Protocol to the Agreement between the Government of the Republic of Kazakhstan and the Federal Council of Switzerland on Trade and Economic Cooperation signed in Almaty on 12 May 1994 (Disciplines on Domestic Regulation in Trade in Services)

 

Protocol to the Agreement between the Government of the Republic of Kazakhstan and the Federal Council of Switzerland on Trade and Economic Cooperation signed in Almaty on 12 May 1994

(Disciplines on Domestic Regulation in Trade in Services)

 

 

        The Government of the Republic of Kazakhstan and the Federal Council of Switzerland, hereinafter referred as the Contracting Parties,

 

To implement Article 12 of the Agreement on Trade and Economic Cooperation between the Government of the Republic of Kazakhstan and the Federal Council of Switzerland of 12 May 1994,

 

        have agreed to the following:

 

 

Article 1

Scope

 

1. This Protocol applies to measures by the Contracting Parties relating to licensing requirements and procedures and qualification requirements and procedures in trade in services between the Contracting Parties in sectors where they have undertaken specific commitments under the General Agreement on Trade in Services (hereinafter referred to as the “GATS”).

 

2. This Protocol shall not apply to universal service.

 

Article 2

Definitions

 

1. For the purposes of this Protocol:

 

        (a)      “licensing requirements” means substantive requirements, other than qualification requirements, with which a natural or juridical person is required to comply in order to obtain, amend or renew authorisation to supply a service;

 

        (b)     “licensing procedures” means administrative or procedural rules that a natural or juridical person, seeking authorisation to supply a service, including the amendment or renewal of a licence, must adhere to in order to demonstrate compliance with licensing requirements;

 

        (c)      “qualification requirements” means substantive requirements relating to the competence of a natural person in relation to the supply of a service, and whose fulfilment is required to be demonstrated for the purpose of obtaining authorisation to supply a service;

 

        (d)     “qualification procedures” means administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service;

 

        (e)      other terms used in this Protocol shall be understood according to the definitions set out in the GATS, mutatis mutandis.

 

2. Nothing in this Article shall be construed to assume that a Contracting Party is expected to have such definitions in its domestic legislation.

 

Article 3

Relationship to the GATS

 

        The relevant provisions of the GATS, in particular the relevant definitions, Article III, Article IIIbis, paragraphs (1), (2), (3) and (6) of Article VI, Article XIV, Article XIVbis and Article “Domestic Regulation” of the GATS Annex on Financial Services, are hereby incorporated into this Protocol and shall apply mutatis mutandis.

 

Article 4

Objectives and General Provisions

 

1. 1. Recognising the right to regulate, and to introduce new regulations, on the supply of services within the territories of their states in order to meet national policy objectives and in a manner consistent with their obligations and commitments under the GATS, the Contracting Parties have agreed to this Protocol with the objective of facilitating trade in services by ensuring that measures referred to in Article 1 of this Protocol are not administered or applied with a view to or with the effect of creating unnecessary barriers to trade in services between

 

2. The Contracting Parties shall ensure that measures referred to in Article 1 are:

(a)    set out in their respective domestic laws;

(b)   based on objective and transparent criteria, such as the competence and the ability to supply the service;

(c)    not more burdensome than necessary to ensure the quality of the service; and

(d)   relevant to the supply of the services to which they apply.

 

Article 5

Licensing Requirements

 

        Where a Contracting Party imposes licensing requirements for the supply of a service, it shall ensure that adequate procedures exist for verifying the fulfilment of such requirements by applicants of the other Contracting Party.

 

Article 6

Qualification Requirements

 

        Where a Contracting Party imposes qualification requirements for the supply of a service, it shall ensure that adequate procedures exist for verification of qualifications of applicants of the other Contracting Party. In verifying qualifications of an applicant, the competent authorities shall, in addition to education, exams and other qualifications, give due consideration to relevant professional experience of the applicant. Where the competent authorities consider that membership in a relevant professional association or registry in the territory of the other Contracting Party is indicative of the level of competence or the extent of experience of the applicant, such membership shall also be taken into account.

 

Article 7

Licensing Procedures and Qualification Procedures

 

1. While recognising the need to take into account the nature of the requirements to be met and of the criteria to be assessed, each Contracting Party shall ensure that licensing procedures and qualification procedures, including where applicable those for renewal, are as simple as possible, reasonable and clear, and do not in themselves constitute a restriction on the supply of services. Each Contracting Party shall ensure that such procedures are not more burdensome than necessary for demonstrating compliance with the licensing requirements or, respectively, the qualification requirement for the supply of a service.

 

2. Each Contracting Party shall ensure that the procedures used by, and the related decisions of, the competent authorities in the licensing process or qualification process are impartial with respect to all applicants. In the case of licensing procedures, the competent authorities should be operationally independent of, and not accountable to, any supplier of the service for which the licence is required.

 

3. Each Contracting Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application in order to demonstrate compliance with licensing requirements or qualification requirements.
4. Each Contracting Party shall, to the extent practicable, accept applications in electronic format under the same conditions of authenticity as paper submissions.

 

5. Each Contracting Party shall, in accordance with its domestic law, accept authenticated copies in place of original documents.

 

6. Each Contracting Party shall ensure that fees in connection with the filling and review of an application for license^[1] and fees charged for qualification procedures are commensurate with the costs incurred by the competent authorities, including those for supervision of the relevant service.

