第一节 国际服务贸易
Section 1 International Trade in Services
【The Fundamental】
Trade in services refers to the sale and delivery of an intangible product, called a service, between a producer and consumer. Trade in services takes place between a producer and consumer that are, in legal terms, based in different countries, or economies, this is called International Trade in Services. The rules on services are now found principally in the General Agreement on Trade in Services (GATS) and in the agreements creating certain regional economic organizations such as the European Union and the North American Free Trade Area.
A. General Agreement on Trade in Services (GATS)
1. Historical Background.
The General Agreement on Trade in Services (GATS) is the first multilateral trade agreement to cover trade in services. Its creation was one of the major achievements of the Uruguay Round of trade negotiations, from 1986 to 1993. This was almost half a century after the entry into force of the General Agreement on Tariffs and Trade (GATT) of 1947[1], the GATS’ counterpart in merchandise trade.
The need for a trade agreement in services has long been questioned. Large segments of the services economy, from hotels and restaurants to personal services, have traditionally been considered as domestic activities that do not lend themselves to the application of trade policyconcepts and instruments. Other sectors, from rail transport to telecommunications, have been viewed as classical domains of government ownership and control, given their infrastructural importance and the perceived existence, in some cases, of natural monopoly situations. A third important group of sectors, including health, education and basic insurance services, are considered in many countries as governmental responsibilities, given their importance for social integration and regional cohesion, which should be tightly regulated and not be left to the rough and tumble of markets.
Some services sectors, in particular international finance and maritime transport, have been largely open for centuries as the natural complements to merchandise trade. Other large sectors have undergone fundamental technical and regulatory changes in recent decades, opening them to private commercial participation and reducing, even eliminating, existing barriers to entry. The emergence of the Internet has helped to create a range of internationally tradable product variants, from e-banking to distance learning, that were unknown only two decades ago, and has removed distance-related barriers to trade that had disadvantaged suppliers and users in remote locations (relevant areas include professional services such as software development, consultancy and advisory services, etc.). A growing number of governments have gradually exposed previous monopoly domains to competition; telecommunication is a case in point.
The traditional framework of public service increasingly proved inappropriate for operating some of the most dynamic and innovative segments of the economy, and governments apparently lacked the entrepreneurial spirit and financial resources to exploit fully existing growth potential.
Given the continued momentum of world services trade, the need for internationally recognized rules became increasingly pressing.
2. Basic Purpose and Scheme of GATS.
The GATS came into effect on January 1, 1995, as one of the three main multilateral annexes to the Marrakesh Agreement Establishing the World Trade Organization[2]. As stated in its Preamble, the purpose of the GATS is to contribute to trade expansion under conditions of transparency and progressive liberalization and as a means of promoting the economic growthof all trading partners and the development of developing countries. Trade expansion is thus not seen as an end in itself but as an instrument to promote growth and development. The link with development is further reinforced by explicit references in the Preamble to the objective of increasing participation of developing countries in services trade and to the special economic situation and the development, trade and financial needs of the least-developed countries. The GATS’ contribution to world services trade rests on two main pillars:(a) ensuring increased transparency and predictability of relevant rules and regulations, and(b) promoting progressive liberalization through successive rounds of negotiations. Within the framework of the Agreement, the latter concept is tantamount to improving market access and extending national treatment to foreign services and service suppliers across an increasing range of sectors. Rather, the Agreement explicitly recognizes governments’ right to regulate, and introduce new regulations, to meet national policy objectives and the particular need of developing countries to exercise this right.
The GATS is made up of three interrelated components: (a) the Agreement itself (often called the Framework Agreement), which contains the rules applicable to all member states of the World Trade Organization, (b) the sectoral annexes that deal with issues unique to particular economic sectors, and (c) the national Schedules of Specific Commitments each member state has agreed to undertake, which were agreed to mainly through negotiations undertaken as part of the Uruguay Round of Multilateral Trade Negotiations.
