Sunday, September 23, 2012

Summary of the ASEAN Movement of Natural Persons Agreement

Thanks to some friendly sources,  I was able to review the ASEAN Agreement on the Movement of Natural Persons (MNP). This agreement was approved by the ASEAN Economic Ministers’ (AEM)Meeting last month in Cambodia.  The most important point about the MNP Agreement is that it only deals with the temporary movement of persons pursuant to mode 4 of the ASEAN Framework Agreement on Services (AFAS). Mode 4 allows for ASEAN companies to send their personnel temporarily to other countries to provide services.  The MNP Agreement is specifically limited to business visitors, contractual service suppliers, and intra-company transferees. Hence it covers skilled workers, professionals and executives, and only for their temporary entry.  The MNP Agreement does not allow for permanent entry by such persons, nor does it allow for movement of all persons (e.g., unskilled labor) even on a temporary basis.

The MNP Agreement will be signed by ASEAN leaders at the Summit in November, but I provide a quick preview of the agreement in this post.

The Preamble specifically refers to AFAS.

Article 1 sets out the objectives of the MNP agreement, to allow for the Mode 4 movement pursuant to the AFAS.

Article 2 sets out the scope of the agreement, namely business visitors, intracorporate transferees, and contractual service suppliers. The MNP agreement does not apply to employment measures, permanent residency or citizenship.  Nor does it limit the application of visa requirements or other measures to maintain the national integrity of borders.

Article 3 sets out definitions:

(a)       Business Visitor means a natural person seeking to enter or stay in the territory of another Member State temporarily, whose remuneration and financial support for the duration of the visit is derived from outside of that other Member State;

(i)     as a representative of a goods seller/service supplier, for the purpose of negotiating the sale of goods or supply of services or entering into agreements to sell goods or supply services for that goods seller/service supplier, where such negotiations do not involve direct sale of goods or supply of services to the general public;

(ii)    as an employee of a juridical person as defined in subparagraphs e(i), e(ii) and e(iii) of this Article only for the purpose of establishing an investment or setting up a commercial presence, for the juridical person in the territory of another Member State;

(iii)   for the purpose of participating in business negotiations or meetings; or

(iv)   for the purpose of establishing an investment or setting up a commercial presence in the territory of another Member State;

(b)       Contractual Service Supplier means a natural person who is an employee of a juridical person established in the territory of a Member State  which has no commercial presence in the territory of the other Member State where the services will be provided, who:

(i)     enters the territory of  that other Member State temporarily in order to supply a service pursuant to a contract(s) between his/her employer and service consumer(s) in the territory of the other Member State;

(ii)    is either an executive, manager, or specialist as defined in subparagraph e(i), e(ii) and e(iii) of this Article, who receives remuneration from his/her employer; 

(iii)   must possess the appropriate educational and professional qualifications relevant to the service to be provided; and

(iv)   as may be applicable, has been an employee of the juridical person for a period as may be specified in the Schedule of Commitments;

(c)       Intra–Corporate Transferee (ICT) means a natural person who is an employee of a juridical person established in the territory of a Member State, who is transferred temporarily for the supply of a service through commercial presence (either through a representative office, branch, subsidiary or affiliate) in the territory of another Member State, and who has been an employee of the juridical person for a period as may be specified in the Schedule of Commitments , and who is:

(i)     an Executive: a natural person within the organisation who primarily directs the management of the organisation and 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 directly perform tasks related to the actual provision of the service or services of the organisation;

(ii)    a Manager: a natural person within the organisation who primarily directs the organisation/department/subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff; does not include first line supervisors unless employees supervised are professionals; does not include employees who primarily perform tasks necessary for the provision of the service; or

(iii)   a Specialist: a natural person within the organisation who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organisation’s service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession;

Article 4 sets out the general obligation of Member States to provide for temporary entry or temporary stay to qualifying persons.

Article 5 requires Member States to process applications within a reasonable time.

Article 6 sets out each Member State’s national commitments to provide temporary entry or temporary stay for qualifying persons.

Article 7 provides for further negotiations for liberalization of the national commitments.

Article 8 provides transparency requirements, including publishing immigration requirements on the Internet.

Article 9 provides for general exceptions for public order; human, animal or plant life or health; and compliance with laws or regulations on fraud, privacy and safety.

