Proclamation Giving Notice that the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China Comes into Force on January 1, 2017 (SI/2016-71)

Agreement on Social Security Between the Government of Canada and the Government of the People’s Republic of China

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA,

COMMITTED to develop friendly relations between Canada and the People’s Republic of China (hereinafter referred to as the Contracting States),

RESOLVED to co-operate in the field of social security,

HAVE DECIDED to conclude an agreement for this purpose, and

HAVE AGREED as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

• 1 For the purposes of this Agreement:

  competent agency

  competent agency means,

  for Canada, the departments or agencies that are responsible for the application of the legislation of Canada; and

  for the People’s Republic of China, the Social Insurance Administration of the Ministry of Human Resources and Social Security or other bodies designated by that Ministry;

  competent authority

  competent authority means,

  for Canada, the Minister or Ministers that are responsible for the application of the legislation of Canada; and

  for the People’s Republic of China, the Ministry of Human Resources and Social Security;

  legislation

  legislation means,

  for Canada, the laws and regulations specified in Article 2; and

  for the People’s Republic of China, the laws, the administrative, ministerial, and local rules and regulations, and the other legal documents concerning the social insurance systems specified in Article 2.

• 2 A term not defined in this Article has the meaning assigned to it in the legislation of the respective Contracting States.

ARTICLE 2Legislative Scope

• 1 For the People’s Republic of China, this Agreement applies to the legislation related to the following schemes:

  • (a) Basic Old-Age Insurance for Employees; and

  • (b) Basic Old-Age Insurance for Urban and Rural Residents.

• 2 For Canada, this Agreement applies to the following legislation:

  • (a) the Old Age Security Act and the regulations made thereunder; and

  • (b) the Canada Pension Plan and the regulations made thereunder.

• 3 This Agreement also applies to laws and regulations that amend, supplement, consolidate, or supersede the legislation specified in paragraphs 1 and 2. However, this Agreement does not apply to an amendment that establishes a new social security scheme, unless the competent authorities of the Contracting States jointly decide to apply that amendment.

• 4 Unless otherwise provided in this Agreement, the legislation referred to in this Article does not include other treaties or international agreements on social security that may be concluded between one Contracting State and a third State, or laws and regulations that are promulgated to implement those other treaties or international agreements.

ARTICLE 3Personal Scope

This Agreement applies to any person who is or who has been subject to the legislation of one or both Contracting States, and to any person who derives rights from that person under the applicable legislation of either Contracting State.

ARTICLE 4Equality of Treatment

A Contracting State shall treat all persons to whom this Agreement applies equally in regard to rights and obligations that arise under the legislation of that Contracting State or under this Agreement.

PART IIProvisions Concerning the Applicable Legislation

ARTICLE 5General Rules for Employed and Self-Employed Persons

Except as otherwise provided in Articles 6 to 9:

• (a) an employed person who works in the territory of a Contracting State is, in respect of that work, subject only to the legislation of that Contracting State;

• (b) self-employed person who resides in the territory of a Contracting State and who works for his or her own account in the territory of the other Contracting State or in the territories of both Contracting States is, in respect of that work, subject only to the legislation of the first Contracting State.

ARTICLE 6Detachments

• 1 A person who:

  • (a) is employed by an employer with a place of business in the territory of one Contracting State;

  • (b) is covered under the legislation of that Contracting State in respect of that employment; and

  • (c) is sent to work in the territory of the other Contracting State in the course of that employment,

  is, in respect of that work, subject only to the legislation of the first Contracting State as though that work were performed in its territory. The maximum period of that detachment is 72 months.

• 2 If the detachment continues beyond the period specified in paragraph 1, the legislation of the first Contracting State continues to apply, provided that the competent authorities or competent agencies of the Contracting States consent.

ARTICLE 7Crews of Ships and Aircrafts

A person who is subject to the legislation of both Contracting States in respect of employment as a member of the crew of a ship or aircraft shall, in respect of that employment, be subject only to the legislation of the Contracting State where that person resides.

ARTICLE 8Government Employment

• 1 Notwithstanding this Agreement, the provisions regarding social security of the Vienna Convention on Diplomatic Relations of 18 April 1961 and the Vienna Convention on Consular Relations of 24 April 1963 continue to apply.

• 2 For the People’s Republic of China, if a person employed by the central or local government, or any other public institution, is subject to the legislation of the People’s Republic of China and is sent to work in the territory of Canada, that person is, with respect to that employment, subject only to the legislation of the People’s Republic of China.

• 3 For Canada, if a person in government employment is subject to the legislation of Canada and is sent to work in the territory of the People’s Republic of China, that person is, with respect to that employment, subject only to the legislation of Canada.

ARTICLE 9Exceptions

The competent authorities of the Contracting States may jointly grant an exception to the application of Articles 5 to 8 with respect to any person or categories of persons, if that person is subject to the legislation of either Contracting State.

ARTICLE 10Definition of Certain Periods of Residence under the Legislation of Canada

• 1 For the purposes of the Old Age Security Act:

  • (a) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of presence or residence in the People’s Republic of China, that period is considered a period of residence in Canada for that person; it is also considered to be a period of residence in Canada for that person’s spouse or common-law partner and dependants who reside with that person and who are not subject to the legislation of the People’s Republic of China by reason of employment or self-employment;

  • (b) if a person is subject to the legislation of the People’s Republic of China during any period of presence or residence in Canada, that period for that person, and for that person’s spouse or common-law partner and dependants who reside with that person will be determined according to the provisions of Canadian legislation.

• 2 For the purposes of paragraph 1, Canada:

  • (a) shall consider that a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during a period of presence or residence in the People’s Republic of China only if during that period that person makes contributions pursuant to the plan concerned by reason of employment or self-employment;

  • (b) shall consider that a person is subject to the legislation of the People’s Republic of China during a period of presence or residence in Canada only if during that period that person makes compulsory contributions pursuant to that legislation by reason of employment or self-employment.

PART IIIAdministrative and Miscellaneous Provisions

ARTICLE 11Administrative Arrangement

• 1 The competent authorities of the Contracting States shall conclude an administrative arrangement that establishes the measures necessary to apply this Agreement.

• 2 In the administrative arrangement, the competent authorities of each Contracting State shall designate a liaison agency.

ARTICLE 12Exchange of Information

• 1 A Contracting State, through its competent authority or competent agency responsible for the application of this Agreement shall:

  • (a) to the extent permitted by its laws, communicate to the other Contracting State any information necessary for the application of this Agreement and the legislation to which this Agreement applies;

  • (b) promptly communicate to the other Contracting State all information about the measures it takes to apply this Agreement or about changes in its legislation that affect how it applies this Agreement.

• 2 Unless disclosure is required under the laws of a Contracting State, any information about a person that is transmitted from one Contracting State to the other Contracting State in accordance with this Agreement is confidential and is used only to implement this Agreement and the legislation to which this Agreement applies. Any information about a person that is obtained by the receiving Contracting State may not be disclosed subsequently to any other person, body or country unless the sending Contracting State is notified and considers it advisable and the information is disclosed only for the same purpose for which it was originally disclosed.

ARTICLE 13Exemption or Reduction of Dues, Fees or Charges

• 1 If one Contracting State’s legislation provides that a person is exempt from paying all or part of a legal, consular, or administrative fee for a certificate or document that is required to apply that legislation, the same exemption applies to any fee for a certificate or document that is required to apply the legislation of the other Contracting State.

• 2 Any documents of an official nature required for the application of this Agreement are exempt from requirements for authentication by diplomatic or consular authorities or a third party.

ARTICLE 14Language of Communication

• 1 For the application of this Agreement, the competent authorities and competent agencies of the Contracting States may communicate directly with one another in any official language of either Contracting State.

• 2 A Contracting State shall not reject a document on the sole basis that the document is in an official language of the other Contracting State.

ARTICLE 15Resolution of Disputes

• 1 The competent authorities of the Contracting States shall resolve, to the extent possible, any disputes which arise in interpreting or applying this Agreement, in accordance with the spirit and fundamental principles of this Agreement.

• 2 The Contracting States shall promptly settle through negotiations any dispute that is not resolved in accordance with paragraph 1.

ARTICLE 16Understandings with a Province of Canada

The relevant authority of the People’s Republic of China and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada if those understandings are not inconsistent with this Agreement.

PART IVTransitional and Final Provisions

ARTICLE 17Transitional Provision

If a person begins a detachment before the date of entry into force of this Agreement, the period of the detachment for the purposes of Article 6 begins on the date of entry into force of this Agreement.

ARTICLE 18Entry into Force, Duration and Termination

• 1 Each Contracting State shall notify the other by diplomatic note that it has completed the internal legal procedures necessary for the entry into force of this Agreement. This Agreement enters into force on the first day of the fourth month following the month in which the later note is received.

• 2 This Agreement remains in force indefinitely. A Contracting State may terminate it at any time by giving 12 months’ notice, in writing, through diplomatic channels to the other Contracting State.

• 3 If this Agreement is terminated, any right acquired by a person in accordance with its provisions is maintained.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in duplicate at Ottawa this 2nd day of April 2015, in the English, French, and Chinese languages, each version being equally authentic.