• Divyashree Suri and Janhavi Somvanshi

GATS Not Out of Service: Conclusion of the Negotiations on Services Domestic Regulations

At the MC11, a group of WTO Members had reaffirmed their commitment to advance negotiations of disciplines on domestic regulation as mandated in Article VI:4 of the General Agreement on Trade in Services (GATS). Even though the MC12, which was scheduled to be held in November 2021, was indefinitely postponed due to the pandemic, on December 2, 2021, 41 WTO Members announced the successful conclusion of the negotiations in the Joint Initiative on Services Domestic Regulation.


Structure of the Declaration

The Declaration on the Conclusion of the Negotiations on Services Domestic Regulation (Declaration) contains the following elements:


Section 1: Reference Paper on Services Domestic Regulation

Section I lays out the general guidelines on the disciplines adopted by the Participants. These guidelines are as follows:

  • Participants will need to incorporate disciplines as listed in Section II (elaborated below) in their Schedules as additional commitments under Article XVIII of the GATS.

  • Participants may choose to incorporate alternative disciplines in Section III (elaborated below) for their commitments in financial services.

Provisions for Developing Country Members and Least Developed Country Members

  • Developing country members may implement specific disciplines for implementation on a date after a transitional period of maximum 7 years from the date of entry into force of the disciplines. This transitional period can be extended on request.

  • Least Developed Country Members may inscribe the disciplines into their Schedules no later than 6 months in advance of their graduation from least-developed country status.

  • Developed and developing country Members are encouraged to offer specific technical assistance and capacity building to developing and least-developed country Members.

Section II- Disciplines on Services Domestic Regulation

Section II lists the disciplines which are required to be adopted by the Participants as additional commitments in their Schedules.


Disciplines in Section II will apply to measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards affecting trade in services. However, these disciplines are not applicable to “any terms, limitations, conditions, or qualifications set out in a Member’s Schedule” in accordance with Article XVI (Market Access) or Article XVII (National Treatment) of GATS.


Ease of Application Process:

Assessment and Recognition of Qualifications:

Transparency:

The Participants should ensure that information which may be necessary for any applicant wanting to get the supply of their service authorized should be publicly available. Such information may include procedures, requirements, fees, technical standards, timeframes, opportunities for public involvement, etc.


Participants should publish a proposed measure promptly, and should also provide an opportunity to other countries to comment on the measure before entry into force. Participants are encouraged to explain the purpose and rationale of such measure. Reasonable period of time must be provided to the service suppliers for compliance.

Members should endeavour to have enquiry points to respond to queries from service suppliers.


Technical Standards:

Members are encouraged to adopt technical standards developed by relevant international organizations through transparent and open processes.


Development of Measures

Participants are required to ensure the following while developing measures concerning services:

Quick Notes:

  • The Declaration is silent on what may constitute rules of origin for trade in services (See Tracing the Service: GATS and Rules of Origin)

  • While the Declaration is definitely a step forward in terms of domestic measures, it does not cover the various other elements of technical barriers to trade (See Technically Unbarred: GATS and Technical Regulations)

  • There is no conversation around unfair trade of services yet (Are we asking for a bit much?)

  • Lastly, it's 2021, do we only want to address discrimination between men and women?

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