Obligations Concerned: National Treatment (Article 11.3) Senior Management and Boards of Directors (Article 11.10)
Source of Measure: Qantas Sale Act 1992
Description: Investment
Total foreign ownership of Qantas Airways Ltd. is restricted to a maximum of 49 per cent in aggregate, with individual foreign holdings limited to 25 per cent and aggregate holdings by foreign airlines to 35 per cent. In addition:
- the head office of Qantas must always be located in Australia;
- the majority of Qantas' operational facilities must be located in Australia;
- at all times, at least two thirds of the directors of Qantas must be Australian citizens;
- at a meeting of the board of directors of Qantas, the director presiding at the meeting (however described) roust be an Australian citizen; and
- Qantas is prohibited from taking any action to become incorporated outside Australia.
ANNEX I. Schedule of the united states
Sector: Atomic Energy
Obligations Concerned: National Treatment (Article 11.3)
Level of Government: Central
Measures: Atomic Energy Act of 1954, 42 U.S.C. 8§ 2011 et seq.
Description: Investment
A license issued by the United States Nuclear Regulatory Commission is required for any person in the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, use, import, or export any nuclear "utilization or production facilities" for commercial or industrial purposes. Such a license may not be issued to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government (42 U.S.C. § 2133(d)). A license issued by the United States Nuclear Regulatory Commission is also required for nuclear "utilization and production facilities," for use in medical therapy, or for research and development activities. The issuance of such a license to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government is also prohibited (42 U.S.C. § 2134(d)).
Sector: Business Services
Obligations Concerned: National Treatment (Article 10.2) Local Presence (Article 10.5)
Level of Government: Central
Measures: Export Trading Company Act of 1982, 15 U.S.C. §§ 4011-4021 15 CFR. Part 325
Description: Cross-Border Trade in Services
Title II of the Export Trading Company Act of 1982 authorizes the Secretary of Commerce to issue "certificates of review" with respect to export conduct. The Act provides for the issuance of a certificate of review where the Secretary determines, and the Attorney General concurs, that the export conduct specified in an application will not have the anticompetitive effects proscribed by the Act. A certificate of review limits the liability under federal and state antitrust laws in engaging in the export conduct certified.
Only a "person" as defined by the Act can apply for a certificate of review. "Person" means "an individual who is a resident of the United States; a partnership that is created under and exists pursuant to the laws of any State or of the United States; a State or local government entity; a corporation, whether organized as a profit or nonprofit corporation, that is created under and exists pursuant to the laws of any State or of the United States; or any association or combination, by contract or other arrangement, between such persons."
A foreign national or enterprise may receive the protection provided by a certificate of review by becoming a "member" of a qualified applicant. The regulations define "member" to mean "an entity (U.S. or foreign) that is seeking protection under the certificate with the applicant. A member may be a partner in a partnership or a joint venture; a shareholder of a corporation; or a participant in an association, cooperative, or other form of profit or nonprofit organization or relationship, by contract or other arrangement."
Sector: Business Services
Obligations Concerned:National Treatment (Article 10.2) Local Presence (Article 10.5)
Level of Government: Central
Measures: Export Administration Act of 1979, as amended, 50 U.S.C. app. 2401-2420. International Emergency Economic Powers Act, 50 U.S.C. 8§ 1701-1706. Export Administration Regulations, 15 C.F R. Parts 730 through 774.
Description: Cross-Border Trade in Services
With some limited exceptions, exports and reexports of commodities, software, and technology subject to the Export Administration Regulations require a license from the Bureau of Industry and Security, U.S. Department of Commerce (BIS). Certain activities of U.S. persons, wherever located, also tequire a license from BIS. An application for a license must be made by a person in the United States.
In addition, release of controlled technology to a foreign national in the United States is deemed to be an export to the home country of the foreign national and requires the same written authorization from BIS as an export from the territory of the United States.
Sector: Mining
Obligations Concerned: National Treatment (Article 11.3 ) Most-Favored-Nation Treatment (Article 11.4 )
Level of Government: Central
Measures: Mineral Lands Leasing Act of 1920, 30 U.S.C. Chapter 3A 10 USC. § 7435
Description: Investment
Under the Mineral Lands Leasing Act of 1920, aliens and foreign corporations may not acquire rights-of-way for oil or gas pipelines, or pipelines carrying products refined from oil and gas, across on-shore federal lands or acquire leases or interests in certain minerals on on-shore federal lands, such as coal or oil. Non-U.S. citizens may own a 100 percent interest in a domestic corporation that acquires a right-of-way for oil or gas pipelines across on-shore federal lands, or that acquires a lease to develop mineral resources on on-shore federal lands, unless the foreign investor's home country denies similar or like privileges for the mineral or access in question to U.S. citizens or corporations, as compared with the privileges it accords to its own citizens or corporations or to the citizens or corporations of other countries (30 U.S.C. §§ 181, 185(a)).
Nationalization is not considered to be denial of similar or like privileges.
Foreign citizens, or corporations controlled by them, are restricted from obtaining access to federal leases on Naval Petroleum Reserves if the laws, customs, or regulations of their country deny the privilege of leasing public lands to citizens or corporations of the United States (10 U.S.C. § 7435).
