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ownership criteria that would be useful in support of the
agreement. The agreement refers to concepts of
“ownership”, “control”, and “affiliation”. Under GATS,
a juridical person (such as a business enterprise) is
“owned” by persons of a
WTO member country if more
than 50 percent of the equity interest in it is beneficially
owned by persons of that member country; “controlled”
by persons of a member country if such persons have the
power to name a majority of its directors or otherwise to
legally direct its actions; and “affiliated” with another
person when it controls or is controlled by that other
person, or when it and
the other person are both
controlled by the same person (article XXVIII, section
[n]). Thus, GATS would appear concerned with cases of
majority ownership––where, by that very fact, control
typically could be assumed to exist––as well as by
cases
in which control can be
demonstrated to have been
achieved with a smaller ownership share.
4.18. Among statistical guidelines, rules relating to
ownership appear in BPM5, in BD3 and in the 1993
SNA. All of these use ownership of 10 per cent of the
ordinary shares or voting power (for an incorporated
enterprise) or the equivalent (for an unincorporated
enterprise) as a lower threshold
for direct investment,
but they also provide rules that are more closely aligned
with the ownership and control concepts found in
GATS. All three of these harmonized standards define
“subsidiaries” as enterprises in which the direct investor
owns more than 50
per cent, “associates” as enterprises
in which the direct investor owns between 10 and 50 per
cent, and “branches” as wholly or jointly owned
unincorporated enterprises. In the 1993 SNA,
subsidiaries and branches are considered to be “foreign-
controlled enterprises”; associates may be included in, or
excluded from, this category by individual countries
according to their qualitative assessment of foreign
control.
4.19. The
present
Manual considers that it is relevant
to consider criteria used or recommended at national and
regional levels. Here majority ownership––that is, cases
in which the direct investor owns more than 50 per cent
of the ordinary shares or voting power in the direct
investment enterprise––is seen to have played a key role
in determining the subset of foreign affiliates that is
covered. A report of a Eurostat
task force on foreign
affiliates trade indicated agreement by its members that
the criterion of majority owned would be used because
the concept is very clear and in this way very
operational.
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While the report indicated other criteria
that could be used in identifying foreign-controlled
firms, actual collection of
FATS statistics by Eurostat
and OECD has been based on majority ownership; in
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