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This consolidation is for information purposes only, and should not be relied upon as authoritative.  For authoritative texts, please refer to the .

Canada-United States-Mexico Agreement (CUSMA) - Chapter 15 - Cross-border Trade in Services

Article 15.1: Definitions

For the purposes of this Chapter:

cross-border trade in services or cross-border supply of services means the supply of a service:

but does not include the supply of a service in the territory of a Party by a covered investment;

enterprise means an enterprise as defined in Article 1.5 (General Definitions), or a branch of an enterprise;

professional service means a service, the supply of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include a service provided by a tradesperson, or a vessel or aircraft crew member;

service supplied in the exercise of governmental authority means, for a Party, a service that is supplied neither on a commercial basis nor in competition with one or more service suppliers;

service supplier of another Party means a person of a Party that seeks to supply or supplies a service; and

specialty air service means a specialized commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.

Article 15.2: Scope

1. This Chapter applies to measures adopted or maintained by a Party relating to cross-border trade in services by a service supplier of another Party, including a measure relating to:

2. In addition to paragraph 1:

3. This Chapter does not apply to:

4. This Chapter does not apply to air services, including domestic and international air transportation services, whether scheduled or non-scheduled, or to related services in support of air services, other than the following:

5. This Chapter does not impose an obligation on a Party with respect to a national of another Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.

6. Annex 15-B (Committee on Transportation Services) and Annex 15-D (Programming Services) include additional provisions related to this Chapter.

Article 15.3: National Treatment

1. Each Party shall accord to services or service suppliers of another Party treatment no less favorable than that it accords, in like circumstances, to its own services and service suppliers.

2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that government to services and service suppliers of the Party of which it forms a part.

3. For greater certainty, whether treatment referred to in paragraph 1 is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or service suppliers on the basis of legitimate public welfare objectives.

Article 15.4: Most-Favored-Nation Treatment

1. Each Party shall accord to services or service suppliers of another Party treatment no less favorable than that it accords, in like circumstances, to services and service suppliers of another Party or a non-Party.

2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that government to services and service suppliers of another Party or a non-Party.

3. For greater certainty, whether treatment referred to in paragraph 1 is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers on the basis of legitimate public welfare objectives.

Article 15.5: Market Access

1. No Party shall adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, a measure that:

Article 15.6: Local Presence

No Party shall require a service supplier of another Party to establish or maintain a representative office or an enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.

Article 15.7: Non-Conforming Measures

1. Article 15.3 (National Treatment), Article 15.4 (Most-Favored-Nation Treatment), Article 15.5 (Market Access), and Article 15.6 (Local Presence) do not apply to:

2. Article 15.3 (National Treatment), Article 15.4 (Most-Favored-Nation Treatment), Article 15.5 (Market Access), and Article 15.6 (Local Presence) do not apply to a measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out by that Party in its Schedule to Annex II.

3. If a Party considers that a non-conforming measure applied by a regional level of government of another Party, as referred to in sub-paragraph 1(a)(ii), creates a material impediment to the cross-border supply of services in relation to the former Party, it may request consultations with regard to that measure. These Parties shall enter into consultations with a view to exchanging information on the operation of the measure and to considering whether further steps are necessary and appropriate.

4. For greater certainty, a Party may request consultations with another Party regarding non-conforming measures applied by the central level of government, as referred to in subparagraph 1(a)(i).

Article 15.8: Development and Administration of Measures

1. Each Party shall ensure that a measure of general application affecting trade in services is administered in a reasonable, objective, and impartial manner.

2. If a Party adopts or maintains a measure relating to licensing requirements and procedures, or qualification requirements and procedures, affecting trade in services, the Party shall, with respect to that measure:

3. If a Party requires an authorization for the supply of a service, it shall ensure that each of its competent authorities:

4. Each Party shall ensure that any authorization fee charged by any of its competent authorities is reasonable, transparent, and does not, in itself, restrict the supply of the relevant service. For the purposes of this paragraph, an authorization fee does not include a fee for the use of natural resources, payments for auction, tendering, or other non-discriminatory means of awarding concessions, or mandated contributions to the provision of universal service.

5. Each Party shall encourage its competent authorities, when adopting a technical standard, to adopt technical standards developed through an open and transparent process, and shall encourage a body designated to develop a technical standard to use an open and transparent process.

6. If a Party requires authorization for the supply of a service, the Party shall provide to a service supplier or person seeking to supply a service the information necessary to comply with requirements or procedures for obtaining, maintaining, amending, and renewing that authorization. That information must include:

7. Paragraphs 1 through 6 do not apply to the aspects of a measure set out in an entry to a Party’s Schedule to Annex I, or to a measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out by that Party in its Schedule to Annex II.

Article 15.9: Recognition

1. For the purposes of the fulfilment, in whole or in part, of a Party’s standards or criteria for the authorization, licensing, or certification of a service supplier, and subject to the requirements of paragraph 4, a Party may recognize any education or experience obtained, requirements met, or licenses or certifications granted, in the territory of another Party or a non-Party. That recognition, which may be achieved through harmonization or otherwise, may be based on an agreement or arrangement with the Party or non-Party concerned, or may be accorded autonomously.

2. If a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted, in the territory of another Party or a non-Party, Article 15.4 (Most-Favored-Nation Treatment) does not require the Party to accord recognition to the education or experience obtained, requirements met, or licenses or certifications granted, in the territory of another Party.

3. If a Party is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, the Party shall afford adequate opportunity to another Party, on request, to negotiate its accession to that agreement or arrangement, or to negotiate a comparable agreement or arrangement. If a Party accords recognition of the type referred to in paragraph 1 autonomously, the Party shall afford adequate opportunity to another Party to demonstrate that education or experience obtained, requirements met, or licenses or certifications granted, in that other Party’s territory should be recognized.

4. A Party shall not accord recognition in a manner that would constitute a means of discrimination between Parties or between a Party and a non-Party in the application of its standards or criteria for the authorization, licensing, or certification of a service supplier, or a disguised restriction on trade in services.

5. The Parties shall endeavor to facilitate trade in professional services as set out in Annex 15-C (Professional Services).

Article 15.10: Small and Medium-Sized Enterprises

1. With a view to enhancing commercial opportunities in services for SMEs, and further to Chapter 25 (Small and Medium-Sized Enterprises), each Party shall endeavor to support the development of SME trade in services and SME-enabling business models, such as direct selling services,Footnote 7 including through measures that facilitate SME access to resources or protect individuals from fraudulent practices.

2. Further to Chapter 28 (Good Regulatory Practices), each Party shall endeavor to adopt or maintain appropriate mechanisms that consider the effects of regulatory actions on SME service suppliers and that enable small businesses to participate in regulatory policy development.

3. Further to Article 15.8 (Development and Administration of Measures), each Party shall endeavor to ensure that authorization procedures for a service sector do not impose disproportionate burdens on SMEs.

Article 15.11: Denial of Benefits

1. A Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is an enterprise owned or controlled by a person of a non-Party, and the denying Party adopts or maintains a measure with respect to the non-Party or a person of the non-Party that prohibits a transaction with that enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to that enterprise.

2. A Party may deny the benefits of this Chapter to a service supplier of another Party if the service supplier is an enterprise owned or controlled by a person of a non-Party, or by a person of the denying Party, that has no substantial business activities in the territory of any Party other than the denying Party.

Article 15.12: Payments and Transfers

1. Each Party shall permit all transfers and payments that relate to the cross-border supply of services to be made freely and without delay into and out of its territory.

2. Each Party shall permit transfers and payments that relate to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange that prevails at the time of transfer.

3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its laws that relate to:

4. For greater certainty, this Article does not preclude the equitable, non-discriminatory, and good faith application of a Party’s laws relating to its social security, public retirement, or compulsory savings programs.

Annex 15-A

Delivery Services

1. For the purposes of this Annex:

delivery services means the collection, sorting, transport, and delivery of documents, printed matter, parcels, goods, or other items;

postal monopoly means the exclusive right accorded to an operator within a Party’s territory to supply specified delivery services pursuant to a measure of the Party; and

universal service means a delivery service that is made available to all users in a designated territory in accordance with standards of price and quality as defined by each Party.

2. For greater certainty, this Annex does not apply to maritime, internal waterway, air, rail, or road transportation services, including cabotage.

3. Each Party that maintains a postal monopoly shall define the scope of the monopoly on the basis of objective criteria, including quantitative criteria such as price or weight thresholds.

4. For greater certainty, each Party has the right to define the kind of universal service obligation it wishes to adopt or maintain. Each Party that maintains a universal service obligation shall administer it in a transparent, non-discriminatory, and impartial manner with regard to all service suppliers subject to the obligation.

