Section 2. ESTABLISHMENT
Article 83. Scope
This Section applies to measures adopted or maintained by the Parties affecting establishment (9) in respect of all economic activities with the exception of:
(a) mining, manufacturing and processing (10) of nuclear materials;
(b) production of or trade in arms, munitions and war material;
(c) audio-visual services;
(d) national maritime cabotage (11), and
(e) domestic and international air transport services (12), whether scheduled or unscheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (hereinafter referred to as "CRS") services;
(iv) ground handling services;
(v) airport operation services.
Article 84. National Treatment and Most Favourable Nation Treatment
1. Subject to reservations listed in Annex XII-D to this Agreement, Ukraine shall grant, upon entry into force of this Agreement:
(i) as regards the establishment of subsidiaries, branches and representative offices of legal persons of the United Kingdom, treatment no less favourable than that accorded to its own legal persons, branches and representative offices or to any third-country legal persons, branches and representative offices, whichever is better;
(ii) as regards the operation of subsidiaries, branches and representative offices of legal persons of the United Kingdom in Ukraine, once established, treatment no less favourable than that accorded to its own legal persons, branches and representative offices; or to any third- country legal persons, branches and representative offices, whichever is better. (13)
2. Subject to reservations listed in Annex XII-A to this Agreement, the United Kingdom shall grant, upon entry into force of this Agreement:
(i) as regards the establishment of subsidiaries, branches and representative offices of legal persons of Ukraine, treatment no less favourable than that accorded by the United Kingdom to its own legal persons, branches and representative offices or to any third-country legal persons, branches and representative offices, whichever is better;
(ii) as regards the operation of subsidiaries, branches and representative offices of legal persons of Ukraine in the United Kingdom, once established, treatment no less favourable than that accorded to its own legal persons, branches and representative offices; or to any third- country legal persons, branches and representative offices, whichever is better. (14)
3. Subject to reservations listed in Annexes XI-A and XII-D to this Agreement, the Parties shall not adopt any new regulations or measures which introduce discrimination as regards the establishment of legal persons of the United Kingdom or of Ukraine on their territory or in respect of their operation, once established, by comparison with their own legal persons.
Article 85. Review
1. With a view to progressively liberalising the establishment conditions, the Parties shall regularly review the establishment legal framework (15) and the establishment climate, consistent with their commitments under international agreements.
2. In the context of the review referred to in paragraph 1 of this Article, the Parties shall assess any obstacles to establishment that have been encountered and shall undertake negotiations to address such obstacles, with a view to deepening the provisions of this Chapter and to including investment protection provisions and investor-to-state dispute settlement procedures.
Article 86. Other Agreements
Nothing in this Chapter shall be taken to limit the rights of investors of the Parties to benefit from any more favourable treatment provided for in any existing or future international agreement relating to investment to which the United Kingdom and Ukraine are parties.
Article 87. Standard of Treatment for Branches and Representative Offices
1. The provisions of Article 84 of this Agreement do not preclude the application by a Party of particular rules concerning the establishment and operation in its territory of branches and representative offices of legal persons of the other Party not incorporated in the territory of the first Party, which are justified by legal or technical differences between such branches and representative offices as compared to branches and representative offices of companies incorporated in its territory or, as regards financial services, for prudential reasons.
2. The difference in treatment shall not go beyond what is strictly necessary as a result of such legal or technical differences or, as regards financial services, for prudential reasons.
Section 3. CROSS-BORDER SUPPLY OF SERVICES
Article 88. Scope
This Section applies to measures of the Parties affecting the cross-border supply of all services sectors with the exception of:
(a) audio-visual services (16);
(b) national maritime cabotage (17); and
(c) domestic and international air transport services (18), whether scheduled or unscheduled, and services directly related to the exercise of traffic rights other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) CRS services;
(iv) ground handling services;
(v) airport operation services.
Article 89. Market Access
1. With respect to market access through the cross-border supply of services, each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for in the specific commitments contained in Annexes XII-B and XII-E to this Agreement.
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annex XII-B and XXI-E to this Agreement, are defined as:
(a) limitations on the number of services suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the tequirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in the terms of designated numerical units in the form of quotas or the requirement of an economic needs test.
Article 90. National Treatment
1. In Inthe sectors where market access commitments are inscribed in Annexes XII- B and XI-E to this Agreement, and subject to any conditions and qualifications set out therein, each Party shall grant to services and service suppliers of the other Party, in respect of all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like service and services suppliers.
2. A Party may meet the requirement of paragraph 1 of this Article by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable ifit modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed in such a way as to require any Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.
