Transcript s1 AFAS & GATS in a nutshell  IAPOA-UAP National Convention  Thursday, 18 April 2013, 3-4 pm  SMX Seminar Room X  Ar Armando N.

s1
AFAS & GATS
in a nutshell

IAPOA-UAP National Convention
 Thursday, 18 April 2013, 3-4 pm
 SMX Seminar Room X
 Ar Armando N. ALLÍ, apec ar
 Resource Person
1. The Philippine
Legal Framework
A Layman’s
Appreciation of
Philippine Laws and
Rules & Regulations
[Laws i.e. R.A.s, B.P.s (and the
P.D.s and E.O.s promulgated
when there was NO
functioning Congress) are all
Lower than the Philippine
Constitution and may also be
considered Lower Than
International Treaties/
Executive Agreements (such
as the 1994 GATS and the
1995 AFAS), which may have
the power of Law, only if duly
ratified by the Philippine
Senate or signed by the duly
authorized Executive Agents
of the State]
State-Ratified
International Treaties
and International
Executive Agreements
(with the effect of Law)
e.g. 1994 General
Agreement on Trade in
Services (GATS) and
the 1995 ASEAN
Framework Agreement
on Services (AFAS)
Jurisprudence (Supreme
Court Issuances such as Final
and Executory Decisions and
Resolutions that Have the
Overall Effect of Changing the
Law)
Executive Orders
(EOs), Administrative
Orders (AOs) and
Department Administrative
Orders (DAOs) are other
forms of Executive Issuances
that are also NOT laws but
are still tools to facilitate the
implement-ation and
enforcement of law)
Lower Court Orders
and Decisions (that
somehow have the Effect of
Amending (or Delaying) the
Proper (and/ or Timely)
Implementation and
Enforcement of the Law through
the IRRs and lower regulations
promulgated by Executive
Offices); however, such Lower
Court Issuances DO NOT have
the power to change the Law itself
A Layman’s Evolving Model
of the Hierarchy of Laws
(State Policies) and Rules and Regulations Affecting
the Distinct Practice of the State-regulated
Profession of ARCHITECTURE
in the Republic of the Philippines (PH) as of 18 April 2013
The Fundamental LAW of the Land:
The 1987 Constitution of the
Republic of the Philippines
1. Considered as General LAWS:
P.D. No. 1096 (The 1977 National Building Code of the Philippines/ NBCP);
2. Considered as Special LAWS:
R.A. No. 9266 (The Architecture Act of 2004),
R.A. No. 9514 (The 2008 Fire Code of the Philippines/ FCP); and
B.P. No. 344 (The 1983 Law on Access for the Disabled).
1. Implementing Rules and Regulations/ IRRs (which are only
Executive Issuances Used to Implement and Enforce the General Laws, but
are NOT by themselves regarded as laws):
2004 Revised IRR of P.D. No. 1096 (promulgated by the DPWH);
2. IRRs of Special LAWS
(also mere Executive Issuances that are NOT laws but are
the actual executive tools to implement and enforce the law):
IRR of R.A. No. 9266 (promulgated by the PRBoA,
Guidelines and Standards (based on IRRs)
P.D. No. 1096 Guidelines and DPWH Memoranda Circulars (MCs);
Various PRBoA Resolutions interpreting R.A. No. 9266 & its IRR;
2010 Standard of Professional Practice (SPP) for Architects
Manual/s of Procedure (MoP)
2. The 1995 AFAS
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The ASEAN Framework Agreement on Services (AFAS)
is an Agreement signed at Bangkok, Thailand on 15
December 1995 by The Governments of Brunei
Darussalam, the Republic of Indonesia, Malaysia, the
Republic of the Philippines, the Republic of Singapore,
the Kingdom of Thailand, and the Socialist Republic of
Vietnam, joined later by the Union of Myanmar (formerly
Burma), Lao People’s Democratic Republic (Laos) and the
Kingdom of Cambodia i.e. the Member States of the
Association of South East Asian Nations (ASEAN).
