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GATS AND THE REGULATION
OF INTERNATIONAL TRADE
IN SERVICES
This collection of essays takes stock of the key challenges that have arisen
since the entry into force of the General Agreement on Trade in Services
in the mid-1990s and situates them in the context of the WTO’s Doha
Development Agenda and the proliferation of preferential agreements
addressing services today. The multidisciplinary approach provides an
opportunity for many of the world’s leading experts and a number of new
analytical voices to exchange ideas on the future of services trade and
regulation. Cosmopolitan approaches to the treatment of labour mobility,
the shape of services trade disciplines in the digital age and pro-competitive
regulation in air transport are explored with a view to helping readers gain a
better understanding of the forces shaping the changes. An essential read for
all those concerned with the evolution of the rules-based trading system and
its impact on the service economy.
M A R I O N P A N I Z Z O N is Senior Research Fellow at the World Trade
Institute, Berne. She specialises in international economic law, a field in
which she publishes on subjects as diverse as intellectual property law,
human rights and trade, services and sources of law.
NICOLE POHL held the position of Director of Studies at the World Trade
Institute until October 2007. Since November 2007, she has been working
with the School of Management at Zurich University of Applied Sciences
to prepare the launch of several new Master programmes.
P I E R R E S A U V É is a faculty member and senior research fellow at the
World Trade Institute in Berne where he directs a Swiss National Science
Foundation project on the regulation of trade in services. He holds
visiting professor appointments at the London School of Economics
and Political Science, the College of Europe in Bruges and at the
University of Barcelona.
GATS AND THE REGULATION
OF INTERNATIONAL TRADE
IN SERVICES
Edited by
MARION PANIZZON,
NICOLE POHL
and
PIERRE SAUVÉ
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521896887
© Cambridge University Press 2008
This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2008
ISBN-13 978-0-511-41422-0 eBook (EBL)
ISBN-13 978-0-521-89688-7 hardback
Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
CONTENTS
Contributors page ix
List of figures xii
List of tables xiii
List of abbreviations xv
Preface xix
PART 1 Beyond regulatory control and multilateral
flexibility: Gains from a cosmopolitan GATS 1
1 Testing regulatory autonomy, disciplining trade relief and
regulating variable peripheries: Can a cosmopolitan
GATS do it all? 3
MARION PANIZZON AND NICOLE POHL
PART 2 Unexplored economic, political and judicial
dimensions of GATS 21
2 South–South services trade 23
NORA DIHEL, FELIX ESCHENBACH AND BEN SHEPHERD
3 The race towards preferential trade agreements in services:
How much market access is really achieved? 77
MARTIN ROY, JUAN MARCHETTI AND AIK HOE LIM
4 Rules of origin in services: A case study of five ASEAN
countries 111
CARSTEN FINK AND DEUNDEN NIKOMBORIRAK
5 Comment: Is services trade like or unlike manufacturing
trade? 139
MARION JANSEN
v
vi CONTENTS
PART 3 The limits of request–offer negotiations:
Plurilateral and alternative approaches to services
liberalisation 143
6 Services post-Hong Kong – initial experiences with
plurilaterals 145
ELISABETH TÜRK
7 Negotiating approaches from a Member’s perspective 172
CLARE KELLY
8 Evaluating alternative approaches to GATS negotiations:
Sectoral, formulae and others 183
HENRY GAO
9 Trade liberalisation under the GATS: An odyssey? 209
RUDOLF ADLUNG
PART 4 GATS case law: A first assessment 223
10 Lessons learned from litigating GATS disputes:
Mexico – Telecoms 225
ANDREW W. SHOYER
11 From Periodicals to Gambling: A review of systemic issues
addressed by WTO adjudicatory bodies under
the GATS 236
ERIC H. LEROUX
12 Specificities of WTO dispute settlement in services
cases 276
WILLIAM J. DAVEY
13 Can foreign investors in services benefit from WTO dispute
settlement? Legal standing and remedies in WTO
and international arbitration 296
MARTÍN MOLINUEVO