3. Basic Contents of GATS.
(1) Definition of Services Trade and Modes of Supply
The Framework Agreement covers all trade in services in any sector except those supplied in the exercise of governmental functions; however, the Agreement does not define either service or service sector. It does so in terms of “modes of supply” in Part I. Four modes are described: (a) Cross-border: the cross-border supply of services that do not require the physical movement of either the supplier or the consumer (such as distance training),(b) Consumption abroad: the supply of services that require the consumer to go to the supplier(such as tourism), (c) Commercial presence: services supplied by a service supplier from one member state by means of a commercial presence in another member’s territory (such as banking), and (d) Movement of natural persons: services supplied in the territory of a member state by a service supplier from another member state by means of the temporary presence of natural persons of another member state (such as construction or consulting work). Commercial linkages may exist among all four modes of supply. For example, a foreigncompany established under mode (c) in country A may employ nationals from country B(mode (d)) to export services cross-border into countries B, C, etc. Similarly, business visits into country A (mode (d)) may prove necessary to complement cross-border supplies into that country (mode (a)) or to upgrade the capacity of a locally established office (mode (c)).
Part II of the Framework Agreement sets down the basic principles-MFN, transparency[3], and avoidance of abuse of dominant position. Part III then provides for specific commitments by sector for market access[4]and national treatment[5]. The remaining parts provide for periodic negotiating rounds, binding or unbinding of schedules, dispute settlement by recourse to the Understanding on Rules and Procedures Governing the Settlement of Disputes[6], and creation of a Council on Trade in Service[7].
(2) Scope and Application
The GATS applies to measures by its members affecting trade in services (Article I: 3). It does not matter in this context whether a measure is taken at central, regional or local government level, or by non-governmental bodies exercising delegated powers. The relevant definition covers any measure, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form in respect of: (a) the purchase, payment or use of a service; (b) the access to and use of, in connection with the supply of services which are required by those Members to be offered to the public generally; (c) the presence, including commercial presence, of persons of a member for the supply of a service in the territory of another member. This definition is important to familiarize staff at all levels with basic concepts of the GATS to prevent them from acting, unintentionally, in contravention ofobligations under the Agreement and enable them to negotiate effectively with trading partners.
For purposes of structuring their commitments, WTO members have generally used a classification system comprised of 12 core service sectors (Business Services; Communication Service; Construction and Related Engineering Services; Distribution Services; Educational Services; Environmental Services; Financial Services; Health-related and Social Services; Tourism and Travel-related Services; Recreational, Cultural and Sporting Services; Transport Services; Other Services not Included Elsewhere).These sectors are further subdivided into a total of some 160 sub-sectors. Under this classification system, any service sector may be included in a member’s schedule of commitments with specific market access and national treatment obligations. Each WTO member has submitted such a schedule under the GATS.
There is only one sector-specific exception to the Agreement’s otherwise comprehensive coverage. Under the GATS Annex on Air Transport Services, only measures affecting aircraft repair and maintenance services, the selling and marketing of air transport services, and computer reservation system (CRS) services have been included. Measures affecting air traffic rights and directly-related services are excluded. This exclusion is subject to periodic review. Another blanket exemption applies to “services supplied in the exercise of governmental authority” (Article I: 3b). The relevant definition specifies that these services are “supplied neither on a commercial basis, nor in competition with one or more service suppliers” (Article I: 3c). Typical examples may include police, fire protection, monetary policy operations, mandatory social security, and tax and customs administration.
(3) General Obligations and Disciplines
Two general principles in the Framework Agreement apply to all WTO member states:(a) most-favored-nation (MFN) treatment and (b) transparency. The most-favored-nation treatment (Article II) provides that each member shall accord immediately and unconditionally to services and services suppliers of any other member treatment no less favorable than that it accords to like services and services suppliers of any other country.
Given strong government involvement in many service markets for various reasons, including social policy objectives or the existence of natural monopolies—the GATS seeks to ensure that relevant measures do not undermine general obligations, such as MFN treatment or specific commitments in individual sectors. Thus, each member is required to ensure, in sectors where commitments exist, that measures of general application are administered impartially and in a reasonable and objective manner (Article VI:1). Service suppliers in allsectors must be able to use national tribunals or procedures in order to challenge administrative decisions affecting services trade (Article VI: 2a). During the Uruguay Round negotiations, the representatives of service industries in a number of industrialized nations opposed binding and unconditional MFN treatment on the ground that the level of market openness at that time varied too greatly among countries. They argued that unconditional MFN treatment would allow states with restrictive laws governing services to keep those laws in places while their own service suppliers would get a “free ride” into the markets of states with more than open laws. To force states with closed markets to open them, the service industries representatives successfully advocated the use of MFN exemptions. An annex was added to the GATS that (a) allowed the original WTO member states to submit a list of MFN exemptions that became effective when GATS came into force and (b) provide that any later applications for exemptions will be considered using the ordinary WTO waiver procedures[8]. The MFN exemptions are to be limited in time lasting no longer than ten years and subject to periodic review and to negotiations in future rounds.