 

7. Each Contracting Party shall, to the extent practicable, permit an applicant to submit an application for licensing or for verification of a qualification at any time.

 

8. Each Contracting Party shall ensure that examinations for the assessment of qualifications, if required:

(a)    are scheduled at reasonably frequent intervals;

(b)   are open for all eligible applicants of the Contracting Parties; and

(c)    provide the applicants a reasonable period for the submission of applications for examinations.

 

9. Each Contracting Party shall, to the extent practicable, establish the normal timeframe for the processing of an application.

 

10. Each Contracting Party shall ensure that the competent authorities:

(a)    initiate the processing of an application without undue delay; and

(b)   at the request of the applicant, provide without undue delay information concerning the status of the application.

 

11. The competent authorities shall, within a reasonable period of time after the receipt of an application which they consider incomplete:

(a)    inform the applicant that the application is considered incomplete;

(b)   to the extent practicable, identify the additional information required to complete the application; and

(c)    provide the applicant the opportunity to complete its application or, if appropriate, to submit a new application.

 

12. Each Contracting Party shall ensure that the processing of an application for licensing, including reaching a final decision, is completed within a reasonable period of time from the submission of a complete application. The applicant shall be informed of the final decision without undue delay. Each Contracting Party shall ensure that a licence is granted when all the applicable requirements have been fulfilled and, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.

 

13. Each Contracting Party shall ensure that the processing of an application for verification of a qualification is completed within a reasonable period of time from the submission of a complete application. Once the applicable qualification requirements have been fulfilled, the applicant shall without undue delay be informed and be authorised to supply the service, provided that any applicable requirements other than the applicable qualification requirement have also been fulfilled.

 

14. 14. If the competent authority rejects an application for licensing or for verification of a qualification, it shall:

(a)    inform the applicant without undue delay, and to the extent practicable in writing;

(b)   inform the applicant, upon request, of the reasons for rejection of the application and, where applicable, identify any deficiencies;

(c)    inform the applicant of the timeframe for any available review or appeal against the decision; and

(d)   permit the applicant to submit a new application within reasonable time limits, except, in the case of licensing procedures, where licences are limited in number, including in public tendering.

 

Article 8

Transparency

 

1. 1. Each Contracting Party shall publish promptly all measures of general application referred to in Article 1, as well as detailed information regarding these measures, through printed or electronic Where publication is not practicable, such information shall be made otherwise publicly available. This information shall include:

(a)    whether any authorisation, including renewal where applicable, is required for the supply of a service;

(b)   the official names, addresses and contact information of relevant competent authorities;

(c)    applicable licensing requirements and procedures, including criteria and fees;

(d)   applicable qualification requirements and procedures, including criteria and fees;

(e)    applicable procedures relating to appeals or reviews of decisions concerning applications for licenses and for the verification and assessment of qualifications;

(f)    applicable procedures for the monitoring and enforcement of the terms and conditions of licences and of the continued fulfilment of qualifications requirements, including procedures for informing service suppliers in case of non-compliance with such terms and conditions or requirements;

(g)   how, if made available, public involvement in the licensing process, such as hearings and opportunity for comment, is provided for; and

(h)   established timeframes, where applicable, for the processing of an application.

           

2. Each Contracting Party shall maintain or establish appropriate mechanisms for responding to enquiries from service suppliers of the Contracting Parties regarding its measures referred to in Article 1 of this Protocol.

 

3. Each Contracting Party shall endeavour to ensure that laws and regulations of general application it proposes to adopt in relation to matters falling within the scope of this Protocol are published in advance. Each Contracting Party should endeavour to provide reasonable opportunity for service suppliers of the Contracting Parties to comment on such proposed laws and regulations and to address collectively in writing substantive issues raised in the comments received.

 

Article 9

Entry into force

 

        This Protocol shall enter into force on the first day of the month following the date of receipt of the latter of the Contracting Parties’ written notifications, sent through diplomatic channels, confirming that their relevant domestic legal procedures necessary for the entry into force of this Protocol have been fulfilled.

 

Article 10

Amendments

 

        Any modification to this Protocol may be adopted by mutual written consent of the Contracting Parties. All modifications shall constitute an integral part of this Protocol. Any modification shall enter into force in accordance with the procedure set forth for the entry into force of this Protocol.

 

Article 11

Termination

 

1. Each Contracting Party may terminate this Protocol by written notification through diplomatic channels to the other Contracting Party. Termination of this Protocol shall take effect six months after receipt of the notification.

 

2. Unless otherwise agreed, termination of the Agreement on Trade and Economic Cooperation between the Government of the Republic of Kazakhstan and the Federal Council of Switzerland of 12 May 1994 shall, ipso facto, terminate this Protocol.

 

 

 

 

In witness whereof the undersigned plenipotentiaries, being duly authorised thereto, have signed this Protocol.

 

DONE at___, on ____ 20_____

in two originals, Kazakh, French and English, each text being equally authentic. In case of divergence, the English text shall prevail.

 

 

 

For the Government of the Republic of Kazakhstan

 

 

For the Federal Council of Switzerland

 

 

 

^[1]          Such fees do not include charges of the use of natural resources, payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal service provision.

Дата публикации

06 октября 2021