1

What’s happening in Mode 4?

SIEL Conference 2008Panel on International Regulation of Labour Migration

Markus JelittoTrade in Services Division,

WTO Secretariat

2

Mode 4 - definition

The supply of a service by:

a service supplier of one Member, through presence of natural persons of a

Member in the territory of any other Member.

3

Structure of Commitments57%

21% 18%

26%

12% 3%13%

6%

14%

0%

10%

20%

30%

40%

50%

60%

Intra-corporate

transferees

Other E,M,S

entries

Business Visitor

(to set up

commercial

presence)

BV (to negotiate

the sale of a

service)

BV (general) Contractual

Service Supplier

(general)

CSS (employees

of juridical

persons)

Independent

Professionals)

No categories

specified

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Where access commitments, many restrictions remain

• Limited Categories of workers included

• Pre-employment requirements

• Economic Needs Tests/Labour Market Tests

• Quotas

• Residency requirements • Education/ Qualification• Authorisation, approval,

registration requirements• Training of Locals• Wage parity requirements

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Relative importance of Mode 4

• Estimates:– Mode 1 - > 25%

– Mode 2 - ~ 15%

– Mode 3 - ~ 60%

– Mode 4 - ~ 1-2%

• The situation may differ across sectors

6

DDA negotiationsPlurilateral request on Mode 4 (2006)

• Focus on Contract Service Suppliers and Independent Professionals

• recognizes that contract to be obtained before entry into territory

• Recognizes minimum educational requirements (diploma , university degree, or demonstrated experience)

• no wage-parity conditions, but minimum wage requirements acceptable

• ENTs: elimination or substantial reduction: specification of criteria, and duration of ENTs

• duration for CSS 1 year or duration of contract

7

DDA negotiationsPlurilateral request on Mode 4 (2006)

Sector-specific interests (main sectors):

- Accounting & bookkeeping - Architectural services - Engineering services & Integrated engineering services - Health-related: Medical & dental services, Veterinary services, nurses

and paramedical personnel- Computer & related services - Research and Development services- Management consulting services- Technical testing & analysis services- Maintenance and repair of equipment (not including maritime vessels,

aircraft or other transport equipment) (CSS only)- Construction and related engineering services (CSS only)- Environmental services - Tourism Services- Sporting and other recreational services

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DDA negotiationsPlurilateral request on Mode 4 (2006)

• Transparency: (no substitute for MA!)– “hope” for progress on transparency in negotiations on

domestic regulation – single window for information on, inter alia,

• Categories of permit and their requirements;• Documentation required;• Processing time and application fees (if any);• Length and validity of stay;• Possibility and conditions for extensions (including availability of

multiple entry visas/permits);• Rules regarding accompanying dependants;• Review and/or appeal procedures (if any);• Details of relevant contact points for further information • Any relevant immigration laws of general application should

also be referenced (not necessarily included in full, but details of where information can be found on them).

• Any exceptions to these rules, be it due to bilateral or plurilateral arrangements

9

DDA negotiationsLDC request on Mode 4 (2006)

• Categories:– Independent Professionals– Contract Service Suppliers– Business Visitors– Others (e.g. installers, seafarers, graduate trainees, CSS for

government procurement, artists etc.)• Access conditions:

– Substantial removal of quotas and ENTs (at least clarification)

– No wage parity, but minimum wage ok– Full national treatment– Extensive list of occupations to be covered– Single window for information– Accelerate verification of competences

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DDA negotiationsLDC request on Mode 4 (2006)

• What about lower skilled workers?– Level of education: “appropriate education,

qualifications, and experience relevant to the service to be provided”

– List of sectors includes many areas where lower skilled persons could meet the definition: (services incidental to agriculture, construction, warehousing etc)

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What’s happening with domestic regulation?

• Chairman’s draft (1/2008) contains substantive requirements to facilitate assessment of foreign qualifications, e.g.

– adequate procedures for the verification and assessment of qualifications held by service suppliers of other Members (see Art VI:6)

– due consideration to relevant professional experience, as a complement to educational qualifications (including membership in professional associations)

– Identification of any deficiency and information of applicant of requirements to meet the deficiency.

– Where appropriate, provide the possibility for applicants to fulfil such requirements in the home, host or any third jurisdiction.

– applicant to be allowed to submit applications at any time, authority to initiate processing without delay.

– examinations at reasonably frequent intervals

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A little bit of speculation: prospects for the M4 negotiations

• Main stumbling block: disability of USTR to engage

• Some other Members likely to make headway for CSS, and to lesser extent IP.

• Unlikely to include lower skilled occupations • No major changes expected for ICTs• No major changes for removal of ENTs• LDC request for accelerated verification

unlikely to result in tangible outcome

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The wider context: how far can we go with Mode 4

• Inherent limitations: – no coverage of employment in goods sector, – no coverage of employment of domestically owned

enterprise– Stay only for the duration of the supply of the service

• For lower-skilled workers: preference of bilateral, sectoral, arrangements?

• No general indication that Preferential Trade Agreements provide greater M4 access between partners

• Are trade negotiations appropriate vehicle to address issues that are broadly related to immigration?