Article 91. Lists of Commitments
1. The sectors liberalised by each of the Parties pursuant to this Chapter and, by means of reservations, the market access and national treatment limitations applicable to services and services suppliers of the other Party in those sectors are set out in lists of commitments contained in Annexes XII-B and XII-E to this Agreement.
2. Without prejudice to the Parties' rights and obligations as they exist or may arise under the Council of Europe's Convention on Transfrontier Television of 1989 and European Convention on Cinematographic Co-Production of 1992, lists of commitments in Annexes XII-B and XII-E to this Agreement do not include commitments on audio-visual services.
Article 92. Review
With a view to progressive liberalisation of the cross-border supply of services between the Parties, the Trade Committee shall regularly review the lists of commitments referred to in Article 91 of this Agreement. This review shall take into account the resultant impact on the elimination of remaining obstacles to cross- border supply of services between the Parties.
Section 4. TEMPORARY PRESENCE OF NATURAL PERSONS FOR BUSINESS PURPOSES
Article 93. Scope
This Section applies to measures of the Parties concerning the entry into and temporary stay (19) in their territory of categories of natural persons providing services as defined in Article 82(17) to (21) of this Agreement.
Article 94. Key Personnel
1. A legal person of the United Kingdom or a legal person of Ukraine shall be entitled to employ, or have employed by one of its subsidiaries, branches and representative offices established in the territory of Ukraine or of the United Kingdom, respectively, in accordance with the legislation in force in the host country of establishment, employees who are nationals of the United Kingdom and of Ukraine, respectively, provided that such employees are key personnel as defined in Article 82 of this Agreement who are employed exclusively by legal persons, subsidiaries, branches and representative offices. The residence and work permits of such employees shall only cover the period of such employment. The entry and temporary stay of such employees shall be for a period of up to three years.
2. The entry into and temporary presence within the territory of the United Kingdom or Ukraine of natural persons of Ukraine and of the United Kingdom, respectively, shall be permitted when these natural persons are representatives of legal persons and are business visitors within the meaning of Article 82(17)(a) of this Agreement. Notwithstanding paragraph 1 of this Article, the entry and temporary stay of business visitors shall be for a period of up to 90 days in any 12-month period.
Article 95. Graduate Trainees
A legal person of the United Kingdom or a legal person of Ukraine shall be entitled to employ, or have employed by one of its subsidiaries, branches and representative offices established in the territory of Ukraine or of the United Kingdom, respectively, in accordance with the legislation in force in the host country of establishment, graduate trainees who are nationals of the United Kingdom and of Ukraine, respectively, provided that they are employed exclusively by legal persons, subsidiaries, branches and representative offices. The temporary entry and stay of graduate trainees shall be for a period of up to one year.
Article 96. Business Services Sellers
Each Party shall allow the temporary entry and stay of business services sellers for a period of up to 90 days in any 12-month period.
Article 97. Contractual Services Suppliers
1. the Parties Reaffirm Their Respective Obligations Arising from Their Commitments Under the General Agreement on Trade In Services of 1994 (hereinafter referred to as "GATS";) as Regards the Entry and Temporary Stay of Contractual Services Suppliers.
2. For every sector listed below, each Party shall allow the supply of services in their territory by contractual services suppliers of the other Party, subject to the conditions specified in paragraph 3 of this Article and in Annexes XII-C and XII-F to this Agreement on reservations on contractual service suppliers and independent professionals:
(a) Legal Services
(b) Accounting and Bookkeeping Services
(c) Taxation Advisory Services
(d) Architectural services, urban planning and landscape architectural services
(e) Engineering services, integrated engineering services
(f) Computer and related services
(g) Research and development services
(h) Advertising
(i) Management consulting services
(j) Services related to management consulting
(k) Technical testing and analysis services
(l) Related scientific and technical consulting services
(m) Maintenance and repair of equipment in the context of an after-sales or after-lease services contract
(n) Translation services
(o) Site investigation work
(p) Environmental services
(q) Travel agencies and tour operator services
(r) Entertainment services
3. The commitments undertaken by the Parties are subject to the following conditions:
(a) The natural persons must be engaged in the supply of a service on a temporary basis as employees of a juridical person, which has obtained a service contract not exceeding twelve months;
(b) The natural persons entering the other Party should be offering such services as employees of the juridical person supplying the services for at least the year immediately preceding the date of submission of an application for entry into the other Party. In addition, the natural persons must possess, at the date of submission of an application for entry into the other Party, at least three years professional experience (20) in the sector of activity which is the subject of the contract;
(c) The natural persons entering the other Party must possess:
(i) a university degree or a qualification demonstrating knowledge of an equivalent level (21); and
(ii) professional qualifications where this is required to exercise an activity pursuant to the laws, regulations or legal requirements of the Party where the service is supplied.