Sufficient information about potentially relevant rules and regulations is critical to the effective implementation of the Agreement. The transparency provision in Article Ⅲof the Framework Agreement requires member states to publish promptly “all relevant measures of general application” that affect operation of the Agreement. Members must also notify the Council for Trade in Services of new or changed laws, regulations or administrative guidelines that significantly affect trade in sectors subject to Specific Commitments. These transparency obligations are particularly relevant in the services area where the role of regulation-as a trade protective instrument and/or as a domestic policy tool-tends to feature more prominently than in most other segments of the economy. Members also have a general obligation to establish an enquiry point to respond to requests from other Members. Moreover, developed countries(and other Members to the extent possible) are to establish contact points to which developing country service suppliers can turn for relevant information.
In addition to its core obligations of MFN treatment and transparency, the framework Agreement establishes other general criteria governing trade in services.
(a) Increasing Participation of Developing Countries. To encourage the participation ofdeveloping countries, GATS authorizes developed and developing countries to enter into negotiations similar to those that produced GATT’s General System of Preferences[9]and South-South Preferences[10]targeted at improving the capacity, efficiency, and competitiveness of the developing countries (Article IV:1a).
(b) Recognition. Notwithstanding the MFN requirement, Article VII of the GATS provides scope for members, when applying standards or granting licenses, certificates, etc., to recognize education and other qualifications a supplier has obtained abroad. This may be done on an autonomous basis or through agreement with the country concerned. However, recognition must not be exclusive, i.e. other members are to be afforded an opportunity to negotiate their accession to agreements or, in the event of autonomous recognition, to demonstrate that their requirements should be recognized as well. Article VII: 3 requires that recognition not be applied as a means of discrimination between trading partners or as a disguised trade restriction.
(c) Regional Economic Integration. The GATS seeks to encourage regional economic integration both in trade in services and in the movement of labor. A service integration agreement among member states is required to have substantial sectoral coverage and must provide for the elimination of all or substantially all discrimination among the parties in the sectors it covers (Article V:1b).The participating states parties have to “notify” the Council for Trade in Services of their proposed agreement for the Council’s review and approval.
(d) Domestic Regulations. The GATS requires its member states to ensure that their domestic regulations affecting trade in services are administered in a reasonable, objective, and impartial manner. It forbids them from applying their existing licensing, qualification requirements, and technical standards in a burdensome, restrictive, or nontransparent manner; and, as soon as the Council for Trade in Services adopts harmonizing guidelines in these areas, it will require them to bring their practices into compliances with those guidelines (Article VI: 1,4 and 5).
(e) Monopolies and Business Practices. A member states may grant monopoly rights to a service supplier, but in doing so, it must not allow the supplier to act in a manner inconsistent with the MFN obligation and its specific commitments (Article VIII: 1). As for other business practices which restrain competition and thereby restrict trade in services, the GATS requires each member state to consult with any other member states with a view to eliminating such practices (Article IX: 2).
(f) Exceptions. The GATS further contains exception clauses for particular circumstances. Regardless of relevant GATS obligations, members are allowed in specified circumstances to restrict trade in the event of serious balance-of-payments difficulties (Article XII) or of health and other public policy concerns (Article XIV), or to pursue essential security interests(Article XIV bis ).
(4) Specific Commitments
The GATS is designed to open up specific service sectors of the WTO member states’markets to international access on a sector-by-sector and a state-by-state basis. Following negotiations or on its own initiative, a member is to submit a Schedule of Specific Commitments for annexation to the GATS that lists the sectors or subsectors it is opening to market access (Article XX: 1), which is defined as giving services and services suppliers of other members “treatment no less favorable” than that listed in the member’s Schedule (Article XVI: 1). The member must also list limitations that apply to these sectors and it must do so as to six categories of limitations if it wants those to apply. The categories of limitations must either list or not apply are limitations on (a) the number of service suppliers allowed, (b) the value of service transactions or assets, (c) the total number of service operations or the total quantity of service output, (d) the total number of natural persons that may be employed in a particular service sector，（e）the types of legal entity or joint venture through which a service supplier may supply a service, and (f) the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment (Article XVI: 2).
