Trade and Mobility Agreements: Challenge and Opportunity ... · Trade and Mobility Agreements: Challenge and Opportunity for Professional Regulation? Presentation by André Gariépy,

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Commissaire aux plaintes en matière dereconnaissance des compétences professionnelles

Trade and Mobility Agreements: Challenge

and Opportunity for Professional Regulation?

Presentation by André Gariépy, Commissioner,at the 4th International Conference

of Dental Regulators

Genève, Suisse, 20th May 2016

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Presentation Outline

• The Office of the Commissioner

• Trade liberalization

• Trade in regulated professional services

• Multilateral trade negotiations

• Qualification recognition and MRA

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The Office of the Commissioner

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1. Receive and examine individual complaints concerning the recognition of competence by the regulatory bodies

2. Verify the mechanisms for recognition of competence (in a more systemic way compared to case-by-case)

3. Monitor the collaboration between the education and the professional systems (re: gap-training/bridging programmes and internships)

Functions-Mandate

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Functions-Mandate (cont.)

• Also responsible for overseeing the implementation by regulatory bodies of their obligations under applicable trade, mobility and mutual recognition agreements

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Trade Liberalization

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Trade Liberalization

• Vision from the world of trade– Free flow of goods/capital and free movement

of people allow the market to generate growth and prosperity for all.

– Professional regulation is an obstacle and outdated.

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Trade Liberalization

• Lifting barriers to circulation of goods and services– ‘Domestic regulation’, Technical barriers to

trade’, ‘Access to market rules’• Ideally, one regulation/standard… or none

– Including mobility of people and services providers and recognition of theirqualifications

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Trade Liberalization

• Trade agreements– Multilateral (ex. GATS-WTO 1995, Doha

Round ongoing)

– Regional (ex. Canada-US-Mexico 1994, European Union 1952 to date)

– Bilateral (ex. Canada-US 1987)

– Hybrid (ex. CETA-Canada-Europe 201?, TTIP-US-Europe 201?)

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Principles of Liberalization

• Common to all agreements

• Aligned with principles agreed at the multilateral level with WTO

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Principles of Liberalization

For a commercial environment:

1. Exempt from discrimination– Most favoured-nation and national treatment

2. With freer trade– Progressive approach through negotiation

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Principles of Liberalization

For a commercial environment (cont.):

3. Predictable– Transparency, stability of the regulatory

environment

4. Competitive– Fair competition, including government

subsidies

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Multilateral Trade Negotiations

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Multilateral Trade Negotiations on Services

• The Doha Round– The context at the beginning is no more

• Nature and relative importance of service sectors have evolved

• Producer and consumer markets have changed– Rise of the BRICS (Brazil, Russia, India, China,

South Africa)

• Should we end the Doha Round and start all over again?

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Multilateral Trade Negotiations on Services

• The Doha Round (cont.)– The notion of ‘services’ is encompassing too

many different sectors• Energy, telecommunications and professional

services under the same !?

• Challenge to find wording applicable to all services sectors (WTO Working Group on Domestic Regulation)

• Representatives from member countries don’t have all the knowledge on all sectors under negotiation

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Multilateral Trade Negotiations on Services

• Meanwhile…– Many regional or bilateral agreements with

qualification recognition and mobility clause• Ex.: Europe, ASEAN, CARICOM, East Africa, West

Africa, CETA, TTIP, TPP

• More similarities between signatories

• More susceptible to be effective because closer to the specifics of jurisdictions

– Trade in Services Agreement (TISA)

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Trade in RegulatedProfessional Services

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Trade in Regulated Professional Services

• A topic that has gradually gained importance over the last 30 years– Markets more active along globalization of

companies and organizations

– Strategic sectors with economic added-value

– Professional regulation suspected of protectionist agenda

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Trade in Regulated Professional Services

• Sectors that are more than markets to liberalize– Activities with risks (potential harm, ex.: health

services)

– Professional regulation is also a legitimate social justice policy

– Require a specific analysis and adapted solutions with regard to trade liberalization.

