261 / 350
THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO
The Progress Report of 1999 adopted by the Council for Trade in Services clarified
that the electronic delivery of services at least comes within the ambit of GATS.
71
The Appellate Body confirmed this by applying GATS to the electronic provision of
gambling services.
72
Considering that electronic commerce was non-existent when GATS
was concluded, the Appellate Body’s approach indicates that GATS can apply to newly
developed electronic services if these can be classified under existing commitments.
73
This decision must have certainly warned negotiators to take extra care when agreeing
to schedule new market access or national treatment commitments as the clarity of
a Member’s schedule is crucial in determining the extent of the obligations arising from
the commitments in times of vast technological advancement.
74
Some Members went
further than the Progress Report and submitted that all products that are delivered
electronically are to be considered as services.
75
The flexibility of GATS in comparison
to agreements on trade in goods certainly plays a role in such statements.
Considering that at least some electronic commerce is to be scrutinised under
GATS, the question remains whether services are supplied under Mode 1 (both
consumer and service provider remain in their respective home country, the service is
provided across the border), or Mode 2 (cross-border movement by the consumer to
the service provider’s home country to consume the service).
76
Moreover, a key concern is whether electronic commerce should be disciplined
through (i) a horizontal reform of the whole WTO system; (ii) the existing rules
in the WTO framework; or (iii) new rules in the WTO framework. A horizontal
reform across WTO instruments is very ambitious, but possibly the most efficient
way of dealing with electronic commerce as it can cater to new developments that
may challenge the arbitrary delimitations between services, goods, and intellectual
property that risk being made under the existing rules. The existing framework
appears to be insufficiently adapted to technological changes. A new instrument
could take the plurilateral approach considering that not all Members have like
interests in disciplines on electronic commerce.
77
In practice, the DDA negotiations on the services aspects of electronic commerce
seem to be truly blocked. Members are currently discussing the organisation of
a workshop on electronic commerce.
78
It seems that Members do not intend to go
71
S/L/74, Work Programme on Electronic Commerce Progress (Report by the Council for Trade in
Services 19 July 1999) 4.
72
US-Gambling (AB)
.
73
Sacha Wunsch-Vincent, ‘The Internet, Cross-Border Trade in Services, and the GATS: Lessons from
US-Gambling
’ (2006) 5 World Trade Review 319, 324.
74
ibid
.
75
S/L/74, Work Programme on Electronic Commerce Progress (Report by the Council for Trade in
Services 19 July 1999) 6 & 25.
76
ibid
; Drake and Nicolaïdis 411;Wunsch-Vincent, ‘The Internet, Cross-Border Trade in Services, and
the GATS: Lessons from
US-Gambling’
329.
77
Drake and Nicolaïdis 405.
78
S/C/40, Work Programme on Electronic Commerce (Report by the Chairman of the Council for Trade
in Services 10 December 2012) which builds on the work programme established in WT/L/843, Work