Character of the GATS

Transcription

1 Character of the GATS Are there basic differences between goods, services and investment? Which are the distinguishing factors? Services approximately 68 per cent of world GDP but only 20 per cent of global cross-border trade (Bossche p 476) Why? Which implications have the differences for trade? The GATS as a framework for negotiations Which are the basic differences from the GATT? GATS as unfinished business Art. XIX Is GATS a framework agreement? Ole Kr. Fauchald

2 Scope of the GATS Definitions: Art. XXVIII! Services The four modes of supply overlap with investment and production and export of goods Goods and services: mutually excluding? EC Bananas III para. 221 Measures affecting trade in services art. XXVIII(c) Broad range of measures affecting : trade effects test? Origin of services Art. XXVII Services supplied in the exercise of govenmental authority art. I:3(b) and (c) Neither commercial basis Nor in competition Exhaustive definition? A moving target! Ole Kr. Fauchald

3 MFN for services art. II Extends to de facto discrimination The issue of «likeness» Applies to both services and service suppliers (definition in art. XXVIII(g)) Note the use of the «plural» Competitive relationship? Reasons to distinguish from national treatment (art. XVII)? Less favourable treatment Conditions of competition Room for «aims and effects» test? No, EC Bananas III para. 241 Exceptions in Annex, set out separately in schedules Exceptions for economic integration (Art. V) Ole Kr. Fauchald

4 Services sectors Classification of services: is it possible to distinguish between properties (e.g. characteristics of provider or service) and purpose? 1. Business and professional services Accountancy, advertising, architecture and engineering, computer and related services, legal services Communication services Audiovisual services, postal, express mail, telecommunications Construction and related services 4. Distribution services (wholesale and retail) 5. Educational services 6. Environmental services 7. Energy services 8. Financial services 9. Health and social services 10. Tourism services 11. Transport services Ole Kr. Fauchald

5 Negotiations Negotiations during the Uruguay Round Global approach or a sectoral approach? The example of financial services current issues: financial crisis, Islamic finance and microfinance! Currently the Doha Round Upcoming issues: accountancy, legal services Norway s priority: marine transportation What about: Domestic regulations (Art. VI) Mutual or unilateral recognition MFN issues (Art. VII) Monopolies (Art. VIII) Business practices competition (Art. IX) Payments and transfers (Art. XI) Government procurement (Art. XIII) Subsidies (Art. XV) Ole Kr. Fauchald

6 Schedules of commitment Art. XX: Each country has a schedule where it can list Market access (art. XVI) National treatment (art. XVII) Other commitments (art. XVIII) Exceptions / conditions (horizontal or specific) What kind of exceptions? Harmonization of schedules? Scheduling based on 4 modes of supply of services (art. I:2) why distinguish? Cross border (40% of trade) Consumption abroad (20% of trade) Commercial presence (40% of trade) Presence of natural persons (insignificant(?)) Which have strongest interference with national markets? Ole Kr. Fauchald

7 National treatment art. XVII Case law: Panel decisions «like services» / «like service suppliers» Distinguish services and service suppliers different tests? Competitive relationship Character vs. function of the service / service supplier Treatment no less favourable Note the specification! Emphasis on «conditions of competition» Schedules horizontal reservations Relationship to modes of supply Ole Kr. Fauchald

8 Market access art. XVI Must the measures target foreign services? Number of service suppliers Numerical quotas, monopolies, exclusive service suppliers, economic needs test Value or number of service transactions Numerical quotas, economic needs test Number of service operations/quantity of service Quotas, economic needs test Number of natural persons Numerical quotas, economic needs test Requirements concerning nature of legal entity Limitations on foreign capital Ole Kr. Fauchald

9 Domestic regulations Negotiations Art. VI:4 Art. VII Current obligations Art. VI:1 Art. VI:5 Which rules are those that are parallel for trade in goods? Are there relevant fundamental differences between services and goods? Ole Kr. Fauchald

10 General exceptions What distinguishes GATS art. XIV from GATT art. XX? Scope of application Text (unfinished business?) Location in the agreement Availability of other exceptions Relationship to other treaties What are the implications? Flexibility regarding purposes Strictness of «necessity» Approach to the interpretation of the preamble Ole Kr. Fauchald