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ESM in the schedules of commitments, for each sector separately or horizontally, or
through a plurilateral Reference Paper-type approach.
36
Because it is the expectation
of many developing countries that there should be some form of ESM in GATS,
37
the latter approach might prove insufficient without the support of at least some of
the developing countries’ main trading partners.
2.2.2 Government procurement
For now, Article XIII GATS explicitly exempts laws, regulations, or requirements
on government procurement of services purchased for governmental purposes from the
Most-Favoured-Nation (MFN), market access and national treatment obligations, and
requires multilateral negotiations to be conducted on the matter. However, it is argued
that increased market access and national treatment would greatly remove the need
for separate procurement disciplines, even though such disciplines could be useful to
combat corruption.
38
The EU, which has regulated procurement internally, has taken
the forefront in these negotiations by putting forth proposals for an Annex to GATS on
procedural rules for government procurement,whichare still beingdiscussed.
39
Anearlier
EU proposal to amend schedules of commitments to accommodate for government
procurement was rejected by a majority of Members because the complexity of the
schedules is already high as they stand.
40
Nonetheless, the EU continues to address the
issue. The WPGR Annual Report of 2011 describes ‘a series of dedicated discussions
on the broader economic and developmental importance of government procurement
in services based on a proposal [for discussion] by the European Union’.
41
However,
since 2012, work appears to be focused again on broader issues, such as a comparative
typology of relevant barriers, an examination of the most relevant services, and how to
improve statistical information.
42
Moreover, after ten years of negotiating, a renegotiated plurilateral Agreement on
Government Procurement (GPA) was adopted in March 2012.
43
The GPA only applies
to its signatories and is exempted from MFN treatment. Additionally, it thoroughly
ASEAN countries in 2000. See, for a discussion of the proposal, Pierre Sauvé, ‘Completing the GATS
Framework: Addressing Uruguay Round Leftovers’ (2002) 57 Aussenwirtschaft 301, 320.
36
Gauthier, O’Brien and Spencer 177; Marconini 28.
37
Sauvé 338.
38
Simon J Evenett and Bernard M Hoekman, ‘Government Procurement of Services and Multilateral
Disciplines’ in Pierre Sauvé and Robert M. Stern (eds),
GATS 2000: New Directions in Services Trade
Liberalization
(The Brookings Institution 2000) 144.
39
The last proposal dates from2006: S/WPGR/W/54, Communication from the European Communities:
Government Procurement in Services (Adopted 20 June 2006). See S/WPGR/21, GATS Rules (Report
by the Chairperson of the Working Party 14 April 2011) 5.
40
Jara and Domínguez 118.
41
S/WPGR/22, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services
(Adopted 10 November 2011) 5.
42
S/WPGR/23, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services
(Adopted 29 November 2012) 3.
43
GPA/113, Adoption of the Results of the Negotiations under Article XXIV:7 of the Agreement on
Government Procurement (Adopted by the Committee on Government Procurement 2 April 2012) 5.