Article 67. Market Access
1. With respect to market access through commercial presence, the United Kingdom and the Signatory CARIFORUM States shall accord to commercial presences and investors of the other Party a treatment no less favourable than that provided for in the specific commitments contained in Annex IV.
2. In sectors where market access commitments are undertaken, the measures which the United Kingdom and the Signatory CARIFORUM States shall not maintain or adopt either on the basis of a regional subdivision or on the basis of their entire territory, unless otherwise specified in Annex IV, are defined as:
(a) Limitations on the number of commercial presences whether in the form of numerical quotas, monopolies, exclusive rights or other commercial presence requirements such as economic needs tests;
(b) Limitations on the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) Limitations on the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (1);
(d) Limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment; and
(e) Measures which restrict or require specific types of commercial presence (subsidiary, branch, representative office) (2) or joint ventures through which an investor of the other Party may perform an economic activity.
(1) Subparagraphs 2(a), 2(b) and 2(c) do not cover measures taken in order to limit the production of an agricultural product.
(2) Each Party or Signatory CARIFORUM State may require that in the case of incorporation under its own law, investors must adopt a specific legal form. To the extent that such requirement is applied in a non-discriminatory manner, it does not need to be specified in a Party's list of commitments in order to be maintained or adopted by that Party.
Article 68. National Treatment
1. In the sectors where market access commitments are inscribed in Annex IV and subject to any conditions and qualifications set out therein, with respect to all measures affecting commercial presence, the United Kingdom and the Signatory CARIFORUM States shall grant to commercial presences and investors of the other Party treatment no less favourable than that they accord to their own like commercial presences and investors.
2. The United Kingdom and the Signatory CARIFORUM States may meet the requirement of paragraph 1 by according to commercial presences and investors of the other Party, either formally identical treatment or formally different treatment to that they accord to their own like commercial presences and investors.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of commercial presences and investors of the United Kingdom or of the Signatory CARIFORUM States compared to like commercial presences and investors of the other Party.
4. Specific commitments assumed under this Article shall not be construed to require the United Kingdom or the Signatory CARIFORUM States to compensate for inherent competitive disadvantages which result from the foreign character of the relevant commercial presences and investors.
Article 69. Lists of Commitments
The sectors liberalised by the United Kingdom and by the Signatory CARIFORUM States pursuant to this Chapter and, by means of reservations, the market access and national treatment limitations applicable to commercial presences and investors of the other Party in those sectors are set out in lists of commitments included in Annex IV.
Article 70. Most-favoured-nation Treatment
1. With respect to any measures affecting commercial presence covered by this Chapter:
(a) The United Kingdom shall accord to commercial presences and investors of the Signatory CARIFORUM States a treatment no less favourable than the most favourable treatment applicable to like commercial presences and investors of any third country with whom it concludes an economic integration agreement after the signature of this Agreement;
(b) The Signatory CARIFORUM States shall accord to the commercial presences and investors of the United Kingdom a treatment no less favourable than the most favourable treatment applicable to like commercial presences and investors of any major trading economy with whom they conclude an economic integration agreement after the signature of this Agreement.
2. When a Party or a Signatory CARIFORUM State concludes a regional economic integration agreement creating an internal market or requiring the parties thereto to significantly approximate their legislation with a view to removing non-discriminatory obstacles to commercial presence and to trade in services, the treatment that such Party or Signatory CARIFORUM State grants to commercial presences and investors of third countries in sectors subject to the internal market or to the significant approximation of legislation is not covered by the provision of paragraph 1(3).
(3) At the time of signature of this Agreement, the European Economic Area, pre-accession agreements to the European Union, the CARICOM Single Market and Economy, the Organisation of Eastern Caribbean States Economic Union and the CARICOM-Dominican Republic Free Trade Agreement are deemed to fall in their entirety under this exception.