PART 5 Market access, national treatment and domestic
regulation 325
14 Some thoughts on the concept of ‘likeness’ in the GATS 327
MIREILLE COSSY
CONTENTS vii
15 Comment: The unbearable lightness of likeness 358
JOOST PAUWELYN
16 Towards a horizontal necessity test for services: Completing the
GATS Article VI:4 mandate 370
PANAGIOTIS DELIMATSIS
17 Comment: Quis custodiet necessitatem? Adjudicating necessity
in multilevel systems and the importance of judicial
dialogue 397
MARKUS KRAJEWSKI
PART 6 Unfinished business: Safeguard and subsidy
disciplines for services 405
18 Recognition, standardisation and harmonisation: Which rules
for GATS in times of crisis? 407
MARKUS KRAJEWSKI
19 A safeguards regime for services 434
FERNANDO PIÉROLA
20 Waiting for Godot: Subsidy disciplines in services trade 466
PIETRO PORETTI
21 Comment: One set of rules for fair and unfair trade in services:
A possible merger? 489
KANITHA KUNGSAWANICH
PART 7 Challenges to the scope of GATS and cosmopolitan
governance in services trade 495
22 Trade rules for the digital age 497
SACHA WUNSCH-VINCENT
23 Comment: Digital trade: Technology versus legislators 530
CHRISTIAN PAULETTO
24 How human rights violations nullify and impair GATS
commitments 534
MARION PANIZZON
viii CONTENTS
25 Comment: The instrumental rationale for protecting human
rights in the context of trade services reform 561
SIMON WALKER
26 In pursuit of the cosmopolitan vocation for trade: GATS and
aviation services 566
RICHARD JANDA AND MARK GLYNN
PART 8 Conclusion 597
27 Been there, not yet done that: Lessons and challenges in
services trade 599
PIERRE SAUVÉ
Index 632
CONTRIBUTORS
R U D O L F A D L U N G , Senior Economist, World Trade Organization, Trade
in Services Division, Geneva
M I R E I L L E C O S S Y , Counsellor, World Trade Organization, Trade in
Services Division, Geneva
WILLIAM DAVEY, Guy Raymond Jones Chair, University of Illinois
College of Law
PANAGIOTIS DELIMATSIS, Senior Research Fellow, World Trade Institute,
University of Berne
NORA DIHEL, Economist, Chief Economist Unit, European Commission –
DG Trade
F E L I X E S C H E N B A C H , Post-Doctoral Researcher, Groupe d’Economie
Mondiale, Sciences Po, Paris
CARSTEN FINK, Senior Economist, World Bank Institute, Geneva
HENRY GAO, Assistant Professor, Faculty of Law, University of Hong Kong
M A R K G L Y N N , Doctoral Candidate, Institute of Air and Space Law,
McGill University, Montreal
R I C H A R D J A N D A , Associate Professor, Faculty of Law, Institute of Air and
Space Law, McGill University, Montreal
MARION JANSEN, Counsellor, World Trade Organization, Geneva
C L A R E K E L L Y , Counsellor, Permanent Mission of New Zealand to the
World Trade Organization, Geneva
MARKUS KRAJEWSKI, Professor, University of Potsdam
K A N I T H A K U N G S A W A N I C H , Counsellor, Thailand Permanent Mission to
the World Trade Organization, Geneva
ix
x CONTRIBUTORS
ERIC LEROUX, Senior Counsel, Trade Law Bureau, Government of Canada
A I K H O E L I M , Counsellor, World Trade Organization, Trade in Services
Division, Geneva
JUAN MARCHETTI, Counsellor, World Trade Organization, Trade in
Services Division, WTO Secretariat, Geneva
MARTIN MOLINUEVO, Research Fellow, World Trade Institute,
University of Berne
D E U N D E N N I K O M B O R I R A K , Research Director for Economic Governance,
Sectoral Economics Program, Thailand Development Research Institute,
Bangkok
M A R I O N P A N I Z Z O N , Senior Research Fellow, World Trade Institute, and
Lecturer, University of Berne
CHRISTIAN PAULETTO, Head, Swiss State Secretariat for Economic
Affairs, Berne
JOOST PAUWELYN, Professor, Duke University School of Law, Durham, NC
FERNANDO PIEROLA, Counsel, Advisory Centre on WTO Law, Geneva
NICOLE POHL, Director of Studies, World Trade Institute, University
of Berne
PIETRO PORETTI,Visiting Fellow, Georgetown University Law Center,
Washington, DC and PhD Candidate, University of Berne
MARTIN ROY, Counsellor, World Trade Organization, Trade in Services
Division, Geneva
PIERRE SAUVÉ, Visiting Professor, London School of Economics and
Senior Research Fellow, World Trade Institute, University of Berne
BEN SHEPHERD, Consultant, Development Economics Research Group,