Apart from market access, the other specific obligation the member must observe is national treatment, which is giving services and services suppliers of other members“treatment no less favorable” than what the member grants its own like services and services suppliers (Article XVII: 1). National treatment implies the absence of all discriminatory measures that may modify the conditions of competition to the detriment of foreign services or service suppliers. Again, limitations may be listed to provide cover for inconsistent measures,such as discriminatory subsidies and tax measures, residency requirements, etc. Article XVII does not contain a typology comparable to Article XVI. National treatment obligation applies regardless of whether or not foreign services and suppliers are treated in a formally identical way to their national counterpart. What matters is that they are granted equal opportunities to compete.
Members may also undertake additional commitments with respect to measures not falling under the market access and national treatment provisions of the Agreement. Such commitments may relate to the use of standards, qualifications or licenses (Article XVIII). Additional commitments are particularly frequent in the telecommunications sector where they have been used by some 60 members to incorporate into their schedules certain competition and regulatory(self-) disciplines. These disciplines are laid out in a so-called Reference Paper, which an informal grouping of members had developed during the extended negotiations in this sector.
(5) Progressive Liberalization
The long-term objective of the GATS is to encourage its member states to open as many of their service sectors to market access as possible. Article XIX of Section 1 describes how this is to be done:
In pursuance of the objectives of this Agreement, members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization. Such negotiations shall be directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. This process shall take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations.
Although progressive liberalization is the goal of GATS, member states are not permanently bound to the commitments they make in their Schedules. A member may modify or withdraw it after a period of three years from the entry into force of a commitment. Before doing so, the member must give the Council for Trade in Services at least three months notice; and, if a member state affected by the change asks, the notifying member state must participate in negotiations to agree on appropriate compensatory adjustments (Article XXI: 1, 2)[11].
(6) Institutional Structure
The operation of the GATS is overseen by a Council for Trade in Services made up of representatives of all WTO member states (Article XXIV). Subordinate to the Council are several bodies, including sectoral committees responsible for the operation of the different sectoral annexes.
The Council for Trade in Services is meant to function within the WTO structure. Thus, the Council is the WTO Secretariat that provides technical assistance to developing countries on matters related to trade in services (Article XXV:2). And both consultations and dispute settlements related to GATS are governed by the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes.
4. GATS Schedules of Specific Commitments.
Each WTO member state is required to submit for annexation to GATS a Schedule of Specific Commitments regarding the service sectors that it has opened to international market access. For each such sector, its Schedule must specify (a) terms, limitations, and conditions on market access, (b) conditions and qualifications on national treatment, (c) undertakings relating to additional commitments, (d) the time frame for implementing its commitments, and(e) the date of entry into force of its commitments.
Members are not required open all of their service sectors and one preliminary study illustrates that developing countries have only opened about one-fifth of their service sectors and developed countries about two-thirds of theirs. Nevertheless, the GATS is new and it is but a first step. It requires that negotiations continue to liberalize the international trade in services. If the GATS is as successful in the future as GATT has been in the past, it seems likely that international trade in services will grow dramatically in the decades to come.
B. Regional Intergovernmental Regulations on Trade in Services
1. European Union Law on Trade in Services.
The European Union[12]is a common market not only for goods but for services and labor. In comparison with GATS, the Treaty Establishing the European Community (EC Treaty), the principal source of law in the European Union (EU), creates a much more open and liberalmarket for services between and among its member states. In essence, service suppliers and entrepreneurs are acquiring (as the EU integrates and EU law evolves) the right to do business in all European Union member states.
The freedom to provide services relates to economic activities carried out on a temporary basis. It applies, for example, when a Danish firm of consultants advises businesses in Greece, or an Italian construction company erects a building in Spain. The right of establishment authorizes a natural person or a company to settle permanently in a member state and carry on a business. It includes the right to set up and carry on a business both as an individual and as an employer.
