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Legal Regimes Governing Mode 4 in SADC Member States

This study examines the immigration and labour regimes in SADC member states, comparing them with those of other states, and analyzing the extent to which current GATS Mode 4 commitments reflect the applied regime. The aim is to facilitate a more informed discussion on Mode 4 in the SADC services negotiations.

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Legal Regimes Governing Mode 4 in SADC Member States

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  1. Legal Regimes Governing Mode 4 in SADC Member States Esther Katende – Magezi esther@ekconsultinggroup.com

  2. Introduction: Why the Study? • Analsye the Immigration/ Labour Regimes in Member States compare with those of other States? • To what extent do States’ current GATS Mode 4 commitments reflect the applied regime? • To facilitate a more informed discussion on Mode 4 in the SADC services negotiations. Mode 4 – TIS Protocol: - Supply of a service by a service supplier through the presence of natural persons in the territory of any other State Party. (Art 3:2:d)

  3. Introduction: What does Study Cover? • Caveat: • Study based on desk research • Work in progress • Follow up with delegations during and after TNF 1. Applied Regime in terms of: - categories of persons and skill levels admitted, - numerical and other quotas, - existence of labour market tests, - Examined the periods of stay permitted. 2. Mode 4 categories in the applied regime 3. GATS commitments viz the Applied Regime

  4. Lay Out of Presentation • Introduction Why the Mode 4 Study? 2. Preliminary Findings 3. Emerging Recommendations

  5. Mode 4 Categories • WTO States are commonly using certain categories to specify commitments taken on for the different types of natural persons. - Business Visitors - Independent Professionals - Intra Corporate Transferees - Contractual Service Suppliers Why Use M4 Categories? - Facilitates transparency in negotiations. - Easier for interpretation of commitments.

  6. Mode 4 Categories 1. Business Visitors • Seek entry to: set up commercial presence, negotiate sale of a service, attend business meeting, engage in after sale services. • No remuneration from source in host country. • Not engaged in direct sales to public. • Usually facilitating future trade. 2. Intra Corporate Transferees • Employees of foreign service supplier. • Who has commercial presence in host country. • Are transferred from parent company abroad. • To work within the company in the host country. • Usually access is limited to managers, executives, & specialists. • Usually commitments cover employment for 1 year.

  7. M 4 Categories 3. Contractual Service Suppliers • Employees of foreign service supplier who has no commercial presence in host country. • Present in host country to provide service. • Pursuant to contract between their employer abroad and a local client in host country. • Are paid by their employer abroad not local client. 4. Independent Professionals • Self employed persons. • In host country to supply a service to local client. • Pursuant to service contract.

  8. GATS Commitments Compared to Applied Regime • Member States agreed to offer each other better liberalisation commitments than GATS.(Art 16 Negotiating and Scheduling Guidelines). • Hence need to analyse GATS commitments and compare it to applied regime.

  9. GATS viz Applied Regime – Initial Findings • GATS commitments provide an incomplete picture of extent of possible movement of Mode 4. • In some States, there are restrictions in GATS that do not exist in laws. • Most GATS commitments permit specific categories of persons which is not general position in laws. • Localisation requirement existing in several GATS commitments and in most laws. • Sectors mostly committed to in GATS are part of the six priority sectors.

  10. Preliminary Recommendations 1. Agree on Common Liberalization Targets - Are we going to use the standard mode 4 categorization? 2.Negotiate clearly defined time lines for stay of persons - Permits in most States do not have clear time frames - Creates considerable uncertainty. 3. Remove Limitations in GATS that do not exist in applied regimes. - Some limitations in GATS are not in applied regime. - So seemingly not required hence should be removed.

  11. Preliminary Recommendations 4. Consider Relaxation of High Skill Requirements. - Most movement is limited to high skill, not semi & low skilled. - Use negotiations to reflect on what extent this is desirable. 5. Increase Exceptions to Labour Market Tests. - Authorities have wide discretion on this. - SADC offers platform on how a balance can be obtained.

  12. Thank You….

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