1. This Chapter applies to measures affecting the movement of natural persons of a Party who enter into the territory of the other Party, where such persons are:
(a) service sellers of the former Party;
(b) service suppliers of the former Party;
(c) sellers of goods of the former Party;
(d) investors of the former Party in respect of their investments in the territory of the latter Party; or
(e) employed by an investor of the former Party in respect of an investment of that investor in the territory of the latter Party.
2. For the purposes of this Chapter, the following definitions shall apply:
(a) natural person of a Party is as defined in Chapter Six (Trade in Services) and specifically covers only a national of a Party as described in paragraph 1;
(b) immigration visa means an employment visa or business visa granting a natural person of the other Party the right to reside or work or remain in the territory of host country, without the intent to reside permanently;
(c) temporary entry means entry by a business visitor, an intra-corporate transferee, or a professional as the case may be without the intent to establish permanent residence and for the purpose of engaging in activities which are clearly related to their respective business purposes;
(d) service seller means a natural person of a Party who is a representative of a service supplier of that Party and is seeking temporary entry into the other Party for the purpose of negotiating the sale of services for that service supplier, where such a representative will not be engaged in making direct sales to the general public or in supplying services directly;
(e) seller of goods means any natural person of a Party engaged in the manufacture, production, supply or distribution of industrial or agricultural goods seeking temporary entry into the other Party in order to sell goods to, or to enter into a distribution or retailing arrangement with a natural person or an enterprise of the other Party engaged in an industrial or commercial activities, provided, however, that such person shall not sell goods directly to the general public of the other Party;
(f) professional means a natural person of a Party who is employed in a specialised occupation that requires theoretical and practical application of specialised knowledge and;
(i) attainment of a post secondary degree in the specialty requiring three or more years of study (or the equivalent of such a degree) as a minimum of entry into the occupation. Such degrees include Bachelors' degree, Masters' degree and Doctoral degree conferred by institutions in Korea or India; and
(ii) in the case of regulated professions, registration, licence or credentials, as specified by the relevant authorities of a Party, if applicable, to engage in a business activity;
(g) business visitor means a natural person of either Party who is:
(i) a service seller who enters the territory of the other Party for the sale of services or entering into agreements for such sale for that services supplier;
(ii) seeking temporary entry for negotiating sale of goods, where such negotiations do not involve direct sales to the general public; or
(iii) an investor of a Party or an employee of an investor, who is a manager, executive or specialist as defined under subparagraph (h), seeking temporary entry to establish an investment;
(h) intra-corporate transferee means an employee of a service supplier, juridical person, as defined in Chapter Six (Trade in Services), an investor or enterprise of a Party established in the territory of the other Party referred to below as an organisation, through a branch, subsidiary or affiliate, who has been so employed for a period of not less than one year immediately preceding the date of the application for temporary entry, and who is a manager, executive or specialist as defined below:
(i) manager means a natural person within an organisation who primarily directs the organisation or a department or sub-division of the organisation, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire or take other personnel actions such as promotion or leave authorisation, and exercises discretionary authority over day- to-day operations. This does not include a first-line supervisor, unless the employees supervised are professionals, nor does this include an employee who primarily performs tasks necessary for the provision of the service or operation of an investment. However, this does not prevent the manager, in the course of executing his or her duties as described above, from secondarily performing tasks necessary for the provision of the service or operation of an investment;
(ii) executive means a natural person within an 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 primarily perform tasks related to the actual provision of the service or the operation of an investment. However, this does not prevent the executive, in the course of executing his duties as described above, from secondarily performing tasks necessary for the provision of the service or operation of an investment; or
(iii) specialist means a natural person within an organisation who possesses knowledge at an advanced level of expertise and who possesses relevant knowledge of the organisationâs service, research, equipment, techniques or management. A specialist may include, but is not limited to, members of a licenced profession;
(i) contractual service supplier means a person possessing appropriate educational and other qualifications relevant to the service to be provided who is engaged in the supply of a contracted service as an employee of a juridical person that has no commercial presence in the other Party, where the juridical person obtains a service contract from a juridical person of the other Party. The contractual service supplier should have been an employee of the juridical person for a period of not less than one year immediately preceding the date of application for admission; and
(j) independent professional means a self-employed person possessing appropriate educational and other qualifications relevant to the service to be provided who is engaged in the supply of a contracted service, where the professional has a service contract from a person of the other Party. (1)
Article 8.3. GRANT OF TEMPORARY ENTRY
1. Each Party shall grant temporary entry to natural persons of the other Party, who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this Chapter.
2. Each Party shall process expeditiously applications for temporary entry from natural persons of the other Party, including requests for further extensions, particularly applications from members of professions for which mutual recognition arrangements have been concluded pursuant to Article 6.8 (Recognition). Each Party shall notify the applicant for temporary entry, either directly or through his or her prospective employers, of the outcome of final determination, including the period of stay and other conditions.
3. Natural persons of either Party who are granted temporary entry into the territory of the other Party shall not be required to make contributions to social security funds in the host country. In such cases, they will not be eligible for social security benefits in the other Party for the duration of the stay.
4. A Party may refuse to issue an immigration visa authorising employment to a business person where the temporary entry of that person might affect adversely:
(a) the settlement of any labour dispute that is in progress at the place or intended place of employment; or
(b) the employment of any person who is involved in such dispute.
5. Business visitors
(a) Korea shall grant temporary entry to a business visitor for a period of not more than 90 days; and
(b) India shall grant temporary entry to a business visitor for a period of not more than 180 days or for longer duration for a maximum period up to five years with 180 days stay stipulation on a single visit; and
Such a business visitors' visa under subparagraphs (a) and (b) shall be granted, provided that the business visitor:
(i) complies with immigration measures applicable to temporary entry;
(ii) presents proof of nationality of the other Party;
(iii) is an employee of a juridical person not already having commercial presence in the host country; and
(iv) does not receive any remuneration from a source located within the visiting Party;
Neither Party may require labour market test as a condition for temporary entry or impose numerical restriction relating to temporary entry for business visitors.
6. Intra-Corporate Transferees
Each Party shall grant temporary entry to an intra-corporate transferee of the other Party, who otherwise complies with applicable immigration measures, for an initial period of up to two years for Korea and up to one year for India, or the period of the contract, whichever is less.
The period of stay may be extended:
(a) for Korea, provided the conditions on which it is based remain in effect; and
(b) for India, on year to year basis for a total term not exceeding five years if the above conditions are still met by the applicants;
Neither Party may require labour market test as a condition for temporary entry or impose numerical restriction relating to temporary entry for intra-corporate transferees.
7. Professionals
Each Party shall grant temporary entry to a professional of the other Party who is seeking to provide services as a contractual service supplier or an independent professional in a profession as set out in Annex 8-A, if that natural person otherwise complies with immigration measures applicable to temporary entry, for an initial period of up to one year or the period of the contract, whichever is less, on the presentation of:
(a) proof of nationality of the other Party;
(b) documentation demonstrating that he or she will be so engaged and describing the purpose of entry, including the letter of contract from the entity engaging the services of the natural person in the host Party; and
(c) documentation demonstrating the attainment of the relevant minimum educational requirements or alternative credentials.
Article 8.4. EMPLOYMENT OF SPOUSES AND DEPENDANTS
Each Party shall grant temporary entry and provide a work permit or authorisation to a spouse and a dependant of a intra-corporate transferee, contractual service supplier or independent professional qualifying for temporary entry, if the spouse or the dependant otherwise complies with immigration measures applicable to temporary entry and meets the relevant employment qualifications.
Article 8.5. REGULATORY TRANSPARENCY
1. Each Party shall maintain or establish contact points or other mechanisms to respond to inquiries from interested persons regarding regulations affecting the temporary entry of natural persons. These contact points shall also be the authorised points allowing business persons to report and seek clarifications, if any, on instances where they have encountered special difficulties in the process of seeking temporary entry in the other Party.
2. To the extent possible, each Party shall allow reasonable time between publication of final regulations affecting the temporary entry of natural persons and their effective date, and such notification to the other Party can be made electronically available.
