note: For greater certainty, the measures affecting the movement of natural persons of another Party include immigration formalities.
6. Amendment to Chapter 7 (Investment) of the AJCEP Agreement
Chapter 7 of the AJCEP Agreement shall be replaced by the following:
Chapter 7. Investment
51.1. Scope and Coverage
1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
(a) investors of another Party; and
(b) covered investments.
2. This Chapter shall not apply to:
(a) any measure that a Party adopts or maintains with respect to government procurement;
(b) subsidies or grants provided by a Party;
(c) services supplied in the exercise of governmental authority, provided that such services are supplied neither on a commercial basis, nor in competition with one or more service suppliers; and
(d) claims arising out of events which occurred prior to the date of entry into force of the First Protocol.
3. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapters 6 and 6 bis.
4. Notwithstanding paragraph 3, Articles 51.4, 51.9, 51.10, 51.11, 51.12 and 51.13 shall apply to any measure affecting the supply of a service by a service supplier of a Party through commercial presence in the territory of another Party covered by Chapter 6, but only to the extent that any such measure relates to a covered investment and an obligation under this Chapter.
Note: For greater certainty, paragraph 4 shall not preclude a Party from applying Articles 8, 51.14, 51.15, 51.19, 51.20, 51.21 or other relevant provisions of this Chapter to any measure affecting the supply of a service by a service supplier of a Party through commercial presence in the territory of another Party covered by Chapter 6, but only to the extent that any such measure relates to a covered investment and an obligation under this Chapter.
51.2. Definitions
For the purposes of this Chapter, the term:
(a) “covered investment” means, with respect to a Party, an investment in its territory of an investor of another Party in existence as of the date of entry into force of the First Protocol or established, acquired or expanded thereafter, and which, where applicable, has been admitted, according to its laws, regulations and national policies;
Note 1: For greater certainty, “national policies” means those policies affecting an investment that are endorsed and announced by the Government of a Party, and made publicly available in a written form. Each Party shall, upon request by another Party, respond to specific questions from, and provide information to, the latter Party, in the English language, with respect to such national policies.
Note 2: In the case of the Kingdom of Thailand, this Chapter shall apply to covered investments which, where applicable, have been specifically approved in writing for protection by the competent authorities, in accordance with its laws, regulations and national policies.
Note 3: In the case of the Kingdom of Cambodia and the Socialist Republic of Viet Nam, “has been admitted” means “has been specifically registered or approved in writing, as the case may be”.
(b) “freely usable currency” means any currency designated as such by the IMF under the Articles of Agreement of the IMF as may be amended;
(c) “investment” means every kind of asset that an investor owns or controls, which has the characteristics of an investment, such as the commitment of capital or other resources, the expectation of gains or profits, or the assumption of risk, including:
(i) movable and immovable property, any other tangible and intangible property, and any other related property rights, such as leases, mortgages, liens and pledges;
(ii) shares, stocks, bonds, debentures, loans and other forms of debt or equity participation in a juridical person, including rights or interests derived therefrom;
(iii) intellectual property rights that are conferred pursuant to the laws and regulations of a Party in whose territory the investment is made, including, where applicable, copyrights and related rights, patent rights and rights relating to utility models, trademarks, industrial designs, layout-designs of integrated circuits, new varieties of plants, trade names, indications of source or geographical indications, undisclosed information, and goodwill;
(iv) rights under contracts, including turnkey, construction, management, production or revenue-sharing contracts;
(v) rights conferred pursuant to laws and regulations or contracts such as concessions, licences, authorisations and permits, including those for the exploration and exploitation of natural resources; and
(vi) claims to money and to any performance under contract having a financial value, but the term “investment” does not include claims to money that arise solely from:
(A) commercial contracts for the sale of goods or services by a natural or juridical person in the territory of a Party to a natural or juridical person in the territory of another Party; or
(B) the extension of credit in connection with a commercial transaction, such as trade financing;
The term “investment” also includes returns, which are the amounts yielded by or derived from an investment, in particular, though not exclusively, profits, interests, capital gains, dividends, royalties and fees. A change in the form in which assets are invested does not affect their character as investments;
Note: The term “investment” does not include an order or judgment entered in a judicial or administrative action.
(d) “investor of a Party” means:
(i) a natural person of a Party; or
(ii) a juridical person of a Party,
that seeks to make, is making, or has made investments in the territory of another Party;
Note: The Parties understand that an investor of a Party that “seeks to make” investments refers to an investor of a Party that has taken active steps to initiate a notification or approval process, where applicable, for making an investment for a permit or licence which authorises the investor to establish investments.
(e) “juridical person of a Party” means any legal entity duly constituted or otherwise organised under a Party’s applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, sole proprietorship, joint venture, or other association or organisation;
(f) “measure” means any measure, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form, affecting investors or investments;
(g) “measure by a Party” means any measure adopted or maintained by:
(i) central, regional or local governments and authorities of a Party; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities of a Party; and
(h) “natural person of a Party” means, for the purposes of subparagraph (d), a natural person who under the law of that Party:
(i) is a national or citizen of that Party; or
(ii) has the right of permanent residence in that Party, where both that Party and another Party recognise permanent residents and accord substantially the same treatment to their respective permanent residents as they accord to their respective nationals in respect of measures affecting investment.
51.3. National Treatment
Each Party shall accord to investors of another Party and to their covered investments treatment no less favourable than that it accords, in like circumstances, to its own investors and to their investments with respect to establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
Note: The application of this Article is subject to Article 51.23.
51.4. General Treatment
1. Each Party shall accord to covered investments fair and equitable treatment and full protection and security, in accordance with customary international law.
2. For greater certainty, the concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required under the customary international law referred to in paragraph 1, and do not create additional substantive rights.
3. The Parties understand that:
(a) “fair and equitable treatment” requires each Party not to deny justice in any legal or administrative proceedings in accordance with the principle of due process of law; and
(b) “full protection and security” requires each Party to take such measures as may be reasonably necessary to ensure the protection and security of the covered investment.
4. A determination that there has been a breach of another provision of this Chapter, or of a separate international agreement, does not establish that there has been a breach of this Article.
51.5. Prohibition of Performance Requirements
1. No Party shall impose or enforce as a condition for establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory of an investor of another Party any of the following requirements:
(a) to export a given level or percentage of goods;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to goods produced in its territory, or to purchase goods from a person or any other entity in its territory;
(d) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with the investments of that investor; or
(e) to restrict sales of goods in its territory that the investments of that investor produce or provide by relating such sales to the volume or value of its exports or foreign exchange earnings.
2. No Party may condition the receipt or continued receipt of an advantage, in connection with investment activities in its territory of an investor of another Party, on compliance with any of the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods from a person or any other entity in its territory;
(c) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with investments of that investor; or
(d) to restrict sales of goods in its territory that investments of that investor produce or provide by relating such sales to the volume or value of its exports or foreign exchange earnings.
3. Subparagraphs 2(a) and (b) shall not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
4. For greater certainty, paragraphs 1 and 2 do not apply to any requirement other than the requirements set out in those paragraphs.
Note: The application of this Article is subject to Article 51.23.
51.6. Senior Management and Boards of Directors
1. A Party shall not require a juridical person of that Party that is a covered investment to appoint to senior management positions natural persons of any particular nationality.
2. A Party may require that a majority of the members of the board of directors, or any committee thereof, of a juridical person of that Party that is a covered investment, be of a particular nationality or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.