Czech Yearbook Vol. 4 2013

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BREGT NATENS – JAN WOUTERS CYIL 4 ȍ2013Ȏ
been proposals on countervailing procedures, although under the existing rules, such
measures are likely to be incompatible with the MFN obligation.50
The difficulties regarding subsidy disciplines negotiations also influence ESM
negotiations as the current situation in which subsidy measures are only disciplined
indirectly and can be remedied through GATS exceptions means the need for ESM
is much less pressing.51 As concerns the legal nature of such disciplines, Article XV
GATS explicitly appears to require the outcome of negotiations to be multilateral as
opposed to Articles X and XIII GATS which only require multilateral negotiations,
not multilateral disciplines.
3. The second track: bi- and plurilateral negotiations on market access
The second negotiating track in the DDA consists of the bi- and plurilateral
negotiations on market access, for which the Council for Trade in Services has
a coordinating role. The negotiations are essentially structured around the request-
offer approach: on the one hand, Members submit their liberalisation requests to other
Members while, on the other hand, Members propose liberalisation offers in the form
of an improved schedule of commitments. Although the best offers currently on the
negotiating table improve substantively on existing commitments, these improvements
still appear to be sensitively lower than the actual trade policy of Members.52 Hence,
there is hesitance to commit to the existing levels of liberalisation. Although Members
have pointed out they might increase their offer, this situation leaves the WTO lagging
behind, codifying liberalisation at a level that is sensitively below existing practice,
rather than substantively aiding liberalisation of trade in services. Although this is not
necessarily a bad thing and may even be an aim of the DDA,53 especially considering
the existing fragmented landscape of services liberalisation, this does not take away
from the urgency of concluding the current negotiations with sufficient progression
compared to the conclusion of GATS. Moreover, there appears to be a substantial gap
between requests and offers with regard to sectoral coverage and commitment level. 54
The number of requests and their content are kept confidential for political and
negotiation technical reasons.55 The number of offers and their content on the other
hand, is made available: seventy-one initial conditional offers and thirty-one revised
50 Rudolf Adlung, ‘Negotiations on Safeguards and Subsidies in Services: A Never-Ending Story?’ (2007)
10 Journal of International Economic Law 235, 239.
51 ibid.
52 Jara and Domínguez 121.
53 Bernard M Hoekman, Will Martin and Aaditya Mattoo, ‘Conclude Doha: It Matters!’ (2010) 9 World
Trade Review 505, 526.
54 This also holds true for negotiations on MFN exemptions.TN/S/36, Negotiations on Trade in Services
(Report by the Chairman of the Council for Trade in Services 21 April 2011) 6.
55 Jara and Domínguez 116. The EU has circulated an executive summary on its requests, see: European
Union, ‘Summary of the EC’s Revised Requests to Third Countries in the Services Negotiations under
the DDA’ (2005) < accessed
20 August 2012.