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.