Concern has been expressed that some cases fall between the scopes of both these guarantees. An example would a British camera crew filming scenes in France and Germany. Because the crew is neither establishing itself nor providing or receiving services, neither of the two guarantees fit exactly. However, in several cases, the European Court of Justice[13]has read the two provisions together and hinted that it regards them as part of a general right of a self-employed person to pursue activities throughout the Union regardless of the location of his principal office or the kind of economic endeavor he is involved in.
To ensure that the right of establishment and the freedom to provide services are meaningful guarantees, the EC Treaty declares that the self-employed and the employees of service suppliers are entitled to travel freely within the member states of the Union and to carry on their activities free from discrimination (Article 52 and 59, EC Treaty). These are not absolute rights, however. Entry can be limited on the grounds of public policy, public security, and public health (Article 56 and 66, EC Treaty), and contracts with the public service can be limited to nationals of the member states (Article 55 and 66, EC Treaty).
2. Provisions Governing Trade in Services in the North American Free Trade Agreement.
The trade-in-services provisions in the North American Free Trade Agreement (NAFTA)[14]are very similar to those found in GATS. There are, nonetheless, some differences.
As is the case with GATS, each of the NAFTA countries (Canada, Mexico, and the United States) has to observe the basic rules of transparency (Article 1306, 1411, and 1802, NAFTA), most-favored-nation treatment (Article 1103, 1203, and 1406, NAFTA), and national treatment(Article 1102, 1202, and 1405, NAFTA). In addition, each NAFTA country is required to accord the better of national or most-favored-nation treatment to services and service suppliers of the other two countries (Article 1104, and 1204, NAFTA). Also, like GATS, service providers establishing a commercial presence in NAFTA countries, including providers from non-NAFTA states, are granted several important rights, including the right to be free from performance requirements (Article 1106, NAFTA), the right to make inward and outward transfers (Article 1109, NAFTA), the right to have the international standard of care doctrine applied to expropriations (Article 1110, NAFTA), and the right to have investor-state disputes resolved by binding international arbitration (Article 1120, NAFTA).
One important difference between GATS and NAFTA is that NAFTA does not deal with services generally, but rather by sectors. Its main service provisions are in three core service chapters (cross-border trade in services, telecommunications and financial services), two associated chapters (investment and temporary entry of businesspeople[15]), and three annexes(land transportation, professional services, and specific reservations and exceptions). Because of this arrangement, rules such as transparency, most-favored-nation treatment, and national treatment are repeated (with minor variations) in different chapters[16].
Another difference is that NAFTA does not specifically define the four basic modes of supply as GATS does, and instead deals with them piecemeal. NAFTA’s chapter on cross-border trade in services covers that mode (Article 1205, NAFTA). The chapter on investments generally covers the commercial presence mode of supply. Other chapters cover the movement of consumers and the temporary movement of natural persons.
A third difference between NAFTA and GATS is the manner in which NAFTA deals with sectoral coverage. Unlike GATS, which requires states to list the sectors covered (a so-called“positive list”) and then list the limitations that apply to them (a “negative list”), NAFTA requires its countries to set out the sectors that are not covered by the Agreement (a negative list) and the limitations that apply to them (a negative list). Thus, if a NAFTA country does notlist a sector or a limitation, NAFTA’s rules automatically apply (Article 1108, 1206, and 1409, NAFTA).
Finally, the NAFTA countries may modify their lists of sectors and limitations. However, they may not, unlike GATS member states, make the lists more restrictive (Article 1108, 1206, and 1409, NAFTA).
(Adapted from Chapter 8 of Service and Labor, International Business Law: Text, Cases and Readings(Fourth Edition), written by Ray August, Washington State University, USA and published by Pearson Education International LTD. in 2004)
[The Reflections]
1. Please give an example (other than those given above) of each mode of supply of services provided for in the GATS.
2. What are the differences between the MFN treatment under GATS and of the GATT1994?
3. Can members exempt measures affecting trade in services from the application of the MFN treatment obligation of the GATS?