The World Bank
ANDREW W. SHOYER, Partner, Sidley Austin LLP, Washington, DC
ELISABETH TÜRK, Economic Affairs Officer, United Nations Conference
on Trade and Development, Division on International Trade in Goods,
Services and Commodities, Geneva
CONTRIBUTORS xi
SIMON WALKER, Advisor on Human Rights and Disability, Office
of the United Nations High Commissioner for Human Rights,
UNOG–OHCHR, Geneva
S A C H A W U N S C H - V I N C E N T , Counsellor, Organisation for Economic
Co-operation and Development (OECD), Paris and Institute for
International Economics, Washington, DC
FIGURES
Figure 1 Aggregate trade restrictiveness
index – Banking page 42
Figure 2 Aggregate trade restrictiveness index – Insurance 43
Figure 3 Aggregate trade restrictiveness index – Fixed
telecommunication 44
Figure 4 Aggregate trade restrictiveness index – Mobile
telecommunication services 45
Figure 5 Aggregate trade restrictiveness index – Engineering
services 46
Figure 6 Aggregate trade restrictiveness index – Distribution
services 47
Figure 7 Sector coverage of PTAs in comparison with GATS offers and
GATS schedules 81
Figure 8 Proportion of countries reviewed that improve their
commitments or commit for the first time in selected sector
groups (mode 1) 83
Figure 9 Proportion of countries reviewed that improve their
commitments or commit for the first time in selected sector
groups (mode 3) 84
Figure 10 Rules of origin for cross-border trade 114
Figure 11 Rules of origin for service suppliers 116
xii
TABLES
Table 1 Estimated patterns of world and OECD trade in services,
percentage of total world exports, 2002 page 28
T able 2 Estimated patterns of world and OECD trade in services,
million USD and percentage, 2002 29
Table 3 Estimated patterns of world and OECD trade in transport
services, percentage of world transport exports, 2002 31
Table 4 Estimated patterns of world and OECD trade in other
services, percentage of world other services exports,
2002 32
Table 5 Estimated patterns of world and OECD trade in travel services,
percentage of world travel exports, 2002 33
Table 6 International scheduled passenger flows by region as
percentage of total number of passengers (2000) 34
Table 7 Visitor arrivals by region, percentage of total visitor
arrivals 35
Table 8 Estimation of South–South FDI flows 1994–2000 (billion
dollars) 36
Table 9 Migrants recorded by origin and destination, by continent,
percentage of total migrants 38
Table 10 Previous gravity models of international trade in
services 49
Table 11 Gravity model – Breakdown of country coverage
by sector 54
Table 12 Regression results for finance, insurance, telecom and
professional services 55
Table 13 Regression results for distribution, air transport and maritime
transport services 56
Table 14 South–South regression results for finance, insurance, telecom
and professional services 57
Table 15 Export supply functions with service sector performance
indicators as explanatory factors (full sample) 62
xiii
xiv TABLES
Table 16 Export supply functions with service sector performance
indicators as explanatory factors (small sample) 64
Table 17 Export supply functions with service sector performance
indicators as explanatory factors (small sample and selected
sectors) 66
Table 18 Telecom sector performance and the OECD restrictiveness
index 68
Table 19 Financial sector performance and the OECD restrictiveness
index 68
Table 20 The sample countries 69
Table 21 The variables and their sources 70
Table 22 Average percentage of sub-sectors subject to market access
commitments (mode 3), by groups of countries
reviewed 82
Table 23 Free trade agreements of ASEAN countries 112
Table 24 Foreign equity participation allowed in selected service sectors
(percentage) 129
Table 25 Simulation of rules of origin for non-ASEAN foreign banks
in the Philippines 131
Table 26 Type of ownership and legal entity of non-ASEAN service
providers 132
Table 27 ASEAN presence of non-ASEAN banks established in the
Philippines 135
Table 28 Performance of the WTO versus preferential trade deals on
digital trade issues as raised in the WTO Work Programme on
e-commerce 499
