Journal of International Economic Law Advance Access published online on July 10, 2007
Journal of International Economic Law, doi:10.1093/jiel/jgm014
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© Oxford University Press 2007, all rights reserved
Sixteen Years of Gats Case Law: What Have We Learned?
*Senior Counsel, Trade Law Bureau, Government of Canada. E-mail: eric.leroux{at}international.gc.ca.
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Abstract |
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The General Agreement on Trade in Services (GATS) negotiators faced a significant challenge when having to craft a comprehensive set of disciplines governing multilateral trade in services, and the result is somewhat complex. Some obligations, in particular the most favoured-nation treatment (MFN) obligation, apply across the board. Others, like the market access and national treatment obligations, apply only in respect of service sectors of a Member's choosing. There is overlap between the market access and national treatment obligations, and the relationship between these two disciplines and those on domestic regulation is not clearly established. Additional obligations have been adhered to on a voluntary basis, in particular in the areas of telecommunications and financial services. In general, the interpretation and understanding of Members’ Schedules of Specific Commitments proves to be a laborious exercise. This provides fertile ground for difficult and often sensitive interpretive issues to arise. Although Members have thus far not made extensive use of dispute settlement procedures to resolve them, existing World Trade Organization (WTO) decisions already show the reach of GATS disciplines and their potential impact on Members’ policies and regulations. The Gambling case has, in particular, sparked a debate as to what should be the right balance between trade constraints and the autonomy of Members’ service regulators. This article reviews the GATS case law with a view to offering a critical assessment of the main systemic issues that have been addressed by WTO adjudicatory bodies. These issues are, respectively, the scope of application of the GATS, the interpretation of specific commitments in Members’ Schedules, market access, non-discriminatory treatment, and general exceptions.
This article flows from, and constitutes an expanded version of, a presentation made at the 2006 World Trade Forum in Bern, Switzerland. The views expressed in this article do not necessarily reflect those of the Government of Canada and may not be attributed to it. The author thanks, without implicating, Pierre Sauvé, Valerie Hughes, Don McRae, Rodney Neufeld, Martin Roy, Mireille Cossy, and the anonymous reviewers of the JIEL for comments on a previous draft of this article.