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Trade Agreements and Professional Regulation

• General objectives– Liberalize, to the extent possible

– Mutually recognize qualifications• For people and systems

– Treat the applications efficiently and in transparency

– Independent recourse (review, appeal)

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Trade Agreements and Professional Regulation

• Variable expectations toward liberalization– Wish

– Encouragement

– Prescriptive process and reporting (involvement and guidance by government in the process)

– Imposition of an outcome

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Trade Agreements and Professional Regulation

• Differences related to contexts could be legitimate and justify ‘local knowledge’ requirements (ex. NAFTA, and implicitly for others) — Institutions — Legal framework

— Organization — Culture

— Language — Geography

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Trade Agreements and Professional Regulation

• Uniform/global standard is not required– Except if appropriate (context specific to a

profession and the jurisdictions involved)

– WTO have tried to come up with global disciplines by profession, but process is cumbersome

– A more realistic view now

• But lowering transaction costs, harmonization and recognition encouraged

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Trade Agreements and Professional Regulation

• The standard/condition at the source of a different treatment must be justified– Legitimate objective

– Objective and transparent criteria

– Requirement based on competency and ability to provide the services

– No more burdensome than necessary

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Mutual Recognition Agreements

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Qualification Recognition

• A tool:– To implement the liberalization of trade in

professional services

– To respond to increasing migration for trade, academic or personal motives

• An increasing interest from the part of researchers and experts on migration and trade

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MRA• Mentioned in some trade agreements

– GATS, ASEAN, CARICOM– Weak implementation– Limited scope, often for temporary movement, under

supervision and for more experienced practitioners

• The Quebec-France Agreement (2008)– Umbrella agreement for MRAs for all regulated

professions and trades– Structured, government supervised, common process

of negotiating MRAs– Aiming at full licence recognition, with set

compensatory measures, where justified

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MRA• Appearing in the trade agreements under

negotiation– CETA (based on the Québec-France Agreement),

TTIP, TPP– More details, greater expectations and wider scope

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MRA• The case of Europe

– Strong in the institutions and in the decision-making process

• More than a trade agreement, a common market with political and legal frameworks

• Set of treaties and directives• A number of professions under mutual recognition

– But implementation is not up to expectations • Left to member states with some ‘flexibility’• Not all compliant• Under review and scrutiny

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Potential of MRA• Better identify and manage the substantial

differences between jurisdictions– Gap training and conditions justified and realistic – Transparency– Predictability – Objectivity– Fairness– Efficiency

• Foster a structured and respectful dialogue between jurisdictions

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Lessons Learned from MRA• Better results when partners are compatible

– Easier to generate a core set of requirements to work with, and reach harmonization and/or recognition• Education systems (training standards and quality)• Professional practice contexts• Regulation schemes (scope of practice,

assessment, professional conduct, ethics and development)

• Legal systems• Economies (comparable and/or complementary)• Cultural aspects

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Lessons Learned from MRA• Better results when partners are compatible

(cont.)– Otherwise, very broad principles and standards

• Low and less rigorous common denominator• Nice to have, but no real practical use to base a

recognition and migration scheme in the field

• Process facilitated when a forum is already in place– Ex.: EU, regional or multilateral forum, international

association – An advantage, but not a prerequisite

• Countries’ sovereignty or constitutional principles

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Lessons Learned from MRA• Prioritize according to reality

– Geography and else– More relevance and incentives where sizeable

economic ties and migration flows exist

• It takes time to– Understand the different contexts– Assess the impact, positive and negative– Get the buy-in from stakeholders– Negotiate and ratify– Implement

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Contact Info

André Gariépy, Lawyer, F.C.Adm.Commissioner for Complaints concerning the Recognition of Professional Competence

Telephone: +1 (514) 864-9744Email: [email protected]: www.opq.gouv.qc.ca/commissaire