Sector: All Sectors
Obligations Concerned: National Treatment (Article 11.3 ) Most-Favored-Nation Treatment (Article 11.4 )
Level of Government: Central
Measures: 22 USC. §§ 2194 and 2198(c)
Description: Investment
The Overseas Private Investment Corporation insurance and loan guarantees are not available to certain aliens, foreign enterprises, or foreign-controlled domestic enterprises.
Sector: Air Transportation
Obligations Concerned: National Treatment (Article 11.3) Most-Favored-Nation Treatment (Article 11.4) Senior Management and Boards of Directors (Article 11.10)
Level of Government: Central
Measures: 49 USC. Subtitle VII, Aviation Programs 14CF.R.Part 297 (foreign freight forwarders); 14 CFR. Part 380, Subpart E (registration of foreign (passenger) charter operators)
Description: Investment
Only air carriers that are "citizens of the United States" may operate aircraft in domestic air service (cabotage) and may provide international scheduled and non-scheduled air service as US. air carriers.
US. citizens also have blanket authority to engage in indirect air transportation activities (air freight forwarding and passenger charter activities other than as actual operators of the aircraft). In order to conduct such activities, non-US. citizens must obtain authority from the Department of Transportation. Applications for such authority may be rejected for reasons relating to the failure of effective reciprocity, or if the Department of Transportation finds that it is in the public interest to do so.
Under 49 U.S.C. § 40102(a)(15), a citizen of the United States" means: an individual who is a U.S. citizen; ora partnership in which each member is a US. citizen; ora US. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of US. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by US. citizens.
Sector: Air Transportation
Obligations Concerned: National Treatment (Articles 10.2 and 11.3) Most-Favored-Nation Treatment (Article 10.3 and 11.4) Local Presence (Article 10.5.) Senior Management and Boards of Directors (Article 11.10)
Level of Government: Central
Measures: 49 USC.., Subtitle VI, Aviation Programs 49 USC. § 41703 14CFR. Part 375
Description: Cross-Border Trade in Services
1. Authorization from the Department of Transportation is required for the provision of specialty air services in the territory of the United States.*
Investment
2. "Foreign civil aircraft" require authority from the Department of Transportation to conduct specialty air services in the territory of the United States. "Foreign civil aircraft" are aircraft of foreign registry or aircraft of U.S. registry that are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States (14 CFR. § 375.1). Under 49 U.S.C.a citizen of the United States means an individual who is a U.S. citizen or a partnership in which each member is a U.S. citizen or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are US. citizens, which is under the actual control of U.S. citizens, and in which at least seventy- five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.
*A person of Australia will be able to obtain such an authorization given the application of Chapter Ten (Cross- Border Trade in Services) to specialty air services.
Sector: Transportation Services - Customs Brokers
Obligations Concerned: National Treatment (Articles 10.2 and 11.3) Local Presence (Article 10.5)
Level of Government: Central
Measures: 19 U.S. § 1641(b)
Description: Cross-Border Trade in Services and Investment
A customs broker's license is required to conduct customs business on behalf of another person. Only U.S. citizens may obtain such a license. A corporation, association, or partnership established under the law of any state may receive a customs broker's license if at least one officer of the corporation or association, or one member of the partnership, holds a valid customs broker's license.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 11.3 ) Most-Favored-Nation Treatment (Article 11.4)
Level of Government: Central
Measures: Securities Act of 1933, 15 USC. §§ 77C(b), 77£, 77g, 77h, 77), and. 77s(a) 17 CFR. §§ 230.251 and 230.405 Securities Exchange Act of 1934, 15 USC. §§ 781, 78m, 780(d), and 78w(a) 17 CFR. § 240.12b-2
Description: Investment
Foreign firms, except for certain Canadian issuers, may not use the small business registration forms under the Securities Act of 1933 to register public offerings of securities or the small business registration forms under the Securities Exchange Act of 1934 to register a class of securities or file annual reports.
Sector: Communications — Radiocommunications
Obligations Concerned: National Treatment (Article 11.3)
Level of Government: Central
Measures: 47 USC. § 310 Foreign Participation Order 12 FCC Red 23841 (1997)
Description: Investment
The United States reserves the right to restrict ownership of radio licenses in accordance with the above statutory and regulatory provisions. Radiocommunications consists of all communications by radio, including broadcasting
Sector: Professional Services - Patent Attorneys, Patent Agents, and Other Practice before the Patent and Trademark Office
Obligations Concerned: National Treatment (Article 10.2) Most-Favored-Nation Treatment (Article 10.3) Local Presence (Article 10.5)
Level of Government: Central
Measures: 35 USC. Chapter 3 (practice before the U.S. Patent and Trademark Office) 37 CFR. Part 10 (representation of others before the U.S. Patent and Trademark Office)
Description: Cross-Border Trade in Services
As a condition to be registered to practice for others before the US. Patent and Trademark Office (USPTO):
(a) a patent attorney must be a US. citizen or an alien lawfully residing in the United States 87 CFR. § 10.6(a));
(b) a patent agent must be a US. citizen, an alien lawfully residing in the United States, or a non-resident who is tegistered to practice in a country that permits patent agents registered to practice before the USPTO to practice in that country; the latter is permitted to practice for the limited purpose of presenting and prosecuting patent applications of applicants located in the country in which he or she resides (37 CFR. §10.6(c)); and
(c) a practitioner in trademark and non-patent cases must be an attorney licensed in the United States, a "grandfathered" agent, an attorney licensed to practice in a country that accords equivalent treatment to attorneys licensed in the United States, or an agent registered to practice in such a country; the latter two are permitted to practice for the limited purpose of representing parties located in the country in which he or she resides 37 CFR. § 10.14(a)-(c)).