3. Prior to the date of entry into force of this Agreement, the Parties shall exchange information on current procedures relating to the processing of applications for temporary entry.
Article 8.6. RESOLUTION OF PROBLEMS
The relevant authorities of both Parties shall endeavour to favourably resolve any specific or general problems, (within the framework of their laws, regulations and other similar measures governing the temporary entry of natural persons) which may arise from the implementation and administration of this Chapter.
Article 8.7. DISPUTE SETTLEMENT
1. A Party may not initiate proceedings under Chapter Fourteen (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless,
(a) the matter involves a breach of any of the provisions relating to the right of entry accruing under this Chapter;
(b) the matter involves a pattern of practice; and
(c) its natural persons affected by the pattern of practice have exhausted the available domestic administrative remedies of the other Party.
2. The remedies referred to in paragraph 1(c) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of proceedings for domestic administrative remedies including proceedings by way of review, and the failure to issue a determination is not attributable to the delay caused by the natural person.
Article 8.8. RESERVATIONS
The commitments made by each party under this Chapter shall be subject to any terms, conditions, reservations or limitations it has scheduled in respect of each service sector under Chapter Six (Trade in Services).
Chapter NINE. AUDIO-VISUAL CO-PRODUCTION
Article 9. GENERAL PRINCIPLE
1. Recognising that audio visual, including film, animation, broadcasting programme, game (1) and visual effects, co-productions can significantly contribute to the development of the audio visual industry and to an intensification of cultural and economic exchange between them, the Parties agree to consider and negotiate co-production agreements in the audio visual sector.
2. The co-production agreement in accordance with paragraph 1 is an integral part of this Agreement. The detailed co-production agreement would be negotiated between the competent authorities of the Parties, which are the Ministry of Information and Broadcasting for India and the Ministry of Culture, Sports and Tourism and the Korea Communications Commission for Korea.
Article 9.2. SCOPE
The scope of the co-production agreement under Article 9.1.2 includes film, broadcasting programme, game, visual effects and animation for exploitation in theatres and on television, videocassettes, videodisc, digital device (CD-ROM, DVD, VOD, mobile phone, etc.) or by any other form of distribution. New forms of audio visual production will be included in the co-production agreement through the exchange of notes between the Parties.
Article 9.3. BENEFITS
Co-produced projects in compliance with the co-production agreement shall be deemed to be national productions in the territory of each Party and shall thus be fully entitled to all the benefits including government support which are accorded under the applicable laws and regulations of each Party.
Article 9.4. AMENDMENT
The amendment of the co-production agreement can be done by the mutual consent of the Parties.
Chapter TEN. Investment
Section A. Definitions
Article 10.1. DEFINITIONS
For the purposes of this Chapter:
disputing investor means an investor that makes a claim under Section C;
disputing Party means a Party against which a claim is made under Section C;
enterprise means any entity constituted or organised under applicable law, whether or not for profit, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, sole proprietorship, joint venture or other association and a branch of an enterprise;
freely usable currency means any currency designated as such by the International Monetary Fund and any amendments thereto;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington, 18 March 1965, as may be amended;
investment means every kind of asset that an investor owns or controls, directly or indirectly, and that 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;
(a) Forms that an investment may take include, but are not limited to:
(i) an enterprise (1);
(ii) shares, stocks and other forms of equity participation of an enterprise;
(iii) bonds, debentures, loans, and other debt instruments of an enterprise;
(iv) rights under contracts, including turnkey, construction, management, production, concession or revenue-sharing contracts;
(v) claims to money established and maintained in connection with the conduct of commercial activities;
(vi) intellectual property rights;
(vii) rights conferred pursuant to domestic law or contract, such as licences, authorisations and permits, except for those that do not create any rights protected by domestic law; and
(viii) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens and pledges;
For subparagraph (a), returns that are invested in accordance with prevailing law shall be treated as investments and any alteration in the form in which assets are invested or reinvested shall not affect their character as investments.