3. The obligations set out in paragraph 1 shall not apply to treatment granted:
(a) Under measures providing for recognition of qualifications, licences or prudential measures in accordance with Article VII of the GATS or its Annex on Financial Services,
(b) Under any international agreement or arrangement relating wholly or mainly to taxation, or
(c) Under measures benefiting from the coverage of an MFN exemption listed in accordance with Article II.2 of the GATS.
4. For the purpose of this provision, a ‘major trading economy' means any developed country, or any country accounting for a share of world merchandise exports above 1 % in the year before the entry into force of the economic integration agreement referred to in paragraph 1, or any group of countries acting individually, collectively or through an economic integration agreement accounting collectively for a share of world merchandise exports above 1,5 % in the year before the entry into force of the economic integration agreement referred to in paragraph 1(1).
(1) For this calculation official data by the WTO on leading exporters in world merchandise trade (excluding intra-European Union trade) shall be used.
5. Where any Signatory CARIFORUM State becomes party to an economic integration agreement with a third party referred to in paragraph 1(b) and that agreement provides for more favourable treatment to such third party than that granted by the Signatory CARIFORUM State to the United Kingdom pursuant to this Agreement, the Parties shall enter into consultations. The Parties may decide whether the concerned Signatory CARIFORUM State may deny the more favourable treatment contained in the economic integration agreement to the United Kingdom. The Joint CARIFORUM- UK Council may adopt any necessary measures to adjust the provisions of this Agreement.
Article 71. Other Agreements
Nothing in this Title 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 a Signatory CARIFORUM State are parties.
Article 72. Behaviour of Investors
The United Kingdom and the Signatory CARIFORUM States shall cooperate and take, within their own respective territories, such measures as may be necessary, inter alia, through domestic legislation, to ensure that:
(a) Investors be forbidden from, and held liable for, offering, promising or giving any undue pecuniary or other advantage, whether directly or through intermediaries, to any public official or member of his or her family or business associates or other person in close proximity to the official, for that person or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties, or in order to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relation to an investment.
(b) Investors act in accordance with core labour standards as required by the International Labour Organization (‘ILO') Declaration on Fundamental Principles and Rights at Work, 1998, to which the United Kingdom and the Signatory CARIFORUM States are parties(2).
(c) Investors do not manage or operate their investments in a manner that circumvents international environmental or labour obligations arising from agreements to which the United Kingdom and the Signatory CARIFORUM States are parties.
(d) Investors establish and maintain, where appropriate, local community liaison processes, especially in projects involving extensive natural resource-based activities, in so far that they do not nullify or impair the benefits accruing to the other Party under the terms of a specific commitment.
(2) These core labour standards are further elaborated, in accordance with the Declaration, in ILO Conventions concerning freedom of association, the elimination of forced labour, the abolition of child labour and the elimination of discrimination in the work place.
Article 73. Maintenance of Standards
The United Kingdom and the Signatory CARIFORUM States shall ensure that foreign direct investment is not encouraged by lowering domestic environmental, labour or occupational health and safety legislation and standards or by relaxing core labour standards or laws aimed at protecting and promoting cultural diversity.
Article 74. Review
With a view to the progressive liberalisation of investments, the Parties shall review the investment legal framework, the investment environment, and the flow of investment between them consistent with their commitments in international agreements no later than three years after the entry into force of this Agreement and at regular intervals thereafter.
Chapter 3. Cross-border Supply of Services
Article 75. Coverage and Definitions
1. This Chapter applies to measures by the Parties or by the Signatory CARIFORUM States affecting the cross-border supply of all services with the exception of:
(a) Audio-visual services;
(b) National maritime cabotage (1); and
(c) National and international air transport services, whether scheduled or non-scheduled, 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;
(ii) Computer reservation system (‘CRS') services; and
(iv) Other ancillary services that facilitate the operation of air carriers, such as ground handling services, rental services of aircraft with crew, and airport management services.