Sector: All Sectors
Obligations Concerned: National Treatment (Articles 10.2 and 11.3) Most-Favored-Nation Treatment (Articles 10.3 and 11.4) Local Presence (Article 10.5) Performance Requirements (Article 11.9) Senior Management and Boards of Directors (Article 11.10)
Level of Government: Regional
Measures: All existing non-conforming measures of all states of the United States, the District of Columbia, and Puerto Rico
Description: Cross-Border Trade in Services and Investment
ANNEX II.
1. The Schedule of a Party to this Annex sets out, pursuant to Articles 10.6 (Non- Conforming Measures) and 11.13 (Non-Conforming Measures), the specific sectors, sub-sectors, or activities for which that Party may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 10.2 (National Treatment) or 11.3 (National Treatment);
(b) Article 10.3 (Most-Favoured-Nation Treatment) or 11.4 (Most-Favoured-Nation Treatment);
(c) Article 10.4 (Market Access);
(d) Article 10.5 (Local Presence);
(e) Article 11.9 (Performance Requirements); or
(f) Article 11.10 (Senior Management and Boards of Directors).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Obligations Concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Articles 10.6.2 and Article 11.13.2, do not apply to the sectors, sub- sectors, or activities listed in the entry;
(c) Description sets out the scope of the sector, sub-sector, or activities covered by the entry; and
(d) Existing Measures identifies, for transparency purposes, existing measures that apply to the sector, sub-sector, or activities covered by the entry.
3. In accordance with Articles 10.6.2 and 11.13.2, the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the sectors, sub-sectors, and activities identified in the Description element of that entry.
ANNEX II. Schedule of australia
Sector: All
Obligations Concerned: National Treatment (Articles 10.2 and 11.3) Market Access (Article 10.4) Performance Requirements (Article 11.9) Local Presence (Article 10.5) Senior Management and Boards of Directors (Article 11.10)
Description: Cross-Border Trade in Services and Investment
Australia reserves the right to adopt or maintain any measure according preferences to any indigenous person or organisation or providing for the favourable treatment of any indigenous person or organisation in relation to the acquisition, establishment, or operation of any commercial or industrial undertaking in the service sector.
Australia reserves the right to adopt or maintain any measure with respect to investment that accords preferences to any indigenous person or organisation or provides for the favourable treatment of any indigenous person or organisation.
For the purpose of this entry, "indigenous person" means a person of the Aboriginal race of Australia or a descendent of an indigenous inhabitant of the Torres Strait Islands.
Existing Measures: Legislation and ministerial statements at all levels of government including Australia's foreign investment policy and the Native Title Act 1993.
Sector: All
Obligations Concerned: Market Access (Article 10.4)
Description: Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to the supply of a service by a service supplier of the United States, through presence of natural persons of the United States in the territory of Australia,-that is not inconsistent with Australia's obligations under Article XVI of the General Agreement on Trade in Services (GATS).
Australia reserves the right to adopt or maintain any measure at the regional level of government that is not inconsistent with Australia's obligations under Article XVI of the GATS.
Existing Measures:
Sector: All
Obligations National Treatment (Article 11.3) Concerned: Performance Requirements (Article 11.9)
Description: Investment
Australia reserves the right to adopt or maintain any measure with respect to proposals by ‘foreign persons' to invest in Australian urban land (1) (including interests that arise via leases, financing and profit sharing arrangements and the acquisition of interests in urban land corporations and trusts), other than developed non-residential commercial real estate.
Existing Measures: Australia's foreign investment policy, which comprises the:
- Foreign Acquisitions and Takeovers Act 1975 (FATA);
- Foreign Acquisitions and Takeovers Regulations 1989; and Ministerial statements.
Sector: Social Services
Obligations Concerned: National Treatment (Articles 10.2 and 11.3) Most-Favoured-Nation Treatment (Articles 10.3 and 11.4) Local Presence (Article 10.5) Performance Requirements (Article 11.9) Senior Management and Boards of Directors (Article 11.10) Market Access (Article 10.4)
Description: Cross-Border Trade in Services and Investment
Australia reserves the right to adopt or maintain any measure with respect to the provision of law enforcement and correctional services, and the following services to the extent that they are social services established or maintained for a public purpose: income security or insurance, social security or insurance, social welfare, public education, public training, health, and child care.
Existing Measures: