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any other country except B).
d
In other words, the
definition states that mode 4 is the production,
distribution, marketing, sale, or delivery of a service
abroad by a natural or juridical person (to the extent a
juridical person employs foreign nationals in the host
country). The GATS annex on movement of natural
persons supplying services under the Agreement
describes the
movement of natural persons
as seeking
non-permanent entry to supply services abroad. Thus,
GATS refers to the “presence”, which is the stock of
foreign service providers at any given period in time,
while the GATS annex addresses their “movement”. The
GATS annex extends to natural persons of all categories
e
who could be engaged with a “temporary” or “non-
permanent” status by any service supplier supplying the
service––including one present in the host country. For
the purposes of national commitments under GATS,
“temporary” or “non-permanent” status may be
interpreted by each member State and might also differ
for different categories of persons.
f
6. This suggests that the Agreement covers natural
persons:
(a) Who are independent service providers abroad.
This is the case where a foreign natural person has the
status of a juridical person - for example, as is the case
with a number of persons providing
professional
services: he or she could sell services to the host country
company under the agreement or to an individual
consumer through mode 4 - for example, as an architect
or an accountant. The sale of such services is covered by
BPM5 trade in services (i.e., services transactions
between residents and non-residents), although these
sales are included with sales of such services through
other modes of supply;
(b)
Who are employed abroad by service
companies:
d
This would imply nationals working
for the foreign affiliate,
which is not part of trade in GATS mode 4.
e
Natural persons performing particular services in any of the
services sectors and of any skill level.
f
The GATS Annex is very clear that GATS does not apply to
measures affecting natural persons seeking access to the
employment market of a member, nor shall it apply to
measures regarding citizenship, residence or employment on a
permanent basis, nor shall it prevent a member from applying
measures to regulate the entry of natural persons into, or their
temporary stay in, its territory, including
those measures
necessary to protect the integrity of and to ensure the orderly
movement of natural persons across its borders. In addition,
the sole fact of requiring a visa for natural persons of certain
members and not for those of others shall not be regarded as
nullifying or impairing benefits under specific commitment.
(i)
That are foreign (owned, controlled, or
affiliated) companies with some presence in
the host country;
(ii) That are domestically owned firms;
(iii) That have no lasting presence in the
host country, e.g., if a foreign company as a
service supplier
obtains a contract or is
subcontracted to supply services to the host
country company and sends its employee(s)
to provide the services. The foreign natural
persons employed by a foreign-owned
company with a service contract would be
employees of a non-resident employer.
In effect, the case (b)(i) is related to trade through
commercial establishment (mode 3). However, the
GATS commitments allocate to mode 4 that part of a
service that involves the presence of natural persons
abroad. In either case, services could be supplied for
final use as consumption or investment, or as an
intermediary product, and could be
supplied to an
individual consumer or a company.
7. At present, the value of services provided through
mode 4 may be recorded in a number of ways. Some
services provided through mode 4 are recorded as part of
resident/non-resident transactions in services as
described in BPM5 and in chapter III of the present
Manual, indistinguishably included with resident/non-
resident transactions that take place through other modes
of supply. This is discussed further in chapter II of the
Manual, which describes some simplified rules of
allocation for such services across the modes of supply.
The compensation for the provision of labour across
national economic boundaries is recorded in BPM5 as
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