Publications

Trade and Investment Rules for Energy

V. Facilitating Cross-border Movement of Energy Services Personnel

Background

Efforts in the WTO
GATS Mode 4 deals with services supplied by a WTO Member through the presence of natural persons in the territory of another Member. Among the factors in limiting Mode 4 is that, as matters stand, coverage is confined to those specific services in individual WTO Member's current commitments under GATS. There is no obligation to admit service personnel for activities outside those specifically listed services by the government concerned. Coverage is further limited by exceptions, reservations, and qualifications within each member's GATS commitment schedules. More than 100 countries have filed limitations on their horizontal commitments under Mode 4.

The result is that admission of persons is highly conditional and access is significantly restricted. The GATS is thereby unable to provide a commonly accepted framework regulating the movement of personnel between Member States. Because of the negative effect on international trade, the Doha Declaration mandated governments to negotiate an expansion of their existing Mode 4 commitments.

One of the issues addressed in the Doha Round was the lack of distinction under the GATS between temporary entry and permanent immigration. This results in restrictions applied to short-term services personnel that are designed for normal immigration processing. In a document tabled during the negotiations, for example, Japan recognized that "WTO Members tend to feel that any discussion on liberalization in Mode 4 will ultimately challenge their long-term immigration policy."

Another shortcoming is that the GATS does not deal with issues such as access to information by temporary services personnel. Lack of access often frustrates cross-border movement because restrictions on project information and data - often geared to security concerns of the host State - can negate the very services foreign experts are called on to provide.

On the administrative side, shortcomings include the lack of provisions on the length of processing approvals, on transparency obligations such as where a request is in the approval chain, and providing information on its status. To help remedy this, the United States WTO delegation proposed that Members address the lack of access to "laws and regulations relevant to entry, stay, and work authorization of natural persons, including relevant terms and condition . . . procedures and application materials." India recommended "introducing a special GATS visa for categories of personnel covered by horizontal and sectoral commitments undertaken by a Member in Mode 4 under GATS or through a special subset of Administrative Rules and Procedures within the overall immigration policy framework." While this "GATS visa" idea gained some traction, there were negotiating obstacles to such a visa emerging from WTO efforts.

The result is that even if the Doha Round resumes, an enormous effort will be needed to bridge the differences on Mode 4 to the point of achieving a broad based, multilateral consensus. The likelihood of this seems uncertain at best. It appears to the Task Force that efforts now will be concentrated at the national, bilateral, and regional levels. The following summarizes some of the more noteworthy national and regional initiatives that the Task Force considers helpful in formulating WEC recommendations in this area.

Developments in APEC

The APEC's Business Mobility Group (BMG) is a working group of the APEC Committee on Trade and Investment (CTI). Members include government representatives from departments responsible for immigration and consular affairs from the 21 member economies of APEC. The group meets three times each year at the APEC senior officials meetings. The role of the BMG is to enhance the mobility of business people to facilitate trade and investment activity in the APEC region.
In 1997, the BMG introduced a product known as the APEC Business Travel Card (ABTC). This is an identification card that acts as a short-term visa to the 18 fully participating economies. Its relevant features include: (a) one standard application for the ABTC. All participating nations must screen the application. Each applicant must be endorsed by his or her business. Processing time for the ABTC is up to six months; (b) the card is valid as a short-term, multiple entry visa for 3 years. Travelers are authorized to stay in the host nation for as long as 59 to 90 days, depending on the participating economy's regulations; (c) fast-track entry and exit privileges are available through special APEC lanes at major airports.

Developments within the European Union

Discussions are ongoing in the E.U. on procedures for the entry, temporary stay, and residence of intra-corporate transferees (ICTs) into the E.U. area. The goal is to provide guidelines to mitigate these problems. Aspects under consideration include:

(a) Standardization of admission criteria and definition of ICTs to include minimum employment standards of three months or less, professional qualifications of employment by a group of authorized companies, normalizing salary requirements, and eliminating the labour market test.
(b) Standardization of the application process into a single permit for individual third-country ICTs with a streamlined and transparent process as well as a defined turnaround time. In addition, legislation may mandate proportionate fees, alignment of supporting documents, and a single permit combining a work permit, visa, and residence permit valid for 12 months and renewable with a clear process.
(c) Identification of the scope of the work permit and visa. Legislation may support the transferability of a work permit granted in one country to all of the E.U. Member States. In addition, this work permit may allow the ICT to work at both the location of the company and client sites. Furthermore, the ICT may be able to re-enter the E.U. if the person needs to divide work between the home country outside the E.U. and the host country within the European Union.
Final E.U. regulations may support the harmonization of procedures to issue one single permit for ICT spouses or partners here the spouse or partner would be granted access to the labour markets of all E.U. Member States during the validity of the work permit of the spouse or partner.

Developments in the United States

The Visa Waiver Program allows visa-free travel to the United States. Under the program, the U.S. allows citizens of 34 countries to enter without a visa for up to 90 days for tourism or business purposes. To be eligible, foreign persons must possess a valid passport from their home State and must register online through the U.S. Electronic System for Travel Authorization (ESTA).

The foregoing is a sampling of the regional and national efforts currently underway to facilitate entry of experts for purposes of work in the services area. These efforts plus others have assisted the Task Force in its analysis of possible approaches for WEC in this important area.