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regulation of trade by services within the limits of North American association of free trade (NAFTA)

The economic integration beginning between the USA and Canada was necessary in 1947 when in Canada "plan Ebbota" has been accepted, providing encouragement of manufacture of the goods for needs of the American market.

The further development of economic cooperation has led to signing in 1988 of the agreement on free trade (FTA). The agreement on creation of North American association free

Trade (NAFTA) it has been signed in 1992 when Mexico has joined the USA and Canada. [153] the largest market covering more of 400 million of persons thereby has been created. Feature of this organisation which has consolidated geographically close states, the various level of development of its participants is: Mexico considerably lags behind in economic development, the USA dominate.

Liberalisation degree in NAFTA has appeared above, than in kanadskoyoamerikanskom the agreement. For example, if in FTA each country established the external tariffs the agreement on creation NAFTA has provided gradual (according to the schedules adjusted on a bilateral basis) liquidation of all customs duties between the state-participants.

The agreement mentions following aspects: access to the markets; investments; guarantees; services; intellectual property rights; public procurements; the measures connected with observance of standards; temporary entrance for businessmen; the resolution of disputes. Cancellation of the majority of tariffs and not tariff barriers, application of uniform sanitary, phytosanitary norms, standards and safety requirements of the goods, action of the unified customs rules, national treatment distribution in sphere of trade is provided by the goods and services.

NAFTA contains conditions about alignment of national rules of protection of environment and the national labour legislation, "so that industrial expenses for ecological protection and for payment and protection of work did not create an inequality of competitive conditions for the countries - of participants" [154].

It is necessary to notice, that by present time almost all trading and investment barriers between the countries-participants are liquidated and created the conditions promoting a free competition in trade.

In sphere of trade in services positions of the Agreement on free movement of services between the states have great value.

As international trade in services in the Agreement it is understood:

- Granting of service from territory of one state on territory of another;

- Granting of service by the supplier of one state to the foreign person;

- Granting of service by the supplier of one state in territory of another.

The agreement provides in sphere of trade in services a national treatment and a most favoured nation treatment: foreign service providers use a mode not less favorable, than in similar circumstances (item 1202), thus a mode given by it is given to own suppliers, cannot be less favorable, than (item 1203) is given in similar circumstances to other state-participant of the Agreement or other state. It is provided, that the state cannot cause granting of a corresponding mode by presence of representation of the foreign enterprise on its territories and findings of the supplier in its residents.

The agreement though supposes the quantitative restrictions reserved by the parties in their Lists, however provides their periodic revision towards liberalisation or full cancellation.

Such restrictions should be gradually replaced by such measures, as licensing of requirements to services and other "fair" measures (item 1207).

Measures should correspond to the criteria provided by the Agreement. First of all, it can be the measures connected with the international standards. According to item 904 of the Agreement of the party have the right to apply any measures connected with standards (provided by the Agreement on technical barriers, etc. international agreements) with a view of protection of safety and health of people, animal, plants, environment or consumers. Thus each party should use pertinent international standards or the international standards which observance is necessary. Measures which are not effective cannot be applied or (items 905) mismatch the lawful purpose.

Each party can with a view of safety or protection of people, animal, plants, health, environment and consumers to establish those levels of protection as which will count necessary. However discrimination or the disguised restrictions in trade is not supposed. Taken measures should not create unnecessary obstacles for trade between the parties, should be compatible to fundamental laws and obligations of the parties and to correspond to positions of the Agreement on national treatment and most favoured nation treatment granting.

Agreement special provisions provide the measures connected with licensing and certification. These measures should be based on objective and transparent criteria of competence and ability of the person to carry out activity on rendering of service and should not be beyond the requirements necessary for a guarantee of its quality. Thus measures cannot represent itself as the latent restriction on delivery of services.

The agreement contains criteria of a mutual recognition the state-participants of professional diplomas, licences and certificates of experts, provides the simplified order of entrance of representatives of business for rendering professional (i.e. demanding professional education or experience [155]), and business services in territory of the accepting state. However the Agreement does not provide free moving of other manpower, except "white collars" that does liberalisation of trade by services insufficiently full. Thus liberalisation has mentioned not all types of service: each state contains the list of kinds of activity where it can limit foreign participation. For example, Canada has allocated for this purpose such sektory, as public health services, social security, formation, culture, water and aviatransportations. Besides, the Agreement completely does not cover such spheres of services, as services in the field of power and the services connected with the petrochemical goods and an airline traffic [156].

