Book contents
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- PART 5 Market access, national treatment and domestic regulation
- 14 Some thoughts on the concept of ‘likeness’ in the GATS
- 15 Comment: The unbearable lightness of likeness
- 16 Towards a horizontal necessity test for services: Completing the GATS Article VI:4 mandate
- 17 Comment: Quis custodiet necessitatem? Adjudicating necessity in multilevel systems and the importance of judicial dialogue
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
- References
14 - Some thoughts on the concept of ‘likeness’ in the GATS
from PART 5 - Market access, national treatment and domestic regulation
Published online by Cambridge University Press: 03 September 2009
Book contents
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- PART 5 Market access, national treatment and domestic regulation
- 14 Some thoughts on the concept of ‘likeness’ in the GATS
- 15 Comment: The unbearable lightness of likeness
- 16 Towards a horizontal necessity test for services: Completing the GATS Article VI:4 mandate
- 17 Comment: Quis custodiet necessitatem? Adjudicating necessity in multilevel systems and the importance of judicial dialogue
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
- References
Summary
Introduction
The concept of ‘like services and service suppliers’ under the General Agreement on Trade in Services (GATS) is still very much uncharted territory. One explanation may be the limited jurisprudence – only five disputes – existing so far under the GATS. In two disputes, the Panels and the Appellate Body made findings with respect to national treatment, but likeness was addressed in a very cursory manner. Moreover, in WTO services bodies, Members have shown little interest in discussing these issues in abstracto and have expressed a preference for leaving it to the Panels and the Appellate Body to determine likeness on a case-by-case basis, as has been done under the GATT.
There is perhaps one point on which there is general agreement: that the application of the national treatment obligation and the determination of likeness give rise to a wider range of questions – and uncertainties – under the GATS than under the GATT. The intangibility of services, the difficulty of drawing a line between the product and the producer, the existence of four modes of supply, the combined reference to services and service suppliers, the lack of a detailed nomenclature and the customised nature of many transactions are some of the factors that complicate the task of establishing likeness in services trade. In brief, ‘the concept of likeness… is more elusive in services than in goods’.
- Type
- Chapter
- Information
- GATS and the Regulation of International Trade in ServicesWorld Trade Forum, pp. 327 - 357Publisher: Cambridge University PressPrint publication year: 2008
References
, ‘The most-favoured nation as it Applies to Service Trade – New Problems for an Old Concept’, Journal of World Trade 33(4) (1999), pp. 103–129.Google Scholar
and , ‘most-favoured nation Unconditionality: A Legal Analysis of the Concept in View of its Evolution in the General Agreement on Tariffs and Trade/World Trade Organization Jurisprudence with Particular Reference to the Issue of “Like Product”’, in (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: The University of Michigan Press, 2000).Google Scholar
, ‘National Treatment: New Developments’, Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States/OECD/UN Conference on Trade and Development Symposium on Making the Most of International Investment Agreements: A Common Agenda, Paris (2005).
, ‘De Facto Discrimination in World Trade Law – National and Most-Favoured-Nation Treatment – or Equal Treatment?’, Journal of World Trade 36(5) (2002), pp. 921–977.CrossRefGoogle Scholar
and , ‘The World Trade Organization Impact on Internal Regulation – A Case Study of the Canada – EC Asbestos Dispute’, in (eds.), The EU and the World Trade Organization: Legal and Constitutional Aspects (London: Hart Publishing, 2001).Google Scholar
, ‘General Agreement on Tariffs and Trade/World Trade Organization Constraints on National Regulation: Requiem for an “Aim and Effects” Test’, The International Lawyer 32(3) (1998), pp. 619–649.Google Scholar
, National Regulation and Trade Liberalization in Services – The Legal Impact of the General Agreement on Trade in Services (GATS) on National Regulatory Autonomy (The Hague: Kluwer Law International, 2005).Google Scholar
, ‘What Are the Main Challenges for the General Agreement on Trade in Services Framework? Don't Talk about Revolution’, European Business Organization Law Review 5 (2004), pp. 511–562.CrossRefGoogle Scholar
‘The Uruguay Round Negotiations on Services: An Overview’, in (eds.), The Uruguay Round – Services in the World Economy (The World Bank, Washington D.C., 1990), pp. 19–26.Google Scholar
, ‘National Treatment in the General Agreement on Trade in Services – Corner-Stone or Pandora's Box’, Journal of World Trade 31(1) (1997), pp. 107–135.Google Scholar
and ‘From Policed Regulation to Managed Recognition in GATS’, in (eds.), General Agreement on Trade in Services 2000 – New Directions in Services Trade Liberalization (Washington D.C: Brookings, 2000), pp. 241–282.Google Scholar
, ‘Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects’, Journal of World Trade 37(4) (2003), pp. 783–799.Google Scholar
, National Treatment and World Trade Organization Dispute Settlement – Adjudicating the Boundaries of Regulatory Autonomy (Oxford and Portland, Oregon: Hart Publishing, 2002).Google Scholar
, ‘The General Agreement on Trade in Services 1994’, Common Market Law Review 32 (1995), pp. 1177–1225.Google Scholar
, ‘World Trade Organization Dispute Settlement Practice Relating to the GATS’, Journal of International Economic Law 2 (1999), pp. 295–346.CrossRefGoogle Scholar
, ‘World Trade Organization Dispute Settlement Practice Relating to the General Agreement on Trade in Services’, in (eds.), The World Trade Organization Dispute Settlement System 1995–2003 (The Hague: Kluwer Law International, 2004), pp. 381–420.Google Scholar
Border Tax Adjustments, Report of the Working Party adopted on 2 December 1970, BISD18/97–109.