2. For the purpose of this Chapter:
(a) Cross-border supply of services is defined as the supply of a service:
(i) From the territory of a Party into the territory of the other Party (Mode 1);
(ii) In the territory of a Party to the service consumer of the other Party (Mode 2);
(b) ‘services' includes any service in any sector except services supplied in the exercise of governmental authority;
(c) ‘a service supplied in the exercise of governmental authority' means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers;
(d) ‘service supplier' means any natural or juridical person that seeks to supply or supplies a service;
(e) ‘service supplier of a Party' means a natural or juridical person of the United Kingdom or a natural or juridical person of a Signatory CARIFORUM State that seeks to supply or supplies a service;
(f) ‘supply of a service' includes the production, distribution, marketing, sale and delivery of a service.
(1) National maritime cabotage covers transport services within a Signatory CARIFORUM State or within the United Kingdom for the carriage of passengers or goods originating and terminating in that CARIFORUM State or in the United Kingdom.
Article 76. Market Access
1. With respect to market access through the cross-border supply of services, the United Kingdom and the Signatory CARIFORUM States shall accord services and service suppliers of the other Party treatment not less favourable than that provided for in the specific commitments contained in Annex IV.
2. In sectors where market access commitments are undertaken, the measures which the United Kingdom and the Signatory CARIFORUM States shall not maintain or adopt either on the basis of a regional subdivision or on the basis of their entire territory, unless otherwise specified in Annex IV, are defined as:
(a) Limitations on the number of services suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements 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 77. National Treatment
1. In the sectors where market access commitments are inscribed in Annex IV, and subject to any conditions and qualifications set out therein, the United Kingdom and the Signatory CARIFORUM States 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 they accord to their own like services and services suppliers.
2. The United Kingdom and the Signatory CARIFORUM States may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that they accord to their own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the United Kingdom or of the Signatory CARIFORUM States compared to like services or service suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed to require the United Kingdom or the Signatory CARIFORUM States to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.
Article 78. Lists of Commitments
The sectors liberalised by the United Kingdom and by the Signatory CARIFORUM States 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 included in Annex IV.
Article 79. Most-favoured-nation Treatment
1. With respect to any measure affecting cross-border supply of services covered by this Chapter,
(a) The United Kingdom shall accord to services and services suppliers of the Signatory CARIFORUM States a treatment no less favourable than the most favourable treatment applicable to like services and services suppliers of any third country with whom it concludes an economic integration agreement after the signature of this Agreement;
(b) The Signatory CARIFORUM States shall accord to the services and services suppliers of the United Kingdom a treatment no less favourable than the most favourable treatment applicable to like services and services suppliers of any major trading economy with whom they conclude an economic integration agreement after the signature of this Agreement.
2. When a Party or a Signatory CARIFORUM State concludes a regional economic integration agreement creating an internal market or requiring the parties thereto to significantly approximate their legislation with a view to removing non- discriminatory obstacles to trade in services, the treatment that such Party or Signatory CARIFORUM State grants to services and services suppliers of third countries in sectors subject to the internal market or to the significant approximation of legislation is not covered by the provision of paragraph 1(1).
3. The obligations set out in paragraph 1 shall not apply to treatment granted:
(a) Under measures providing for recognition of qualifications, licences or prudential measures in accordance with Article VII of the GATS or its Annex on Financial Services;
(b) Under any international agreement or arrangement relating wholly or mainly to taxation; or
(c) Under measures benefiting from the coverage of an MFN exemption listed in accordance with Article II.2 of the GATS.
4. For the purpose of this provision, a ‘major trading economy' means any developed country, or any country accounting for a share of world merchandise exports above 1% in the year before the entry into force of the economic integration agreement referred to in paragraph 1, or any group of countries acting individually, collectively or through an economic integration agreement accounting collectively for a share of world merchandise exports above 1,5 % in the year before the entry into force of the economic integration agreement referred to in paragraph 1(2).
