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Dr. Kathy-Ann Brown

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Dr. Kathy-Ann Brown AN EXAMINATION OF OECS TRADE IN SERVICES AND INVESTMENT COMMITMENTS IN THE EPA VIS-À-VIS THE DOMESTIC REGULATORY FRAMEWORK: COMPLIANCE ISSUES AND PROPOSALS FOR THE WAY FORWARD By Dr. Kathy-Ann Brown June 2011 The following is a report on the review of OECS laws and regulations relevant to the implementation of EPA trade in services and investment obligations. The report reflects the record of consultations and various email exchanges between the consultant, senior officials, private sector representatives and various stakeholders in the OECS which were facilitated by the Governments, OECS Secretariat and EPA Implementation Unit of the CARICOM Secretariat. The report was prepared by the Organization of the American States with the financial support of the Canadian International Development Agency (CIDA). TABLE OF CONTENTS Page No. Introduction 4 I. The Scope of Review: preliminary observations 6 II. OECS Horizontal reservations: circumscribing specific commitments 20 Alien landholding 23 Types of commercial presence 26 Small business ventures 31 Immigration laws and the movement of labour – mode 4 36 III. Sector Specific Commitments 45 1. Business Services 46 Professional services 52 Legal services 53 Accountancy services 57 Taxation 61 Architectural services 62 Engineering services 67 Integrated engineering services 72 Urban planning and landscape architectural services 72 Geological, geophysical and other scientific prospecting services 73 Medical and Dental services 74 Neurosurgery, Epidemiological services, CATSCAN services 81 Veterinary Services 81 Midwives, nurses, physiotherapists & para-medical personnel services 82 Computer and related services 87 Research and development services 88 Real estate services 89 Rental/leasing services without operators 89 Other business services 90 2. Communication Services 98 Courier services 98 Telecommunications 102 Telecommunications in Antigua and Barbuda 126 3. Construction and Related Engineering Services 131 2 4. Education Services 133 5. Environmental Services 136 6. Financial Services 144 Banks and other financial services (excluding insurance) 156 Insurance services 164 7. Health Related and Social Services 172 8. Tourism and Travel-Related Services 174 9. Recreational, Cultural and Sporting services (other than audiovisual) 182 10. Transport Services 189 IV. Additional Obligations Relating to Commercial Presence 209 Summary Recommendations and Conclusions 224 Annex to the Report 236 3 INTRODUCTION: Terms of Reference The terms of reference which forms the basis for this report provides the following background and context for the review: Having signed the CARIFORUM-EC Economic Partnership Agreement (EPA) in October of 2008 and in conformity with the fulfillment of obligations emanating from both signature and provisional application, the Governments of Antigua and Barbuda, Dominica, Grenada, St Kitts and Nevis, Saint Lucia and St Vincent and the Grenadines are in the process of implementing the EPA. In this context, trade in services and investment represent key areas of interest for these countries. First, as an initial starting point there is an urgent need to undertake a legal review of the EPA against the domestic legislation to effect harmonization, building on the work done by the legislative drafting Services for Trade Negotiations and Policy Formulation Project for the OECS countries. Subsequently, it is also important to prepare proposals to support the implementation of the EPA. With the support of the EPA Implementation Unit of the CARICOM Secretariat, the OECS Secretariat with funding from the General Secretariat of the Organization of American States (GS/OAS) through the Canadian International Development Agency (CIDA), the consultant will work with the Governments of Antigua and Barbuda, Dominica, Grenada, St Kitts and Nevis, Saint Lucia, and St Vincent and the Grenadines in the implementation of the EPA with regard to trade in services and investment. The objectives of the project are set out as follows: Identify, for each OECS Member State, pieces of legislation related to services trade and investment that need to brought into conformity with the EPA, 4 including suggested legislative changes, taking into account the legislative drafting project which identified fiscal incentives and professional services work permits, and Identify and design possible projects for enduring conformity of the OECS countries’ legislation with the EPA. Structure of the Report The analysis undertaken is essentially divided into five segments: firstly, certain preliminary observations are advanced on the approach to the liberalization of services trade and investment adopted in Title II of the EPA. Comparisons are made where