5. No Party shall allow a supplier of a delivery service covered by a postal monopoly to:

6. Each Party shall ensure that a supplier of services covered by a postal monopoly does not abuse its monopoly position to act in the Party’s territory in a manner inconsistent with the Party’s commitments under Article 14.4 (National Treatment), Article 15.3 (National Treatment), or Article 15.5 (Market Access) with respect to the supply of delivery services outside of the postal monopoly.

7. No Party shall:

8. Each Party shall ensure that the authority primarily responsible for regulating delivery services is not accountable to any supplier of delivery services, and that the decisions and procedures that the authority adopts are impartial, non-discriminatory, and transparent with respect to all delivery services not covered by a postal monopoly in its territory.Footnote 9

9. No Party may require a supplier of a delivery service not covered by a postal monopoly to contract, or prevent such a supplier from contracting, with another service supplier to supply a segment of the delivery service.

ANNEX 15-B

Committee on Transportation Services

1. The Parties hereby establish a Committee on Transportation Services (Transportation Services Committee) composed of government representatives of the relevant trade and transport-related national authorities of each Party. Each Party shall designate contact points for the Transportation Services Committee in accordance with Article 30.5 (Agreement Coordinator and Contact Points).

2. The Transportation Services Committee shall discuss issues as the Parties may decide that may arise from the implementation and operation of the Parties’ obligations related to transportation services in Chapters 14 (Investment) and 15 (Cross-Border Trade in Services), among others, as appropriate.

3. The Transportation Services Committee may invite, as appropriate, representatives of other relevant entities and representatives of the private sector to attend meetings of the Committee and report to the Committee on discussions by these representatives.

4. The Transportation Services Committee shall take into consideration the discussions and outcomes related to the Committee from other fora in which the Parties participate in order to avoid duplication, and, as appropriate, incorporate those discussions and outcomes in the discussions of the Committee.

5. The Transportation Services Committee shall endeavor to meet within one year of the date of entry into force of this Agreement, and thereafter as necessary, at such venues, format, and times as the Parties may decide.

6. The Transportation Services Committee shall, as appropriate, report to the Commission activities undertaken by the Parties pursuant to this Annex.

Annex 15-C

Professional Services

1. Each Party shall consult with relevant bodies in its territory to seek to identify professional services where at least two of the Parties are mutually interested in establishing a dialogue on issues that relate to the recognition of professional qualifications, licensing, or registration.

2. If a professional service described in Paragraph 1 is identified, each Party shall encourage its relevant bodies to establish dialogues with the relevant bodies of the other Parties, with a view to facilitating trade in professional services. The dialogues may consider, as appropriate:

3. Each Party shall encourage its relevant bodies to take into account agreements that relate to professional services in the development of agreements on the recognition of professional qualifications, licensing, and registration.

4. Further to any dialogue referred to in paragraphs 2(a) through 2(f), each Party shall encourage its respective relevant bodies, as appropriate, to consider undertaking related activity within a mutually agreed time.

5. If relevant bodies enter into discussions under paragraph 2(a) for the purpose of creating a Mutual Recognition Agreement, those discussions may be guided by Appendix 1 for the negotiation of such an agreement.

6. The Parties hereby establish a Professional Services Working Group (Professional Services Working Group), composed of representatives of each Party.

7. The Professional Services Working Group shall liaise, as appropriate, to support the Parties’ relevant bodies in pursuing the activities listed in paragraph 2. This support may include providing points of contact, facilitating meetings, and providing information regarding regulation of professional services in the Parties’ territories.

8. The Professional Services Working Group shall meet within one year of the date of entry into force of this Agreement, and thereafter as decided by the Parties, to discuss activities covered by this Annex.

9. The Professional Services Working Group shall, as appropriate, report to the Commission activities undertaken by the Parties pursuant to this Annex.

Appendix 1

Guidelines for Mutual Recognition Agreements or Arrangements for the Professional Services Sector

Introductory Notes

This Appendix provides practical guidance for governments, negotiating entities or other entities entering into mutual recognition negotiations for the professional services sector. These guidelines are non-binding and are intended to be used by the Parties on a voluntary basis. They do not modify or affect the rights and obligations of the Parties under this Agreement.

The objective of these guidelines is to facilitate the negotiation of mutual recognition agreements or arrangements (MRAs).

The examples listed under this Appendix are provided by way of illustration. The listing of these examples is indicative and is intended neither to be exhaustive, nor as an endorsement of the application of such measures by the Parties.