4. What are the differences between the national treatment obligation of the GATS and that of GATT1994?
5. What limitations which apply to specific service sectors are provided for in the market access rules of the GATS?
6. What are the differences between the GATS and the rules for trade in services of NAFTA?
【The In-depth】
A Closer Look at GATS
A. The Doha Development Agenda.
The Uruguay Round marked only a first step in a longer-term process of services liberalization within a multilateral framework. The importance of the Round lay less in its improving actual market conditions, but in creating a completely new system of rules and disciplines for future trade liberalization. This may also explain why the GATS, in Article XIX:1 already provides for a new round of services negotiations to start not later than five years from the date of entry into force of the Agreement. Consequently, a new services Round was launched in January 2000. It aims to achieve a progressively higher level of liberalization of services trade while “promoting the interests of all participants on a mutually advantageous basis and...securing an overall balance of rights and obligations” (Article XIX: 1). Although the Seattle Ministerial Conference in late November 1999 failed to agree on launching a larger trade round, the mandate to negotiate on services was never put into doubt. Contrasting from preparatory stages of the Uruguay Round, Members’ focus was no longer on whether, but on how to promote services liberalization within the multilateral system. As a first step in 1998, and as part of an information exchange program mandated at the Singapore Ministerial Conference, the WTO Secretariat prepared a series of background papers on major services sectors to stimulate policy discussion and promote dissemination of relevant information among Members. In March 2001, the Council for Trade in Services adopted Guidelines and Procedures for the Services Negotiations (document S/L/93) as provided for in Article XIX: 3. Major elements include a reaffirmation of the right to regulate and to introduce new regulations on the supply of services; the objective of increasing participation of developing countries in services trade; and the preservation of the existing structure and principles of the GATS, including the listing of sectors in which commitments are made and the four modes of supply. Certain new elements have been added, such as explicit recognition of the needs of small and medium-sized service suppliers; reference to the request-offer approach as the main method of negotiation; and continuation of the assessment of trade in services, mandated under Article XIX:3, as an ongoing activity of the Council for Trade in Services. The Negotiating Guidelines further provide that the rule-making negotiations inherited from the Uruguay Round (‘built-in agenda’) in the areas of subsidies, government procurement and domestic regulation be concluded prior to the completion of the negotiations on specific commitments. The negotiations on safeguards under Article X were made subject to an earlier deadline (15 March 2002), which has since been revised. A Decision by the Council for Trade in Services of March 2004 now provides that, subject to the outcome of the negotiating mandate in Article X: 1, the results shall enter into force not later than the results of the current Round of services negotiations. In keeping with another mandate under Article XIX: 3, the Negotiating Guidelines were complemented in 2003 by the “Modalities for the Special Treatment for Least-Developed Country Members”. The Modalities are intended to ensure “maximum flexibility” for LDCs in the negotiations. In November 2001, the Ministerial Conference inDoha confirmed the Services Negotiating Guidelines of March 2001 and placed them into the overall timeframe of the Doha Development Agenda. Initial requests for new or improved services commitments were to be submitted by 30 June 2002, with initial offers being due by 31 March 2003. A later decision by the General Council, in the context of the so-called July Package of 2004 (document WT/L/579), set a target date of May 2005 for the submission of revised offers. Nevertheless, the negotiations apparently failed to live up to the expectations of many participants. In 2005, the Chairman of the Special Session of the Council for Trade in Services summarized that, if current offers were put into effect, “few, if any, new commercial opportunities would ensue for service suppliers”. Therefore, in his view, most Members felt that the negotiations were not progressing as they should (document TN/S/20). The Hong Kong Ministerial Declaration of December 2005 is intended to provide new impetus. The negotiating objectives contained in its services-related sections, in particular Annex C, are far more detailed than those listed in any preceding declaration. New elements include a statement that least-developed countries are not expected to undertake new commitments, an obligation to develop methods for the implementation of LDC modalities, new provisions governing plurilateral request-offer negotiations, and mode-specific objectives for the continuation of these negotiations. Also, considerable emphasis is placed on achieving more clarity and certainty in the scheduling and classification of commitments. A second round of revised offers is due to be submitted by 31 July 2006, while the final draft schedules are to be tabled by 31 October 2006. In March 2006, the Chairman of the Council for Trade in Services summarized a general sense amid Members that the “Hong Kong Ministerial Declaration, including Annex C, establishes a clear set of negotiating objectives for services and a timeline to achieve them, providing the essential guidance for the negotiations to conclude by the end of this year”. It was also recognized that “as the Hong Kong Declaration does not define or provide a formula for the outcome of the negotiations, much will depend on the early and intense engagement by Members, particularly in the request/offer process” (document TN/S/25).