appropriate to the World Trade Organization (WTO) Agreements with a view to gaining insight into likely interpretations of the EPA text. Secondly, the horizontal commitments circumscribing the scope of OECS commitments in the EPA are reviewed in light of various pieces of legislation which are either expressly cited in Annex IV.E and F or identified through general references. The third and most substantive focus of the analysis reviews the specific commitments undertaken by OECS States. The scope of the commitments are defined and in light of that, pertinent pieces of legislation identified and reviewed for compatibility with EPA undertakings relating to market access, national treatment, transparency and due process as well as the agreed-on regulatory frameworks, where applicable. Fourthly, certain additional obligations linked to commercial presence covering social aspects and other related concerns are reviewed, in addition to providing a brief overview of OECS commitments on commercial presence in non-services sectors. The final and fifth segment of the report provides a summary of the recommendations for further action. Additionally, an Annex to the report offers a quick overview of OECS horizontal and specific commitments as set out in Annex IV.E and F of the EPA. 5 I. THE SCOPE OF REVIEW: Preliminary Observations Title II of the EPA covers trade in services and investment (commercial presence). The sectors which are covered for CARIFORUM States are those listed in Annex IV.E for non-service sectors, subject to any express limitations, and the specific commitments inscribed in Annex IV.F read in light of the conditions attributable to each State.1 The methodology adopted in scheduling commitments is, in fact, a mixture of the ‘positive’ and ‘negative’ list approaches, which is of significance in defining States’ obligations under the EPA. The measures reviewed herein are those affecting trade in covered services and investment.2 The word “affecting” is not to be equated with ‘regulating’ or ‘governing’, nor limited to measures taken ‘in respect of’ such matters. The word “affecting” potentially covers any measure bearing upon the conditions of competition within covered sectors, regardless of whether the measure directly governs or indirectly affects it. Additionally, any alteration, no matter how small, in the conditions of competition is relevant.3 The “measures” referred to include laws, regulations, procedures, rules, decisions, administrative actions and other relevant instruments (irrespective of the form), adopted by any level of governmental authority, including the exercise of powers delegated to non-governmental bodies.4 As such, the scope of the review applicable to ‘measures affecting’ trade in services and investment is potentially very broad. Expressly excluded from our review (and Title II of the EPA) are measures affecting natural persons seeking access to the employment market of another Party, and measures regarding citizenship, residence or employment on a permanent basis. Such measures 1 The EPA text provides for a positive list approach for commercial presence (in services and non-services sectors) as well as cross-border supply, but essentially employs a negative list approach for the temporary movement of business personnel as these are tied to sectoral commitments; see EPA, Articles 81 & 82. 2 See EPA, Articles 66 & 75. 3 See also WHO paper, “Legal Review of the GATS from a Health Policy Perspective.” 2005, at p.65 - suggesting that “Any alteration, no matter how small, in the conditions of competition by the different treatment qualifies as less favourable treatment”. 4 See also EPA, Article 61. 6 should be distinguished from those affecting the temporary movement of natural persons (Mode 4).5 Subsidies are also excluded from the scope of review.6 This is significant as subsidies constitute one of the most important measures affecting cross-border trade in services and investment. Subsidies, taxes and other financial measures are widely seen as the only instruments that can be used effectively in almost all economic activities and across all service sub-sectors and modes of supply.7 Subsidies are included within the measures covered by the WTO General Agreement on Trade in Services (GATS). Their omission from the EPA is a significant ‘WTO-minus feature’ and affects efforts at a comparison of EPA and WTO commitments, or efforts to use EPA commitments as a benchmark of the preparedness of OECS States to undertake extended services commitments in other negotiations at the bilateral or multilateral level. The extent to which the exclusion of subsidies from the scope of the EPA may provide a legal loophole for non-conforming measures akin to subsidies is unclear. A number of Acts reviewed in OECS countries provide for differential
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