Article 10 provides for security exceptions in times of war or emergency, mito comply with military needs or the UN Charter.

Article 11 provides that disputes can be raised through the Enhanced Dispute Settlement Mechanism (EDSM), provided that the individuals affected have exhausted all domestic remedies and the matter involves a pattern of practice, not a an individual matter. Also remember that the EDSM can only be invoked by a government and not a person.

Article 12 establishes that the MNP Agreement is the sole governing agreement for movement of natural persons, even if legal commitments under the ASEAN Comprehensive Investment Agreement (ACIA) are involved.

Article 13 provides for mutual recognition of qualifications  or licenses.
Article 14 provides that the AEM and ASEAN Coordinating Committee on Services shall administer the agreement.

Article 15 provides for revisions, modifications and amendments.

Article 16 provides for the entry into force within 180 days after signing of the agreement.

Article 17 provides for the deposit of the MNP Agreement with the ASEAN Secretary General.

Friday, September 14, 2012

ASEAN Economic Community in 2015? In a Way, It's Already Here

This week the Wall Street Journal reported what many ASEAN observers have suspected: that the 2015 target date for implementing the ASEAN Economic Community (AEC) will be interpreted to be the end of 2015, rather than the beginning of 2015:

Asean officials say an official launch date has never been specified, and the trade group has in any case been working towards the launch of the Asean Economic Community, or AEC, through a series of tariff cuts. “There was never an agreed, exact date to ‘when’ in 2015 we should all work towards—should it be 1st of January? Mid-year? Or year-end 2015,” Mr. Surin said after meeting regional energy ministers in Cambodia.  Asean’s economic ministers, he said, agreed on Dec. 31.

This was to have been expected for a couple of reasons.   

First, ASEAN has adjusted its internal deadlines both forwards and backwards. The original implementation date for the AEC was 2020, not 2015.  Similarly, deadlines for other AEC implementing items like the ASEAN Single Window have come and gone.
Second, an additional year is useful because it will allow the ASEAN Chair in 2015, Malaysia, to have full authority during the critical period.  This would follow the turns of several smaller countries as ASEAN Chair (Cambodia-2012, Brunei-2013, Myanmar-2014) which have varying levels of experience and capability in economic matters.  Having founding member Malaysia, a well-experienced trading nation, as ASEAN Chair in 2015 will help.

Finally, one has to be reminded that the AEC will not be implemented suddenly on any particular date, but over a period of time. In fact, one could say that the AEC already exists, in the form of a single production base – but only for the (mainly Japanese-owned) automotive and electronics firms already operating on a regional basis within ASEAN.  Expanding the AEC beyond that base is ASEAN’s work project through 2015 and beyond. Thus, 2015 should be viewed as only the first deadline for the AEC, not the final deadline. 

Tuesday, September 4, 2012

My NUS Law Class Visits the ASEAN Secretariat Again

Yesterday my National University of Singapore law school class had the privilege to visit the ASEAN Secretariat in Jakarta (this is the second such visit by my class).  Our visit happened to coincide with unveiling of the new ASEAN website, supported by the USAID.  

The class was lucky enough to see ASEAN Secretary General Surin Pitsuwan.

They also saw US Ambassador to ASEAN David Carden (working on US Labor Day!).

Here you have DSG Nyan Lin, the event MC, DSG Bagas Hapsoro, SG Surin, Ambassador Carden, DSG Lim Hong Hin and DSG Misran Karmain.

The new ASEAN website is really much better, allowing for metatextual search of ASEAN documents.  This required data entry for over 18,000 documents.  What is needed is broader coverage of ASEAN documentation.  There are many documents which still exist only on paper in the ASEAN Secretariat.  Without better recordkeeping, even on a confidential basis, ASEAN risks losing control over its history.

The class benefited from a briefing by the ASEAN Secretariat sections who work on the AEC and legal issues.  Many thanks to the ASEAN Secretariat for hosting us and helping the class better understand ASEAN!

Monday, September 3, 2012

Summary of the ASEAN Economic Ministers' Meeting

Last week the ASEAN Economic Ministers (AEM) met in Siem Reap.   In this post, I summarize some of the major outcomes from the meeting:

The ASEAN trading link connecting stock exchanges in the region will start up later this month, with Malaysia and Singapore (re)establishing cross border trading.