5. Where any Signatory CARIFORUM State becomes party to an economic integration agreement with a third party referred to in paragraph 1(b) and that agreement provides for more favourable treatment to such third party than that granted by the Signatory CARIFORUM State to the United Kingdom pursuant to this Agreement, the Parties shall enter into consultations. The Parties may decide whether the concerned Signatory CARIFORUM State may deny the more favourable treatment contained in the economic integration agreement to the United Kingdom. The Joint CARIFORUM-UK Council may adopt any necessary measures to adjust the provisions of this Agreement.
(1) At the time of signature of this Agreement, the European Economic Area, pre-accession agreements to the European Union, the CARICOM Single Market and Economy, the Organisation of Eastern Caribbean States Economic Union and the CARICOM-Dominican Republic Free Trade Agreement are deemed to fall in their entirety under this exception.
(2) For this calculation official data by the WTO on leading exporters in world merchandise trade (excluding intra-European Union trade) shall be used.
Chapter 4. Temporary Presence of Natural Persons for Business Purpose
Article 80. Coverage and Definitions
1. This Chapter applies to measures by the Parties or by the Signatory CARIFORUM States concerning the entry into and temporary stay in their territories of key personnel, graduate trainees, business services sellers, contractual services suppliers, independent professionals and short term visitors for business purposes, in accordance with Article 60(5).
2. For the purposes of this Chapter:
(a) ‘key personnel' means natural persons employed within a juridical person of the United Kingdom or of the Signatory CARIFORUM States other than a non-profit organisation and who are responsible for the setting-up or the proper control, administration and operation of a commercial presence;
‘key personnel' comprise ‘business visitors' responsible for setting up a commercial presence and ‘intra-corporate transfers';
- ‘business visitors' mean natural persons working in a senior position who are responsible for setting up a commercial presence. They do not engage in direct transactions with the general public and do not receive remuneration from a source located within the United Kingdom or host Signatory CARIFORUM State respectively;
- ‘intra-corporate transfers' mean natural persons of the United Kingdom or of the Signatory CARIFORUM States who have been employed by a juridical person or have been partners in it for at least one year and who are temporarily transferred to a commercial presence in the territory of the other Party. The natural person concerned must belong to one of the following categories:
1. Managers:
Persons working in a senior position within a juridical person, who primarily direct the management of the commercial presence, receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
(i) Directing the commercial presence or a department or sub-division thereof;
(ii) Supervising and controlling the work of other supervisory, professional or managerial employees;
(iii) Having the authority personally to recruit and dismiss or recommend recruiting, dismissing or other personnel actions.
2. Specialists:
Persons working within a juridical person who possess uncommon knowledge essential to the commercial presence's production, research equipment, techniques or management. In assessing such knowledge, account will be taken not only of knowledge specific to the commercial presence, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession;
(b) ‘graduate trainees' means natural persons of the United Kingdom or of the Signatory CARIFORUM States who have been employed by a juridical person of the United Kingdom or Signatory CARIFORUM State for at least one year, possess a university degree and are temporarily transferred to a commercial presence or to the parent company of the juridical person in the territory of the other Party, for career development purposes or to obtain training in business techniques or methods (1);
(1) The recipient commercial presence may be required to submit a training programme covering the duration of the stay for prior approval, demonstrating that the purpose of the stay is for training.
(c) ‘business services sellers' means natural persons of the United Kingdom or of the Signatory CARIFORUM States who are representatives of a service supplier of the United Kingdom or Signatory CARIFORUM State seeking temporary entry into the territory of the other Party for the purpose of negotiating the sale of services or entering into agreements to sell services for that service supplier. They do not engage in making direct sales to the general public and do not receive remuneration from a source located within the United Kingdom or Signatory CARIFORUM State respectively;
(d) ‘contractual services suppliers' means natural persons of the United Kingdom or of the Signatory CARIFORUM States employed by a juridical person of the United Kingdom or Signatory CARIFORUM State which has no commercial presence in the territory of the other Party and which has concluded a bona fide contract (other than through an agency as defined by CPC 872) to supply services with a final consumer in the latter Party requiring the presence on a temporary basis of its employees in that Party in order to fulfil the contract to provide services;
(e) ‘independent professionals' means natural persons of the United Kingdom or of the Signatory CARIFORUM States engaged in the supply of a service and established as self-employed in the territory of the United Kingdom or Signatory CARIFORUM State who have no commercial presence in the territory of the other Party and who have concluded a bona fide contract (other than through an agency as defined by CPC 872) to supply services with a final consumer in the latter Party requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services (1);
(1) The service contract referred to under (d) and (e) shall comply with the laws, regulations and requirements of the Party or Signatory CARIFORUM States where the contract is executed.
