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address the matter and that an interpretation can go both ways, however, his
argumentation seems to favour a sector specific scope.
21
Another position is that the
disciplines should apply to all sectors but that nothing stops Members from devising
disciplines that only apply to one or more specific sectors.
22
This is evident from
practice, as the WPDR has already negotiated disciplines for the accountancy sector.
In the end, Members have the last word, and they seem to agree that the disciplines
should only apply to committed sectors.
23
This is also apparent from Paragraph 10 of
the Draft Disciplines, which indicates that Members are favouring the approach that
limits applicability to sectors in which commitments have been made.
Fourth, the legal status of future Article VI:4 disciplines remains unclear. Disciplines
may become legally binding through several paths, for example through scheduled
additional commitments. Following a Note by the Secretariat on regulatory issues in
sectors and modes of supply, there was a discussion among Members to address domestic
regulation in this way.
24
The statements by Members indicate that there is no consensus
to adopt such a plurilateral approach, as this may conflict with the WPDR’s mandate.
However, other Members appear interested in a flexible plurilateral approach.
This non-exhaustive short overview illustrates that many difficult issues persist
in the negotiations on domestic regulation. Even though the positions on different
provisions of the Draft Disciplines are still far apart, there seems to be a consensus
between Members to continue work on revising the text as they appear to agree
that disciplines on domestic regulation are necessary to ensure the effectiveness of
scheduled commitments.
25
2.2 Working Party on GATS Rules
The WPGR coordinates negotiations on Article X GATS on emergency safeguard
measures (ESM), Article XIII GATS on government procurement and Article XV
GATS on subsidies. Members are far from reaching a consensus on either subject as
objectives and expected outcomes of the negotiations diverge so fundamentally that
it is even unclear whether disciplines should be negotiated or not.
26
It is evident that
there is a basic divide between Members who want more liberalisation and those
in favour of more flexibility and there is an added difficulty of misinformation and
a lack of concrete data.
27
It seems that the last five years of DDA negotiations have
Economic Law 13, 39 & 49;Trachtman, ‘Addressing Regulatory Divergence through International
Standards: Financial Services’ 31; Wouters and Coppens 240.
21
Krajewski 137.
22
Wouters and Coppens 240.
23
Delimatsis, ‘Determining the Necessity of Domestic Regulations in Services: The Best is Yet to Come’ 396.
24
S/WPDR/M/54,Working Party on Domestic Regulation, Report of the Meeting Held on 27 June 2012,
Note by the Secretariat (31 July 2012) 14, 15, 19 & 21.
25
TN/S/36, Negotiations on Trade in Services (Report by the Chairman of the Council for Trade in
Services 21 April 2011) 76.
26
ibid
.
27
Alejandro Jara and M del Carmen Domínguez, ‘Liberalization of Trade in Services and Trade
Negotiations’ (2006) 40 Journal of World Trade 113, 127.