(b) Investment does not mean:
(i) claims to money that arise solely from:
(A) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party; or
(B) the extension of credit in connection with a commercial transaction, such as trade financing; or
(ii) any other claims to money, that do not involve the kinds of interests set out in subparagraphs (a)(i) through (viii);
returns means monetary returns yielded by or derived from an investment including, but not limited to, any profits, interests, capital gains, dividends, royalties, fees, or payments in connection with intellectual property rights;
investment of an investor of a Party means an investment owned or controlled, directly or indirectly, by an investor of such Party;
investor of a Party means a Party or a national or an enterprise of a Party that is seeking to make, is making, or has made, investments in the territory of the other Party;
enterprise of a Party means an enterprise constituted or organised under the law of a Party, and its branch located in the territory of a Party and carrying out substantial business activities there;
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law, 1976.
Section B. Investment
Article 10.2. SCOPE AND COVERAGE
1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
(a) Investors of the other Party;
(b) investments of investors of the other Party in the territory of the former Party; and
(c) with respect to Article 10.16, all investments in the territory of the former Party.
2. This Chapter applies to the existing investments on the date of entry into force of this Agreement, as well as to the investments made or acquired after this date.
3. The provisions of this Chapter do not bind a Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement for that Party.
4. In the event of any inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency.
5. A requirement by a Party that a service provider of the other Party post a bond or other form of financial security as a condition of the cross-border supply of services does not of itself make this Chapter applicable to the provision of that cross-border service. This Chapter applies to that Party's treatment of the posted bond or financial security.
6. This Chapter shall not apply to subsidies or grants provided by a Party or to any conditions attached to the receipt or continued receipt of such subsidies or grants except for Articles 10.5 and 10.21, whether or not such subsidies or grants are offered exclusively to domestic investors and investments.
7. This Chapter shall not apply to measures adopted or maintained by a Party with respect to financial services.
8. This Chapter shall not apply to any taxation measures.
Article 10.3. NATIONAL TREATMENT
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments of its own investors in its territory with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. The treatment to be accorded by a Party under paragraphs 1 and 2 means, with respect to a regional or local government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional or local government to investors, and to investments of investors, of the Party of which it forms a part.
Article 10.4. MINIMUM STANDARD OF TREATMENT
1. Each Party shall accord to an investment of an investor of the other Party in its territory "fair and equitable treatment" and "full protection and security". 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 by the customary international law minimum standard of treatment of aliens.
2. The obligation in paragraph 1 includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process.
3. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 10.5. PERFORMANCE REQUIREMENTS
1, Neither Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct, operation or sale or other disposition of an investment of an investor of the other Party in its territory:
(a) to export a given level or percentage of goods or services;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from natural or legal persons 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 investments of that investor;
(e) to restrict sales of goods or services in its territory that an investment of that investor produces or provides by relating such sales to the volume or value of its exports or foreign exchange earnings;
(f) to transfer technology, a production process or other proprietary knowledge to a natural or legal person or any other entity in its territory, except when the requirement
(i) is imposed or enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws, or
(ii) concerns the transfer of intellectual property and is undertaken in a manner not inconsistent with the TRIPS Agreement; or
(g) to supply exclusively from the territory of the Party the goods that such investment produces or the services that it supplies to a specific regional market or to the world market.
2. Paragraph 1 does not preclude either Party from conditioning the receipt or continued receipt of an advantage, in connection with investment and business activities in its territory of an investor of the other Party, on compliance with any of the requirements set forth in paragraphs 1 (f) and (g).
3. Nothing in this Article shall be construed so as to derogate from the rights and obligations of the Parties under the Agreement on Trade-Related Investment Measures, contained in Annex 1A of the Marrakech Agreement Establishing the World Trade Organization.
Article 10.6. SENIOR MANAGEMENT AND BOARDS OF DIRECTORS
1. Neither Party may require that an investor of the other Party appoint to senior management positions individuals of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of the Party that is an investment of an investor of the other Party, 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.
Article 10.7. TRANSPARENCY
1. Each Party shall promptly publish, or otherwise make publicly available, its laws, regulations, administrative rulings and judicial decisions of general application as well as international agreements which pertain to or affect any matter covered by this Chapter.