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THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO
final text of the Draft Disciplines. These range from what is currently in the Draft
Disciplines to the addition of the very broad notion of ‘public policy objectives’. Two
more proposals were listed, the first of which combines a necessity test with ‘specific
national policy objectives including […] the quality of a service’, while the second
states that the ‘content of the measures should be reasonable in light of ensuring the
quality of the service.’
13
Based on an analysis of the proposals of seven Members,
one author concludes that a preference for an indicative list of objectives whose
legitimacy is not to be questioned subsists.
14
However, it is clear from the breadth of
the alternatives that the water between Members remains deep.
A second issue is the complementarity between disciplines on domestic regulation
and the market access and national treatment obligations. Currently, it is unclear
whether measures that are consistent with Article VI:4-5 can be subjected to those
obligations. Earlier in the negotiations, Members seemed to have agreed on mutual
exclusivity between market access and Article VI:4-5.
15
Similarly, in the context of
WTO dispute settlement, a Panel addressed the relationship between both provisions
in the
US Gambling
case and decided that a measure is covered by either the market
access obligation or Article VI:4-5.
16
However, that finding was criticised for a lack
of textual support, which is an argument that is possibly supported by the Appellate
Body’s refusal to go into the matter.
17
Exclusiveness would in any event require
drawing a clear line between Article VI:4, on the one hand, and the provisions on
market access and national treatment, on the other hand. Possible approaches to such
a distinction include: identifying the intent of the measure, installing a temporal
distinction,
18
using discriminatory foreseeability as a dividing line, or adopting an
empirical approach by listing examples.
19
Whether mutually exclusive or overlapping,
from the perspective of legal certainty, a clear and unequivocal solution is preferable
in future disciplines on domestic regulation.
Third, there is the question of whether Article VI:4 applies only to sectors in
which commitments have been made or to all sectors regardless of commitments.
According to some commentators, a careful reading of Article VI:4 indicates that
it should apply to all sectors.
20
Another author claims the article does not explicitly
13
S/WPDR/W/45, Disciplines on Domestic Regulation Pursuant to GATS Article VI:4 (Progress Report
by the Chairman of the Working Party on Domestic Regulation 14 April 2011) 18.
14
Panagiotis Delimatsis, ‘Determining the Necessity of Domestic Regulations in Services: The Best is Yet
to Come’ (2008) 19 European Journal of International Law 365, 392.
15
See Wouters and Coppens 229 for an extensive analysis.
16
United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services
WT/
DS285/R, Panel report adopted 20 April 2005 6.305.
17
United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services
WT/DS285/
AB/R, AB report adopted 20 April 2005 250;Pauwelyn 156.
18
Gaëtan Verhoosel,
National Treatment and WTO Dispute Settlement: Adjudicating the Boundaries of
Regulatory Autonomy
(Hart 2002) 97.
19
See Wouters and Coppens 233 for a discussion of these arguments and citations of their authors.
20
Panagiotis Delimatsis, ‘Due Process and ‘Good’ Regulation Embedded in the GATS – Disciplining
Regulatory Behaviour in Services through Article VI of the GATS ’ (2006) 10 Journal of International