Table 29 Provisions of e-commerce Chapters in bilateral trade
agreements 508
Table 30 Plurilateral requests and cross-border electronic service
trade 509
Table 31 Deep e-commerce regulatory issues in selected preferential
trade agreements 510
Table 32 Deep e-commerce integration rules in preferential trade
agreements 518
ABBREVIATIONS
ACP African, Caribbean and Pacific Group
AIMS American Institute of Merchant Shipping
AFAS ASEAN Framework on Services
AIA ASEAN Investment Area
AIMS American Institute of Merchant Shipping
ANZCERTA Australia New Zealand Closer Economic Relations
Trade Agreement
AoA Agreement on Agriculture
ASCM Agreement on Subsidies and Countervailing
Measures
APEC Asia-Pacific Economic Cooperation
APT Asia Pacific Telecommunity
ASEAN Association of Southeast Asian Nations
BIT bilateral investment treaty
BOP balance of payments
CAFTA Central American Free Trade Agreement
CENSA Council of European and Japanese National
Shipowners’ Associations
CEPA Closer Economic Partnership Arrangement
CEPII Centre d’études prospectives et d’informations
internationales
CISG Convention on Contracts for the International Sale
of Goods
CPC Central Product Classification
CRNM Caribbean Regional Negotiating Machinery
CTG Council for Trade in Goods
CTS Council for Trade in Services
DDA Doha Development Agenda
DSB Dispute Settlement Body
DWP Doha Work Programme
DSM (WTO) dispute settlement mechanism
xv
xvi ABBREVIATIONS
DSU Understanding on Rules and Proceedings Governing
the Settlement of Disputes
ECAA European Common Aviation Area
ECLAC Economic Commission for Latin America and the
Caribbean
EFTA European Free Trade Association
EIA economic integration agreement
ESM emergency safeguard mechanism
FATS Foreign Affiliates Trade in Services
FDI foreign direct investment
FTA free trade agreement
FTAP fair and transparent arbitration process
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GDP gross domestic product
GPA Agreement on Government Procurement
GTAP Global Trade Analysis Project
HS harmonised system
IATA International Air Transport Association
ICAO International Civil Aviation Organization
ICSE International Classification of Status in Employment
ICSID Convention Washington Convention on the Settlement of
Investment Disputes between States and Nationals
of Other States
ICT information communication technologies
ICTSD International Centre for Trade and Sustainable
Development
IBD Inter-American Development Bank
IIA international investment agreement
ILC International Law Commission
ILO International Labour Organization
ISCO International Standard Classification of Occupations
ITU International Telecommunications Union
LDC least-developed country
LRP licensing requirements and procedures
M&A mergers and acquisitions
MAI Multilateral Agreement on Investment
MALIAT Multilateral Agreement on the Liberalisation of
International Air Transportation (Kona open skies
agreement)
ABBREVIATIONS xvii
MAT marine, aviation and transport
MENA Middle East and North Africa
MFN most-favoured nation
MRA mutual recognition agreement
NAFTA North American Free Trade Agreement
NAMA non-agricultural market access
NGBT Negotiating Group on Basic Telecommunications
NGMTS Decision establishing the Negotiating Group on
Maritime Transport Services
NTB non-tariff barriers
OECD Organisation for Economic Co-operation and
Development
PTA preferential trade agareement
QRP qualification requirements and procedures
RIA regional integration agreement
RTA regional trade agreement
SPS (Agreement on) Sanitary and Phytosanitary
Measures
SSCL Services Sectoral Classification List
TBT (Agreement on) Technical Barriers to Trade
TDB Trade and Development Board
TRI trade restrictiveness index
TRIPS trade-related aspects of intellectual property rights
TS technical standards
UNCITRAL United Nations Commission on International
Trade Law
UNCTAD UN Conference on Trade and Development
VCLT Vienna Convention on the Law of Treaties
WIPO World Intellectual Property Organization
WPDR Working Party on Domestic Regulation
WPGR Working Party on GATS Rules
WPPS Working Party on Professional Services
WTO World Trade Organization
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