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
s4
3. The AFAS Objectives :
The three (3) objectives of the ASEAN Member States signing the
1995 AFAS were:
a) to enhance cooperation in services among the Member
States in order to improve efficiency and competitiveness,
diversify production capacity and supply and distribution of
services of their service suppliers (i.e. providers) within and
outside ASEAN; and
b) to eliminate substantially restrictions to trade in services
among the Member States; and
c) to liberalize trade in services by expanding the depth and
scope of liberalization beyond those undertaken by Member
States under the World Trade Organization (WTO) General Agreement
on Trade in Services (GATS), with the aim to realize a free trade area in
services.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
4. ASEAN MRA resulting from AFAS:
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In furtherance of the AFAS, the ASEAN Mutual Recognition
Arrangement (MRA) on Architectural Services was signed on 19
November 2007 by official representatives of the ASEAN Member
States, with the Department of Trade and Industry (DTI) Secretary
Peter B. Favila, signing on behalf of the Philippine (PH)
Government.
Thereafter, the ASEAN Architects Council (AAC) was organized, with each
ASEAN Member State tasked to organize their respective Monitoring
Committees (MCs) to work with their respective Professional Regulatory
Authority (PRA, if applicable). As of 2013, the PH is still organizing its MC to
subsequently qualify candidate - registered and licensed Architects (RLAs) for
the status of ASEAN Architect (AA), who shall be permitted to undertake
architectural services on an initially collaborative basis with the Architectnationals of the other ASEAN Member States the PH AA may wish to work in.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
5. The PH Monitoring Committee (MC):
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The PH MC will be composed of five (5) members: one (1)
Commissioner of the Professional Regulation Commission (PRC),
two (2) from the Professional Regulatory Board of Architecture
(PRBoA, to be called the PRB for Architecture), one (1)
Commissioner from the Commission on Higher Education (CHED),
and the National President of the integrated and accredited
professional organization of architects (IAPOA).
While year 2015 has been set as the date for the rollout of the
ASEAN Architect program (where collaboration with Architectnationals of Member States is the accepted mode of cross-border
architectural practice), the year 2020 is also set as the year for the
attainment of full liberalization in the trade in architectural services
to meet the WTO GATS target rollout date.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
6. Are There PH AAs at this Time?
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There are still no PH ASEAN Architects (AAs)
to date while 3 ASEAN Member States already
have scores of AA-nationals, who, after due
accreditation by the PH MC, may soon have the
opportunity to practice architecture on PH soil
(on an initially collaborative basis from 2015
through 2020).
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
7. The 1994 WTO GATS:
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The General Agreement on Trade in Services (GATS) is
the first set of multilateral rules covering international
trade in services. It came into effect in 1995 and is
continually negotiated under the auspices of World Trade
Organization (WTO), based in Switzerland. GATS
establishes the trade rules governing cross-border trade
in services for WTO Member Countries i.e. rules that are
supposed to make it easier for services and service
providers to move from one country to another. Failure
of any WTO member to adhere to GATS rules may open them up to
dispute settlement proceedings in the WTO, or even a trade war
with sanctions.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
8. GATS Parts & Service Sectors:
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The GATS has three (3) main parts: 1) the main text with
general principles and obligations; 2) the annexes with
rules for specific sectors; and 3) the Member countries'
specific commitments to provide access to their
markets.
