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THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO
government procurement; (iv) disciplines on subsidies; (v) improving market access
for foreign services suppliers; (vi) electronic commerce, and (vii) specific modalities for
least-developed countries (LDCs). This article follows the two parallel tracks approach
of the Negotiation Guidelines of 2001.
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As a ‘third track’, electronic commerce and
specific modalities for LDCs are addressed.
Second, this article looks at a more pragmatic way of approaching some
negotiations on trade in services. For that, it focuses on the increasing inevitability
of a plurilateral approach. In this respect, it must be stressed that there is a difference
between plurilateral negotiations, which are part of the negotiations on market
access, and the ‘plurilateral approach’. The latter term is used here to encompass the
variety of ways in which obligations and commitments can be inserted in the WTO
framework in a way in which they only apply to Members subscribing to them.
Examples include the Plurilateral Trade Agreements in Annex 4 to the Marrakesh
Agreement, the Understanding on Financial Services or the Reference Paper on
Basic Telecommunications. Depending on the specific instrument used, the benefits
can be extended to either all Members or only to those who subscribe that specific
agreement. In the context of this article, the term plurilateral approach does not refer
to agreements outside the WTO regulatory framework. Hence, this understanding of
the plurilateral approach caters to the interests of groups of Members wishing to add
to their obligations and commitments, or add additional instruments to the WTO.
The last section of this article addresses the benefits of the plurilateral approach for
services negotiations in the WTO.
2. The first track: multilateral negotiations
With regard to multilateral negotiations on services, the Council for Trade in
Services coordinates the negotiations that are being conducted by the Working Party
on Domestic Regulation (WPDR), which aims to devise disciplines on domestic
regulation, and the Working Party on GATS Rules (WPGR), which has been given
a mandate to negotiate on emergency safeguard measures, government procurement
and subsidies. These issues are addressed successively.
2.1 Working Party on Domestic Regulation
In the words of the GATS preamble, domestic regulation is part of ‘the right of
Members to regulate, and to introduce new regulation […] to meet national policy
objectives’. Article VI:4 GATS states that the envisaged disciplines ought to make
sure that domestic regulations
inter alia
be (a) based on objective and transparent
criteria, (b) not more burdensome than necessary to ensure the quality of the
service, and (c) in the case of licensing procedures, not a restriction on the supply of
a service in itself. Only domestic regulation concerning qualification requirements
and procedures, technical standards, and licensing requirements come within the
scope of Article VI:4. The provision provides that the Council for Trade in Services
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As endorsed by the Doha Declaration: Doha Declaration 15.