(d) The natural person shall not receive remuneration for the provision of services in the territory of the other Party other than the remuneration paid by the legal person employing the natural person;
(e) The entry and temporary stay of natural persons within the Party concerned shall be for a cumulative period of not more than six months in any twelve-month period or for the duration of the contract, whichever is less;
(f) Access accorded under the provisions of this Article relates only to the service activity, which is the subject of the contract and does not confer entitlement to exercise the professional title of the Party where the service is provided;
(g) The number of persons covered by the service contract shall not be larger than necessary to fulfil the contract, as it may be requested by the laws, regulations or other legal requirements of the Party where the service is supplied;
(h) Other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, as specified in Annexes XII- C and XII-F to this Agreement on reservations on contractual service suppliers and independent professionals.
Article 98. Independent Professionals
1. The Parties reaffirm their respective obligations arising from their commitments under the GATS as regards the entry and temporary stay of independent professionals.
2. For every sector listed below, the Parties shall allow the supply of services in their territory by independent professionals of the other Party, subject to the conditions specified in paragraph 3 of this Article and in Annexes XII-C and XII-F to this Agreement on reservations on contractual service suppliers and independent professionals.
(a) Legal services
(b) Architectural services, urban planning and landscape architecture
(c) Engineering and integrated engineering services
(d) Computer and related services
(e) Management consulting services and services related to management consulting
(f) Translation services
3. The commitments undertaken by the Parties are subject to the following conditions:
(a) The natural persons must be engaged in the supply of a service on a temporary basis as self-employed persons established in the other Party and must have obtained a service contract for a period not exceeding 12 months;
(b) The natural persons entering the other Party must possess, at the date of submission of an application for entry into the other Party, at least six years professional experience in the sector of activity which is the subject of the contract;
(c) The natural persons entering the other Party must possess:
(i) a university degree or a qualification demonstrating knowledge of an equivalent level (22); and
(ii) professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other legal requirements of the Party where the service is supplied.
(d) The entry and temporary stay of natural persons within the Party concerned shall be for a cumulative period of not more than six months in any twelve-month period or for the duration of the contract, whichever is less.
(e) Access accorded under the provisions of this Article relates only to the service activity which is the subject of the contract; it does not confer entitlement to use the professional title of the Party where the service is provided;
(f) Other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, which are specified in Annexes XII-C and XII–F to this Agreement on reservations on contractual service suppliers and independent professionals.
Section 5. REGULATORY FRAMEWORK
Subsection 1. DOMESTIC REGULATION
Article 99. Scope and Definitions
1. The following disciplines apply to measures by the Parties relating to licensing that affect:
(a) cross-border supply of services;
(b) establishment in their territory of legal and natural persons defined in Article 82 of this Agreement; or
(c) temporary stay in their territory of categories of natural persons defined in Article 82(17) to (21) of this Agreement.
2. In the case of cross-border supply of services, these disciplines shall only apply to sectors for which the Party has undertaken specific commitments and to the extent that these specific commitments apply. In the case of establishment, these disciplines shall not apply to sectors to the extent that a reservation is listed in accordance with Annexes XII-A and XII-D to this Agreement. In the case of temporary stay of natural persons, these disciplines shall not apply to sectors for which a reservation is listed in accordance with Annexes XII-C and XII-F to this Agreement.
3. These disciplines do not apply to measures to the extent that they constitute limitations subject to scheduling under Articles 84, 89 and 90 of this Agreement.
4. For the purposes of this Section:
(a) "Licensing" means the process through which a service supplier or an investor is in effect required to take steps in order to obtain from a competent authority a decision concerning the authorisation to supply a service, including through establishment, or concerning the authorisation to establish in an economic activity other than services, including a decision to amend or renew such authorisation.
(b) âCompetent authority" means any central, regional or local government and authority or non-governmental body in the exercise of powers delegated by central or regional or local governments or authorities, which takes a decision concerning licensing.
(c) "Licensing procedures" shall mean the procedures to be followed as a part of licensing. ARTICLE 100 Conditions for Licensing
1. Licensing shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.
2. The criteria referred to in paragraph 1 of this Article shall be: (a) proportionate to a legitimate public policy objective; (b) clear and unambiguous; (c) objective; (d) pre-established; (e) made public in advance; () âtransparent and accessible.
3. A licence shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining a licence have been met.