Scheduling of Initial Commitments in Trade in Services: Explanatory Note, MTN.GNS/W/164, 3 September 1993 (1993 Scheduling Guidelines).
Subsidies and Trade in Services, Note by the Secretariat, S/Working Party on GATS Rules/9, 6 March 1996.
Guidelines for the Scheduling of Specific Commitments under the General Agreement on Trade in Services (GATS), adopted by the Council for Trade in Services on 23 March 2001, S/L/92 (Scheduling Guidelines).
Italian Discrimination of Imported Agricultural Machinery, report adopted 23 October 1958, BISD 7S/60.
United States – Section 337 of the Tariff Act of 1930, report adopted 7 November 1989, BISD 36S/345 (US – Section 337).
United States – Measures Affecting Alcoholic and Malt Beverages, report adopted 19 June 1992, 39S/206 (US – Malt Beverages).
United States – Taxes on Automobiles, report dated 11 October 1994, unadopted (US – Taxes on Automobiles).
Canada –Periodicals, Canada – Certain Measures Concerning Periodicals, Panel Report, WT/DS31/R, adopted 30 July 1997, as modified by Appellate Body Report, WT/DS31/AB/R.
Canada – Autos, Canada – Certain Measures Affecting the Automotive Industry, Panel Report, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R.
Chile – Alcoholic Beverages, Chile – Taxes on Alcoholic Beverages, Panel Report, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R.
Dominican Republic – Import and Sale of Cigarettes, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Panel Report, WT/DS302/R, adopted 25 April 2005, as modified by Appellate Body Report, WT/DS302/AB/R.
EC – Bananas III (US), European Communities – Regime for the Importation, Sale and Distribution of Bananas, Panel Report, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report, WT/DS27/AB/R.
EC – Asbestos, European Communities – Measures Affecting Asbestos and Asbestos- Containing Products, Panel Report, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report, WT/DS135/AB/R.
Japan – Alcoholic Beverages II, Japan – Taxes on Alcoholic Beverages, Panel Report, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR.
Korea – Various Measures on Beef, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Panel Report, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R.
US – Gambling, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Panel Report, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report, WT/DS285/AB/R.
, ‘The most-favoured nation as it Applies to Service Trade – New Problems for an Old Concept’, Journal of World Trade 33(4) (1999), pp. 103–129.Google Scholar
and , ‘most-favoured nation Unconditionality: A Legal Analysis of the Concept in View of its Evolution in the General Agreement on Tariffs and Trade/World Trade Organization Jurisprudence with Particular Reference to the Issue of “Like Product”’, in (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: The University of Michigan Press, 2000).Google Scholar
, ‘National Treatment: New Developments’, Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States/OECD/UN Conference on Trade and Development Symposium on Making the Most of International Investment Agreements: A Common Agenda, Paris (2005).
, ‘De Facto Discrimination in World Trade Law – National and Most-Favoured-Nation Treatment – or Equal Treatment?’, Journal of World Trade 36(5) (2002), pp. 921–977.CrossRefGoogle Scholar
and , ‘The World Trade Organization Impact on Internal Regulation – A Case Study of the Canada – EC Asbestos Dispute’, in (eds.), The EU and the World Trade Organization: Legal and Constitutional Aspects (London: Hart Publishing, 2001).Google Scholar
, ‘General Agreement on Tariffs and Trade/World Trade Organization Constraints on National Regulation: Requiem for an “Aim and Effects” Test’, The International Lawyer 32(3) (1998), pp. 619–649.Google Scholar
, National Regulation and Trade Liberalization in Services – The Legal Impact of the General Agreement on Trade in Services (GATS) on National Regulatory Autonomy (The Hague: Kluwer Law International, 2005).Google Scholar
, ‘What Are the Main Challenges for the General Agreement on Trade in Services Framework? Don't Talk about Revolution’, European Business Organization Law Review 5 (2004), pp. 511–562.CrossRefGoogle Scholar
‘The Uruguay Round Negotiations on Services: An Overview’, in (eds.), The Uruguay Round – Services in the World Economy (The World Bank, Washington D.C., 1990), pp. 19–26.Google Scholar
, ‘National Treatment in the General Agreement on Trade in Services – Corner-Stone or Pandora's Box’, Journal of World Trade 31(1) (1997), pp. 107–135.Google Scholar
and ‘From Policed Regulation to Managed Recognition in GATS’, in (eds.), General Agreement on Trade in Services 2000 – New Directions in Services Trade Liberalization (Washington D.C: Brookings, 2000), pp. 241–282.Google Scholar
, ‘Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects’, Journal of World Trade 37(4) (2003), pp. 783–799.Google Scholar
, National Treatment and World Trade Organization Dispute Settlement – Adjudicating the Boundaries of Regulatory Autonomy (Oxford and Portland, Oregon: Hart Publishing, 2002).Google Scholar
, ‘The General Agreement on Trade in Services 1994’, Common Market Law Review 32 (1995), pp. 1177–1225.Google Scholar
, ‘World Trade Organization Dispute Settlement Practice Relating to the GATS’, Journal of International Economic Law 2 (1999), pp. 295–346.CrossRefGoogle Scholar
, ‘World Trade Organization Dispute Settlement Practice Relating to the General Agreement on Trade in Services’, in (eds.), The World Trade Organization Dispute Settlement System 1995–2003 (The Hague: Kluwer Law International, 2004), pp. 381–420.Google Scholar
Border Tax Adjustments, Report of the Working Party adopted on 2 December 1970, BISD18/97–109.