GATS covers twelve (12) service sectors with tradable
services: 1) Business (where Professional Services
such as Architectural Services fall under); 2)
Communication; 3) Construction (and Engineering); 4) Distribution;
5) Education; 6) Environment; 7) Financial; 8) Health; 9) Tourism
and Travel; 10) Recreation, Cultural, and Sporting; 11) Transport;
and 12) Other.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
9. The 4 Modes of Service under GATS
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The GATS covers four (4) modes of supply for the delivery of services in
cross-border trade:
Mode
Criteria
Supplier Presence
Mode 1:
Cross-border
supply
Service delivered within the territory of the Member
(Country A), from the territory of another Member
(Country B/ say PH)
Service supplier not
present within the territory
of the Member (Country A)
Mode 2:
Consumption
abroad
Service delivered outside the territory of the Member
(Country A), in the territory of another Member
(Country B/ say PH), to a service consumer of the
Member (Country A)
Service supplier (from
Country B/ say PH) not
present within the territory
of the Member (Country A)
Mode 3:
Commercial
presence
Service delivered within the territory of the Member
(Country A), through the commercial presence (in
Country A) of the supplier (from Country B/ say PH)
Service supplier (from
Country B/ say PH) present
within the territory of the
Member (Country A)
Mode 4:
Presence of a
natural person
Service delivered within the territory of the Member
(Country A), with supplier (from Country B/ say PH)
present as a natural person (in Country A)
Service supplier present
within the territory of the
Member (Country A)
Note: From the document MTN.GNS/W/124, available on the World Trade Organization Website, posted courtesy of ISTIA
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
10. APEC takes off from WTO:
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In furtherance of the WTO objectives, the Asia-Pacific Economic
Cooperation (APEC) was established in 1989 as a forum for twenty one (21)
Pacific Rim countries (i.e. formally Member Economies or MEs), that seeks to
promote free trade and economic cooperation throughout the Asia-Pacific
region. It was created in response to the growing interdependence of AsiaPacific economies and the advent of regional trade blocs in other parts of the
world (EU, NA, etc.). The 21 APEC economies are Australia, Brunei*, Canada, Hong
Kong, Indonesia*, Japan, South Korea, Malaysia*, Mexico, New Zealand, PROC (China),
Papua New Guinea, Peru, Philippines*, Russia, Singapore*, Taiwan, Thailand*, USA, Vietnam.
(*Note: Part of the ASEAN and signatory to AFAS). The countries of Chile, Panama, Costa
Rica, Nicaragua, Honduras, El Salvador, Guatemala, Colombia, Ecuador, Cambodia, Macau,
North Korea, and the many Pacific island nations are all still excluded from the count.)
APEC is a cooperative association of regional economies i.e. not bound by
a treaty. Although MEs are guided by APEC objectives and the GATS
principles that inform them, decisions taken by the APEC Central Council are
reached by consensus i.e. they do not place a mandatory obligation on any
Member Economy.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
11. The APEC Architect Project
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The APEC Architect Project was an initiative of the APEC Human Resources
Development Working Group (HRDWG), one of a number of sectoral groups
established to implement APEC programs. The Project was endorsed by the
HRDWG at its year 2000 meeting in Brunei as a direct response to the Group’s
strategic priority of facilitating mobility of qualified persons by developing a
means for the mutual recognition of skills and qualifications. The participating
APEC Member Economies were thereafter tasked to organize their respective
Monitoring Committees (MCs), and in the case of the Philippines (PH), to qualify
candidate - registered and licensed Architects (RLAs) for the status of APEC
Architect, who shall be permitted to undertake architectural services on an
initially collaborative basis with the Architect-nationals of the other APEC
Member Economies the PH APEC Architect may wish to work in. Collaboration,
which is a function of local regulation by a Member Economy such as the PH, is
viewed as an interim modification of Modes 2, 3 and 4, and therefore does not
yet represent full trade liberalization. The year 2020 is set as the year for the
attainment of full liberalization in the trade in architectural services.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
12. 44 PH APEC Architects (apec ars)
s13
There are already forty four (44) PH APEC Architects to date, with the rest of
the APEC Member Economies already having scores (if not hundreds) of
APEC Architect-nationals, who, after due accreditations by the PH MC, may
soon have the opportunity to practice architecture in the PH on a
collaborative basis. If given sufficient National Government support, the 44
PH APEC Architects may also be given similar opportunities to penetrate the
markets of thirteen (13) other participating APEC Member Economies i.e.