The agreement does not contain obligations of the states to recognise according to a principle of a national treatment formation, experience, licences, the certificates received in territory of other party, however member states should give to other participants of the agreement adequate possibility to show, that formation, experience, licences and certificates correspond the shown given state to requirements and should be recognised, or the agreement or the arrangement of comparable effect should be entered into. Application of the specified criteria promotes activity of suppliers of business and professional services by commercial presence.

Gradual elimination of all distinctions between the service providers who are citizens or residents of the state and suppliers, those not being, in the specific sectors provided in Lists of the parties is provided. These distinctions can be established or restored as the equivalent requirement in relation to that participant who has such distinctions in specific sector.

As to foreign investments according to the agreement the national treatment or a most favoured nation treatment here operates, that in many respects promotes development of trade by services within the limits of the organisation.

Investments within the limits of the Agreement are understood not only direct, but also as others, in particular, portfelnye investments. Those branches of the foreign companies which are in one of the countries-participants use a national treatment also and carry out in its territory "essential economic activities" (item 1132). Imposing on the investment of requirements under the account of local conditions, transfer of technology or profit export is illegal.

Separate restrictions remain in relation to oil sector in Mexico, cultural sphere in Canada, aviatransportations and radio communications in the USA. The exceptions following from preferentsionnyh of agreements operate also. However the part of exceptions has been fixed with instructions of term of removal of restrictions and with the reservation, that they can be liberalised only, but are not strengthened. The greatest quantity of exceptions is necessary to Mexico as the country having low level of economic development, but at the same time it is reserved, that this country will take measures on revision of the legislation, approaching it to the legislation of partners [157].

For development of trade by services the great value has a mode of free transfer of payments of all kinds (profit, dividends, percent, a royalty, administrative payments, a gain from sales, including full or partial liquidation) in is hard to currency, on a market rate at date of transfer. It is forbidden to impose any restrictions as regards conditions of functioning of the capital.

It is necessary to notice, that financial services in the Agreement are allocated in special chapter 14.

Concerning international trade in sector of financial services the Agreement provides both "mobility of the consumer" and "mobility of the supplier". Financial service providers can establish commercial presence at other countries, except for the restrictions brought in Lists.

The agreement also considers financial services which at the moment of its conclusion did not exist. Rather "new financial services", position is provided, according to which to financial institutions of other party of the state-participant will resolve any new financial service, same what in similar circumstances is provided with the internal law (item 1407.1). [158]

Costs will notice, that the Agreement (гл.20) contains a number of positions on consideration of disputes which can be settled within the limits of committees and working groups of the organisation, by board of arbitration or are left in arbitration within the limits of the WTO. Thus for consideration of disputes in sphere of financial services the special mechanism for what the list including to 15 physical persons is constituted is provided, possessing with special experience which are independent and operate on the basis of the special code of behaviour. Arbitrators get out of this group for dispute consideration. If obligation infringement is established, other party can suspend performance of the obligations in the same sector in relation to the infringer [159].

The agreement in sphere of financial services supposes application by the parties of reasonable measures with a view of protection of investors and other participants of the market, and also maintenance of safety, a rationality, financial responsibility of financial institutions or a guarantee of integrity and stability of a financial system of the party (item 1410).

Trade in services in sphere of telecommunications is regulated by Agreement chapter 13. The parties have incurred obligations to provide access of service providers to the basic network kommunakatsy for conducting their business on reasonable and not discrimination conditions. However it concerns only private communications and the networks of data transmission served by firms for their internal use and to some other services, covered by the Agreement. The State-participant can enter restrictions with a view of privacy protection, with a view of public service and in other cases.

It is necessary to notice, that according to item 103 of the Agreement of the party confirm their rights and the duties provided GATT and other international agreements, however in case of collision NAFTA possesses primary force, except for the cases provided in the Agreement.

Considering separate aspects of the Agreement it is possible to find acknowledgement to the statement of professors of Sorbonsky university of D.Karro and P.Zhujara that the market has absorbed the state [160]. Really, influence of national state institutes on economic relations in the countries-participants NAFTA has been essentially reduced at the expense of granting of the rights to corporations. So, according to gl. 11, providing the rights and guarantees of investors, the right of corporations directly is provided to challenge laws and decisions of regulating bodies and developed order of business management in the state if it undermines ability of the investor to derive the maximum profit. The corporation has the right to make to the state the claim, demanding through court of indemnification for potential losses of the future incomes.