Scheduling of Initial Commitments in Trade in Services: Explanatory Note, MTN.GNS/W/164, 3 September 1993 (1993 Scheduling Guidelines).
Subsidies and Trade in Services, Note by the Secretariat, S/Working Party on GATS Rules/9, 6 March 1996.
Guidelines for the Scheduling of Specific Commitments under the General Agreement on Trade in Services (GATS), adopted by the Council for Trade in Services on 23 March 2001, S/L/92 (Scheduling Guidelines).
Italian Discrimination of Imported Agricultural Machinery, report adopted 23 October 1958, BISD 7S/60.
United States – Section 337 of the Tariff Act of 1930, report adopted 7 November 1989, BISD 36S/345 (US – Section 337).
United States – Measures Affecting Alcoholic and Malt Beverages, report adopted 19 June 1992, 39S/206 (US – Malt Beverages).
United States – Taxes on Automobiles, report dated 11 October 1994, unadopted (US – Taxes on Automobiles).
Canada –Periodicals, Canada – Certain Measures Concerning Periodicals, Panel Report, WT/DS31/R, adopted 30 July 1997, as modified by Appellate Body Report, WT/DS31/AB/R.
Canada – Autos, Canada – Certain Measures Affecting the Automotive Industry, Panel Report, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R.
Chile – Alcoholic Beverages, Chile – Taxes on Alcoholic Beverages, Panel Report, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R.
Dominican Republic – Import and Sale of Cigarettes, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Panel Report, WT/DS302/R, adopted 25 April 2005, as modified by Appellate Body Report, WT/DS302/AB/R.
EC – Bananas III (US), European Communities – Regime for the Importation, Sale and Distribution of Bananas, Panel Report, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report, WT/DS27/AB/R.
EC – Asbestos, European Communities – Measures Affecting Asbestos and Asbestos- Containing Products, Panel Report, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report, WT/DS135/AB/R.
Japan – Alcoholic Beverages II, Japan – Taxes on Alcoholic Beverages, Panel Report, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR.
Korea – Various Measures on Beef, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Panel Report, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R.
US – Gambling, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Panel Report, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report, WT/DS285/AB/R.
Italian Discrimination of Imported Agricultural Machinery, report adopted 23 October 1958, BISD 7S/60.
United States – Section 337 of the Tariff Act of 1930, report adopted 7 November 1989, BISD 36S/345 (US – Section 337).
United States – Measures Affecting Alcoholic and Malt Beverages, report adopted 19 June 1992, 39S/206 (US – Malt Beverages).
United States – Taxes on Automobiles, report dated 11 October 1994, unadopted (US – Taxes on Automobiles).
Canada –Periodicals, Canada – Certain Measures Concerning Periodicals, Panel Report, WT/DS31/R, adopted 30 July 1997, as modified by Appellate Body Report, WT/DS31/AB/R.
Canada – Autos, Canada – Certain Measures Affecting the Automotive Industry, Panel Report, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R.
Chile – Alcoholic Beverages, Chile – Taxes on Alcoholic Beverages, Panel Report, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R.
Dominican Republic – Import and Sale of Cigarettes, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Panel Report, WT/DS302/R, adopted 25 April 2005, as modified by Appellate Body Report, WT/DS302/AB/R.
EC – Bananas III (US), European Communities – Regime for the Importation, Sale and Distribution of Bananas, Panel Report, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report, WT/DS27/AB/R.
EC – Asbestos, European Communities – Measures Affecting Asbestos and Asbestos- Containing Products, Panel Report, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report, WT/DS135/AB/R.
Japan – Alcoholic Beverages II, Japan – Taxes on Alcoholic Beverages, Panel Report, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR.
Korea – Various Measures on Beef, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Panel Report, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R.
US – Gambling, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Panel Report, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report, WT/DS285/AB/R.
- 4
- Cited by