Section A: Conduct of Negotiations and Relevant Obligations

Opening of Negotiations

1. Parties intending to enter into negotiations towards an MRA are encouraged to inform the Professional Services Working Group established under Annex 15-C. The following information may be supplied:

Single Negotiating Entity

2. If no single negotiating entity exists, the parties are encouraged to establish one.

Results

3. Upon the conclusion of an MRA, parties to the MRA are encouraged to inform the Professional Services Working Group, and may supply the following information in its notification:

Follow-up Actions

4. As a follow-up action to a conclusion of an MRA, parties to the MRA are encouraged to inform the Professional Services Working Group of the following:

Section B: Form and Content of MRAs

Introductory Note

This Section sets out various issues that may be addressed in MRA negotiations and, if so agreed during the negotiations, included in the MRA. It includes some basic ideas on what a Party might require of foreign professionals seeking to take advantage of an MRA.

Participants

5. The MRA should identify clearly:

Purpose of the MRA

6. The purpose of the MRA should be clearly stated.

Scope of the MRA

7. The MRA should set out clearly:

MRA Provisions

8. The MRA should clearly specify the conditions to be met for recognition in the territories of each Party and the level of equivalence agreed between the parties to the MRA. The precise terms of the MRA depend on the basis on which the MRA is founded, as discussed above. If the requirements of the various sub-national jurisdictions of a party to an MRA are not identical, the difference should be clearly presented. The MRA should address the applicability of the recognition granted by one sub-national jurisdiction in the other sub-national jurisdictions of the party to the MRA.

9. The Parties should seek to ensure that recognition does not require citizenship or any form of residency, or education, experience, or training in the territory of the host jurisdiction.

Eligibility for Recognition - Qualifications

10. If the MRA is based on recognition of qualifications, then it should, where applicable, state:

Eligibility for Recognition - Registration

11. If the MRA is based on recognition of the licensing or registration decision made by regulators in the country of origin, it should specify the mechanism by which eligibility for such recognition may be established.

12. If it is considered necessary to provide for additional requirements in order to ensure the quality of the service, the MRA should set out the conditions under which those requirements may apply, for example, in case of shortcomings in relation to qualification requirements in the host country or knowledge of local law, practice, standards, and regulations. This knowledge should be essential for practice in the host country or required because there are differences in the scope of licensed practice.

13. If additional requirements are deemed necessary, the MRA should set out in detail what they entail (for example, examination, aptitude test, additional practice in the host country or in the country of origin, practical training, and language used for examination).

Mechanisms for Implementation

14. The MRA could state:

15. As a guide to the treatment of individual applicants, the MRA could include details on:

16. The MRA could also include the following commitments:

Licensing and Other Provisions in the Host Country

17. If applicable:

Revision of the MRA

18. If the MRA includes terms under which it can be reviewed or revoked, the details of such terms should be clearly stated.

ANNEX 15-D

PROGRAMMING SERVICES

Simultaneous Substitution

1. Canada shall rescind Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335. With respect to simultaneous substitution of signals during the retransmission in Canada of the program referenced in those measures, Canada may not accord the program treatment less favorable than the treatment accorded to other programs originating in the United States retransmitted in Canada.

2. The United States and Canada shall each provide in its copyright law that:

3. Other than as provided for in paragraph 1, nothing in subparagraph 2 (b) shall be construed to prevent a Party from maintaining existing measures relating to retransmission of a program carried in signals intended for free, over-the-air reception by the general public; or introducing measures to enable the local licensee of the copyrighted program to exploit fully the commercial value of its license.

Home Shopping Programming Services

4. Canada shall ensure that U.S. programming services specializing in home shopping, including modified versions of these U.S. programming services for the Canadian market, are authorized for distribution in Canada and may negotiate affiliation agreements with Canadian cable, satellite, and IPTV distributors.

ANNEX 15-E

Mexico’s Cultural Exceptions

Recognizing that culture is an important component of the creative, symbolic and economic dimension of human development,

Affirming the fundamental right of freedom of expression and the right to plural and diverse information,

Recognizing that states have the sovereign right to preserve, develop and implement their cultural policies, to support their cultural industries for the purpose of strengthening the diversity of cultural expressions, and to preserve their cultural identity, and

In order to preserve and promote the development of Mexican culture, Mexico has negotiated reservations in its schedules to Annex I and Annex II for certain obligations in Chapter 14 (Investment) and Chapter 15 (Cross-Border Trade in Services), which are summarized below.

In Annex I:

Broadcasting (radio and free-to-air television):

Reservations taken against:

Newspaper publishing

Reservation taken against:

Cinema services

Reservation taken against:

In Annex II:

Audiovisual services

Reservation taken against:

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