At the same time the Agreement does not provide creation of uniform currency, blanket tariffs, and also realisation of coordination of foreign policy and safety as it was provided by participants of EU. Within the limits of NAFTA there are no also the special bodies regulating cooperation, similar existing in EU. All decisions are accepted at meetings of ministers of corresponding departments. Activity on Agreement observance is carried out the tripartite Commission on free trade (the central body at level of ministers, gathers as required, but is not more rare than once a year), more than 25 committees and working groups in the various directions, by three constant national Secretaries.

It is remarkable, that NAFTA from the moment of its occurrence it was considered "as the answer to the North America to the European block of trade". [161] However member state the organisations from the very beginning did not pursue the aim of creation of the all-round economic union, and only aspired to create the free trade zone. Nevertheless, already at Organization creation courageous assumptions of the further integration of the states have been come out. In particular it has been noticed, that "there can be an economic integration - a horse who pulls a cart, and pulls the North America to some political and social union which, really, now nobody considers or does not wish" [162].

Considering, that the Agreement has provided possibility of joining to the organisation of other countries, it is possible to assume, that

NAFTA it was initially considered as the organisation laying in the centre of wider integration of the countries of the Western hemisphere.

At the next session of heads of 34 countries of the Western hemisphere by spring of 2001 the decision on creation of such zone by 2005 with the population of 800 million persons was accepted.

In 2004 of the USA and five countries of Central America (Guatemala, Honduras, Costa Rica, Nicaragua, El Salvador) and Dominican republic have signed the Tsentralnoamerikansky agreement on free trade (FTAA) which removes barriers in trade of the USA with the countries which general population reaches 44 million persons. Despite revealed after a disagreement in this question between the USA and some countries of Latin America, work on creation FTAA, obviously, will be continued.

Thus international trade liberalisation, including services shows experience NAFTA, that, is possible out of the political union, within the limits of the most simple form of economic integration. Within the limits of this form it is the most easier to expand structure of participants of association, that now and occurs. At the same time, considering the further development of process of integration of the countries of the Western hemisphere, it is possible to assume, that, having consolidated the majority of the states of continent, association will consistently pass all subsequent stages of integration.

2.2.3.

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A source: Dubinkina Svetlana Nikolaevna . Mezhdunarodno-pravovoe regulation of international trade by services. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2007

More on topic regulation of trade by services within the limits of North American association of free trade (NAFTA):

  1. regulation of international trade by services within the limits of regional integration associations and the organisations (on an example of the European Union (EU), North American association of free trade (NAFTA), the Organizations of economic cooperation and development (OESR)
  2. opening of the national markets of public procurements in frameworks the North American agreement on free trade (NAFTA)
  3. legal bases of interaction of courts of justice of member states of the European association free traded, and also Vessels of EU with Court of the European association of free trade
  4. 2.2.1. Regulation of trade by services within the limits of the European Union
  5. § 1. Legal regulation of a mutual recognition of professional qualifications in relations with member states the European association of free trade
  6. participation of Russia in international legal regulation of trade by services within the limits of cooperation with the European Community
  7. regulation of trade by services within the limits of the Organization of economic cooperation and development (OESR)
  8. the characteristic of the free trade zones between integration associations and the free trade zones functioning as a part of more difficult levels of integration
  9. 3.2. Participation of Russia in international legal regulation of trade by services within the limits of regional integration associations and within the limits of cooperation with regional integration associations
  10. Participation of Russia in international legal regulirovani trade in services within the limits of the Commonwealth of Independent States
  11. Regulation of international trade by services at global (universal) level
  12. the International electronic trade in services as a phenomenon of liberalisation of the market: legal regulation problems
  13. the characteristic of agreements on creation of the free trade zones with participation of two and more states
  14. formation and development of international legal regulation of international trade by services
  15. Chapter 2. Multilateral mevdunarodno-legal regulation of international trade by services
  16. participation of Russia in international legal regulirovani international trade in services within the limits of the Customs union, the Euroasian economic community, the Organization of regional integration.
  17. the general and especial in agreements on creation of the free trade zones
  18. a liberalisation Principle as the factor of transformation of the mechanism of international legal regulation of international trade in services
  19. 3.1. Participation of Russia in international legal regulation of international trade by services on global (universal level): problems and prospects
  20. Concept of international trade in services