B. Mandated Review of MFN Exemptions.
Most-favored-nation treatment is a fundamental principle of the multilateral trading system as it was conceived after World War II and reconfigured in the Uruguay Round(Chapter 1.5). Any departures should thus be limited to exceptional circumstances and, where possible, be phased-out over time. The Annex on Article II Exemptions stipulates that MFN exemptions should not exceed ten years in principle, and provides for a review of all existingmeasures that had been granted for periods of more than five years. The latter review is destined to examine whether the conditions that led to the creation of the exemptions still prevail. More importantly, the Annex also requires that MFN exemptions be subject to negotiation in any subsequent trade round (Annex on Article II Exemptions). The first review was concluded in May 2001, and a second one was conducted in 2004. Members decided to launch a third review not later than June 2010. Concerning the negotiation of these exemptions in the context of the current Round, the Hong Kong Declaration commits Members to removing or reducing them substantially and to clarifying the scope and duration of remaining measures.
C. Negotiations on GATS Rules.
The GATS contains several negotiating mandates in rule-making areas which Member felt unable within the timeframe of the Uruguay Round to consider in detail. These negotiations are conducted in two Working Parties, one on Domestic Regulation and one on GATS Rules. The latter Working Party is charged with negotiations on emergency safeguards(Article X), government procurement (Article XIII), and subsidies (Article XV).
Emergency safeguards in services may be expected to allow for the temporary suspension of market access, national treatment and/or any additional commitments that Members may have assumed in individual sectors. Any such mechanism, should it be agreed to by Members, would need to be based on the principle of non-discrimination. It would complement existing provisions under the GATS that already allow for temporary or permanent departures from general obligations or specific commitments. Relevant provisions include Article XII if a Member experiences serious balance of payments and external financial difficulties; Article XIV if action is deemed necessary for overriding policy concerns such as protection of life and health or protection of public morals; and Article XXI if a Member intends to withdraw or modify a commitment on a permanent basis. Contrasting with these provisions, a safeguards clause might be used to ease adjustment pressures in situations where a particular industry is threatened by a sudden increase in foreign supplies. If the Safeguards Agreement for goods is used as a precedent, the onus would be on a protection-seeking industry to demonstrate that a causal link exists between such increases in supplies and its suffering serious injury. There are two main schools of thought among members. One group is not convinced that such a mechanism is desirable, given the scheduling flexibility under the GATS and the risk of undermining the stability of existing commitments through new emergency provisions. There are also doubts whether a services safeguard would be workable in practice.Skeptical Members point to the scarcity of reliable trade and production data in many sectors, and the technical complexities associated with the multi-modal structure of the GATS. Another group of Members feels that the availability of safeguards in the event of unforeseeable market disruptions would encourage more liberal commitments in services negotiations. In their view, abuse could be avoided through strict procedural disciplines. Data problems should not be exaggerated, given the existence in many sectors of professional associations, regulators and licensing bodies that compile relevant information.
The share of government purchases of services-from postal and communication services, to transport and financial services-is significant in many markets, and so are the trade effects that may result from access restrictions. The GATS imposes no effective disciplines, however, on governments’ use of such restrictions, whether in the form of exclusions of foreign participation, or of preferential margins favoring domestic suppliers. Article XIII provides that the MFN obligation (Article II) and any existing commitments on market access and national treatment (Articles XVI and XVII) do not apply to the procurement of services for governmental purposes. It is for the individual Members to balance the fiscal cost and structural inefficiencies that may be associated with purchasing restrictions and/or preferences with their expected contribution to employment, development and other policy objectives. However, Article XIII provides for negotiations to be conducted under the GATS. Although these negotiations started relatively soon after the Uruguay Round, together with those in the other rule-making areas, progress has been limited to date. It remains to be seen whether the new Round will give a boost. The only current procurement disciplines under WTO provisions are those contained in the Plurilateral Agreement on Government Procurement, whose scope is confined to a limited number of mostly economically advanced Members. The Agreement applies to purchases of goods and services and provides for transparency and, in specifically listed sectors, non-discrimination in the award process among signatories.
D. Assessment of Trade in Services.
Article XIX:3 provides that prior to establishing the negotiating guidelines for a new round, “the Council for Trade in Services shall carry out an assessment of trade in services in overall terms and on a sectoral basis with reference to the objectives of this Agreement, including those set out in paragraph 1 of Article IV.” While discussed at virtually all Meetings of the Services Council since 1998/99, delegations have found it difficult to arrive at a common assessment. This may be due not only to natural divergences in policy objectives and negotiating interest, but also to problems of data availability and comparability acrosscountries, sectors and modes. The commitments contained in schedules can hardly be considered to be meaningful reference points for an assessment, given that they cover only a limited number of sectors and that most entries remained confined to locking in status quo conditions in the early 1990s. In many cases, they have since been overtaken by autonomous policy reforms.
E. Complexity as a Challenge.
The GATS is structurally more complex than GATT. Among the most conspicuous differences are the existence of four modes of supply and of two distinct legal parameters, market access and national treatment, to determine conditions of market entry and participation. Thus, while a tariff schedule under GATT, in its simplest form, displays one tariff rate by sector, all specific commitments under the GATS consist of at least eight inscriptions, four under each market access and national treatment. This relatively complex structure of the Agreement is intended to enable members to accommodate sector-or mode-specific constraints they may encounter in the scheduling process and to progressively liberalize their services trade in line with their national policy objectives and levels of development. Complexity can thus be viewed, in part, as a precondition for effectiveness and flexibility. Nevertheless, national administrations, in particular in small developing countries, may harbour doubts. From their perspective, the complexity of the Agreement implies a formidable negotiating challenge. It not only complicates internal decision-making and consultation procedures with other Ministries and the private sector, but commands more attention (and resources) in the interpretation of requests received from, and the preparation of offers to be send to, trading partners. The Agreement seeks to address such concerns. First, it expressly recognizes the situation of developing countries and provides individual members with “appropriate flexibility” for opening fewer sectors and liberalizing fewer types of transactions in line with their development situation. While these provisions in Article XIX:2 may have been intended mainly to protect developing countries from overly ambitious commitments that, especially in the absence of appropriate regulatory frameworks, may cause excessive adjustment pains, they also protect from undue negotiating pressure across too wide a range of sectors and policy areas. Moreover, Article XXV of the GATS expressly recognizes the need for the WTO Secretariat to provide technical assistance to developing countries. The Article needs to be read in conjunction with the emphasis placed on the role of technical cooperation and capacity building by the Negotiating Guidelines and Procedures of March 2001 and, even more importantly, the Doha and the Hong KongMinisterial Declarations.
(Adapted from The General Agreement on Trade in Services: An Introduction., Pascal Lamy, 29 March 2006, http://search.wto.org)
[The Terms]
1. Doha Development Agenda: 多哈发展议程，多哈回合谈判
2. Seattle Ministerial Conference: 西雅图部长会议
3. Guidelines and Procedures for the Services Negotiations: 服务谈判准则和程序
4. request-offer approach: 要求与出价（谈判）方法
5. Modalities for the Special Treatment for Least-Developed Country Members: 为最不发达成员方提供特殊待遇的方式
6. initial offers: 初始出价
7. emergency safeguards: 紧急保障措施
8. additional commitments: 附加承诺
[The Discussions]
1. The efforts made by the Doha Round to achieve the progressively higher level of liberalization of service trade.
2. The new impetus the Hong Kong Ministerial Declaration provided for facilitating the service negotiation.
3. The attitude of the GATS towards the most-favoured-nation treatment and its exemptions.
4. The positive effects and the limitations of the request-offer approach as the main method of negotiation.
【The Further Sources】
Bernard Hoekman, The General Agreements on Trade in Services, a paper presented to an OECD Workshop on The New World Trading System, Paris, April 25-26, 1994.
Harry G. Broadman, International Trade and Investment in Services: A Comparative Analysis of the NAFTA, International Lawyer, vol.27, 1993.
Carsten Fink and Martin Molinuevo, East Asian Free Trade Agreements in Services: Roaring Tigers or Timid Pandas?
Pierre Sauve and Anirudh Shingal, Reflections on the Preferential Liberalization of Services Trade, NCCR Working Paper No. 2011/05, 12 June 2011.
Martin Roy, Endowments, Power, and Democracy: Political Economy of multilateral commitments on Trade in Services (WTO Working Papers), 2010.
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