Australia, Canada, People’s Republic of China (PROC), Hong Kong (China),
Japan, Republic of Korea, Malaysia, Mexico, New Zealand, Singapore,
Chinese Taipei, Thailand and the USA.
As of 2012, other bilateral and multilateral agreements pertaining to crossborder architectural services are being considered between the PH
Government and the European Community (EC), as well as parts of Oceania
(mainly Australia and New Zealand).
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
13. R.A. No. 9266 and Foreign Architects (FAs)
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a. Sec. 38 of R.A. No. 9266 (The Architecture Act of 2004)
mandates that FAs doing projects on Philippine soil must
secure a temporary/ special permit (TSP); the same section
also states that a PH-registered and licensed Architect (RLA)
must partner with a FA if the FA is to work on an architectural
project on Philippine soil i.e. collaboration;
b. PRBoA already promulgated a 2007 Resolution detailing the
procedure for FAs to secure such a TSP from the PRC;
c. all FAs now doing projects on Philippine soil without a TSP
may thus be illegally practicing architecture, and may have
incurred criminal liabilities, together with their Filipino
employers, clients and RLAs working with them; and
d. all of the above will need to change to accommodate AFAS/
ASEAN MRA and the WTO GATS in the next 7 years.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
14. Present Local Practice by Foreign Architects (FAs)
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a. APEC Architect Register, initially via a collaborative mode (whereby a
Filipino registered and licensed Architect (RLA) must partner with a FA (APEC Architect) if
the FA is to work on an architectural project on Philippine soil);
b. ASEAN Mutual Recognition Arrangement (MRA), also via collaboration;
c. Reciprocity on the basis of absolute terms of equality in academic
and/or training credential evaluation, licensure and certification i.e. as
provided by the pertinent laws;
d. Other Modes (including electronic or virtual practices subject to the
application of Philippine laws such as the Electronic Commerce Act and
R.A. No. 9266, and other practice modes by/ for FAs still to be discovered,
proposed, developed or agreed upon by the countries concerned); under
this category falls the illegal practice of FAs collaborating with non-RLAs such
as the concerned CEs and other RLPs/ entities (non-registered persons);
e. Only FAs as as natural persons, and NOT as firms or juridical entities are issued
Temporary/ Special Permits (TSPs) to work in the Philippines; and
f. Duly-qualified BPO or KPO firms engaged in the provision of architectural services
must be registered with the DTI/ SEC and with the PRC/ PRBoA as mandated under law.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
15. What Could RLAs Do Between Now and 2020?
s16
a. Specialize and diversify RLA Practices i.e. through voluntary Continuing
Professional Education (CPE), specialization training and certification,
graduate and post-graduate studies (possibly through the CHED ETEEAP
and open learning), research, service or product development and the like;
b. Collaborate with FAs on work either in the PH or overseas;
c. Market RLA services using various cost-efficient media e.g. internet,
phone, SMS, market collateral, trade expositions, trade magazine features
and the like; and
d. Engage in advocacy work and cooperate with the Government to
develop and strengthen safety nets for RLAs i.e. GATS-compliant (and
possibly not protectionist), but also in full compliance with the Philippine
Constitution and other applicable international and PH law. These may
include the passage of new laws and regulations that may not deal directly
with professional architectural services e.g. procurement, taxation,
immigration, etc.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
16. PH RLA Practice Scenario Under GATS
s17
a. GATS is widely perceived by RLAs to be able to complement the Local
Practice of FAs under the APEC Architect Register, ASEAN MRA,
reciprocity and other modes of cross-border service supply;
b. Many RLAs shall offer various forms of architectural services to foreign
clients by doing the work right here in the Philippines;
c. More knowledge process outsourcing (KPO) firms engaged in the
provision of architectural services for overseas projects are expected to
base in the Philippines; RLAs must preferably oversee such operations;
d. since a FA may practice under GATS without an RLA, such FAs, in their
individual/ personal capacities must assume the requisite responsibilities,
undertakings and liabilities as a natural person (and NOT as a juridical
person) under Philippine civil law (for a period of from 15 to 25 years); and
e. Locally-secured Professional Liability Insurance (PLI) can only cover FA
professional responsibility and possible civil liability up to a certain extent.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
17. Current International Architectural Practice
Opportunities Outside AFAS and GATS
a.
b.
c.
d.
s18
Consulting opportunities as Architect or as
Physical Planner for projects of the ADB, WB,
USAID, EU, AA, CA, UN, etc.;
Consulting opportunities as Architect or as
Physical Planner for projects under bilateral or
multilateral agreements of the PH with other
countries, etc.;
Consulting opportunities as Architect or as
Physical Planner for projects of private enterprises/
ventures, collaborations, etc.; and
Projects out of international archl competitions.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
18. Comparative Compensation Expectations
for Work Done Outside of AFAS and GATS
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a.
Possibly from USD 2,500.00 up to 6,500.00 (PhP102,500.00 to
266,500.00 per person-month of 22 work days) for international
agency architectural consulting work done in the PH by a duly
qualified and sufficiently/ suitably experienced RLA as an
international Architect and/or Physical Planner; these rates can
increase by 1.5 to 1.7 times for a foreign posting/ stay of the RLA
(consulting work done in another country);
b.
Up to USD 10,000.00 (PhP410,000.00) per month for a senior teaching position for
tertiary instruction (baccalaureate) for an architecture program in the Middle East;
Possibly from 50% to 75% of above rates for in-house architectural work done for
international private firms under a service contract (PH or foreign posting); and
Possibly up to USD36,500.00 (PhP1.5 M) as Architect-of-record (Aor) for an
international project on PH soil, for every USD24.4M (PhP1.0B) Project cost of the
architectural project i.e. without an international professional liability insurance
(PLI) coverage for the PH RLA; this shall be considerably lower if PLI is made
available for the PH RLA.
c.
d.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
19. What Must Happen to R.A. No. 9266
with (before) the AFAS and GATS Rollouts?
s20
Certain provisions of R.A. No. 9266 (specifically
Sec. 38) must be amended to reflect specific
agreements/ arrangements entered into by the PH
Government under AFAS and GATS. Reciprocity
arrangements/ standards may become the premier
mode of establishing equivalencies among FAs
(and between RLAS and FAs). To further protect
RLAs, immigration policies (particularly by
countries such as the USA) must be reciprocally
applied i.e. USA and PH immigration requirements
must be equal (and applied equally).
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
20. What Can Happen if the Matter of the Signing/
Sealing of Architectural Documents is Not
Resolved with Finality by the Supreme Court and
the AFAS and GATS are rolled out?
1.
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Unregistered persons (UPs) defined under R.A. No. 9266,
such as other registered and licensed professionals
(RLPs), specifically the concerned civil engineers (CEs)
will continue to ply their nefarious practices/ trade and
some unscrupulous RLPs/ concerned CEs may even
attempt to enter into architectural collaborations with FAs
and AAs (both ASEAN Architects and APEC Architects
from other countries); and
2. As penalties apply for the FAs and AAs who will succumb
to these entreaties, the FAs/AAs shall be drawn into the
legal controversy between RLAs andAFAS
the& GATS
concerned
CEs.
Ar Armando N. ALLI, apec ar for the 2013 UAP National Convention
in a nutshell, 18 April 2013
s22
2015 and 2020 are the years
to watch out for.
RLAs must prepare for the
coming of more FAs and must
now take immediate steps to try
to penetrate the markets
of said FAs. Good luck to us all.
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013
s23
Thank You
and a
Pleasant Afternoon to All
Ar Armando N. ALLI, apec ar
for the 2013 UAP National Convention
AFAS & GATS in a nutshell, 18 April 2013