(f) ‘qualifications' means diplomas, certificates and other evidence (of formal qualification) issued by an authority designated pursuant to legislative, regulatory or administrative provisions and certifying successful completion of professional training.
Article 81. Key Personnel and Graduate Trainees
1. For every sector liberalised in accordance with Chapter 2 of this Title and subject to any reservations listed in Annex IV, the United Kingdom and the Signatory CARIFORUM States shall allow investors of the other Party to employ in their commercial presences natural persons of that other Party provided that such employees are key personnel or graduate trainees as defined in Article 80. The temporary entry and stay of key personnel and graduate trainees shall be for a period of up to three years for intra-corporate transfers, 90 days in any 12-month period for business visitors, and one year for graduate trainees.
2. For every sector liberalised in accordance with Chapter 2 of this Title, the measures which the United Kingdom and the Signatory CARIFORUM States shall not maintain or adopt either on the basis of a regional subdivision or on the basis of their entire territory, unless otherwise specified in Annex IV, are defined as limitations on the total number of natural persons that an investor may employ as key personnel and graduate trainees in a specific sector in the form of numerical quotas or a requirement of an economic needs test and as discriminatory limitations.
Article 82. Business Services Sellers
For every sector liberalised in accordance with Chapters 2 or 3 of this Title and subject to any reservations listed in Annex IV the United Kingdom and the Signatory CARIFORUM States 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 83. Contractual Services Suppliers and Independent Professionals
1. The United Kingdom and the Signatory CARIFORUM States reaffirm their respective obligations arising from their commitments under the GATS as regards the entry and temporary stay of contractual services suppliers and independent professionals.
2. Without prejudice to paragraph 1, the United Kingdom shall allow the supply of services into its territory by contractual services suppliers of the CARIFORUM States through presence of natural persons, subject to the conditions specified below and in Annex IV, in the following subsectors:
1. Legal advisory services in respect of international public law and foreign law (i.e. non-United Kingdom law);
2. Accounting and bookkeeping services;
3. Taxation advisory services;
4. Architectural services;
5. Urban planning and landscape architecture services;
6. Engineering services;
7. Integrated engineering services;
8. Medical and dental services;
9. Veterinary services;
10. Midwives services;
11. Services provided by nurses, physiotherapists and paramedical personnel;
12. Computer and related services;
13. Research and development services;
14. Advertising services;
15. Market research and opinion polling;
16. Management consulting services;
17. Services related to management consulting;
18. Technical testing and analysis services
19. Related scientific and technical consulting services;
20. Maintenance and repair of equipment, including transportation equipment, notably in the context of an after-sales or after-lease services contract;
21. Chef de cuisine services;
22. Fashion model services;
23. Translation and interpretation services;
24. Site investigation work;
25. Higher education services (only privately-funded services);
26. Environmental services;
27. Travel agencies and tour operators' services;
28. Tourist guides services;
29. Entertainment services other than audiovisual services.
Without prejudice to paragraph 1, the Signatory CARIFORUM States shall allow the supply of services into their territory by United Kingdom contractual services suppliers through presence of natural persons, subject to the conditions specified below and in Annex IV.
The commitments undertaken by the United Kingdom and by the Signatory CARIFORUM States are subject to the following conditions: