gats article xvi

WT/DS285/R Page v LIST OF ANNEXES Annex A Working Procedures for the Panel in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services Annex B Request for Preliminary Rulings Annex C Panel's Questions to the Parties and Third Parties Annex D Request for the Establishment of a Panel by Antigua and Barbuda Annex E Laws relied upon by Antigua in claiming … assets of foreign banks limited to x percent of total bank assets) • (c) Total number of operations or quantity of output (e.g. Suggested Citation, Warandelaan 2Postbus 90153Tilburg, NL-5000 LENetherlands0031 13 466 8251 (Phone)0031 13 466 8047 (Fax), HOME PAGE: http://www.tilburguniversity.edu/staff/p-delimatsis, Warandelaan 2Postbus 90153Tilburg, 5000 LENetherlands, Hallerstrasse 6/8Berne, CH-3012Switzerland, Subscribe to this fee journal for more curated articles on this topic, Patient Mobility Beyond Calais: Health Services Under WTO Law, By GATS. The General Agreement on Trade in Services (GATS) was adopted in order to establish meaningful liberalization rules, while preserving the right of Members to regulate. From GATS Article XVI: 1 obliges a Member to accord market access treatment based on its service schedule. Essentially, if the scope of market access restrictions under Article XVI of GATS were deﬁned too broadly, as risks being the case after US – Gambling, scores of domestic regulations would already be prohibited and … Yash Arya. The affected Member shall notify the Council for Trade in Services of the measures it intends to take in accordance with paragraph 16, one month before exercising its right to take these measures. To that end, three provisions form the centerpiece of liberalization: market access (Article XVI GATS), national treatment (Article XVII GATS), and domestic regulation (Article VI GATS). - Article 16 and 17 of the GATS outline all the conditions of affording National treatment -- These conditions must be fulfilled unless they are written in as exceptions to the commitments -- Members' commitments can then be seen as the outcome of a two-step decision. definition), Article XIV and Article XIV bis (general and security exceptions), Article XVI (market access), Article XVII (national treatment) and Article XXVIII (definitions). <> A Summary of the GATT Articles. In particular, GATS Article XIX: provides that “the process of progressive liberalisation shall be advanced in each round” of negotiations “directed towards increasing the general level of specific commitments undertaken by Members”. Within the WTO framework, the concept on market access for services and services suppliers is provided for by Article XVI of the General Agreement on Trade in Services (GATS): Article XVI: Market Access. The measures listed comprise four types of quantitative restrictions (sub-paragraphs a-d), as well as limitations on 40, No. 12. Under Article XVI, a Member undertakes a minimum standard of treatment, and is thus free to maintain a market access regime less restrictive than set out in its schedule, as confirmed in paragraph 1 which refers to a standard of 'no less favourable' treatment. However, since Articles XVI and XVII are multilateral 'horizontal' rules applying across all sectors and constituting the overall framework for all 'bilateral' negotiations, a fundamental question is posed as to the respective weight and the relationship between the specific bilateral terms (yet) to be negotiated between WTO member states, on the one hand, and on the other hand the multilateral conditionalities already inscribed in GATS. In the].]. Drawing heavily on World Trade Organization (WTO) jurisprudence, the authors demonstrate that the RF measures in question fall within the scope of the GATS and violate the RF’s obligations under Article XVI; and further, that such violation cannot be … 6, pp. With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule. 6, Martinus Nijhoff Publishers, Leiden, pp. Keywords: WTO, GATS, trade in services, market access, liberalization, schedules, specific commitments, Suggested Citation: 367-426, Leiden/Boston: Martinus Nijhoff Publishers, 2008, 22 Pages A foot-note to Article XVI notes that If a Member undertakes a market-access com-mitment in relation to the … / Delimatsis, Panagiotis. The carve out is in Article 2 (a) of the GATS Annex on Financial Services and reads as follows: 2. If a service is covered by GATS all horizontal disciplines (such as Article II, Most-Favored-Nation, or Article III, transparency) apply to it. ]. With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule. 4. It found that the measures violate prohibitions on limiting the number of service suppliers (XVI:2(A)), the number of service operations, or service quantity (XVI:2(C)). The authors analyze several contentious issues under GATS in an exhaustive manner and provide guidance as to the adequate interpretation of various concepts. There is a lot of confusion around the interpretation of market access obligation under GATS. It could go beyond GATS by providing for a horizontal 3 0 obj Since the coercive trade-restrictive measures of the United States constitute prohibited measures under Article XVI:2(a) and (b) in all modes of supply, they violate Article XVI:2 of the GATS. This interpretation has been used to argue that a data localisation measure would not violate Article XVI … Since they are almost identical and only a few precedents relating to GATS Article XIV exist, GATT Article XX is mainly described in this Chapter. stream The. GATS Article XVII imposes an additional scheduling requirement: In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers. What services are covered? referred to as the “built in” agenda. 367-395. 27 The risk is that the per se prohibition of market access (Article XVI) encroaches on the regulatory autonomy of WTO Members to set domestic regulations, undermining the delicate balance … In: The World Trade Organization and Trade in Services Authors: Lode Van Den Hende and Herbert Smith LLP new licenses subject to economic needs) • (b) Value of transactions or assets (e.g. National Treatment Under Gats. in Article XVI GATS could encroach on the scope of application of Article VI GATS, exposeawiderange ofWTO Members’ internalregulations toanextensive test, and affect their regulatory autonomy. GATT Article XX consists of subparagraphs (a) to (j) that list the policies that may be deemed Robert Read. Article XI: Payments and Transfers). Max Planck commentaries on world trade law, no. GATS – Article XVI (Jurisprudence) 3 measures … are defined as'). This contribution is the most comprehensive treatise to date of the GATS market access provision. Downloadable! Last revised: 24 Oct 2010, Tilburg Law and Economics Center (TILEC); Tilburg Law School. Article XVI market access commitments may find their ability to engage in these curtailed. countries. The second are specific commitments which are negotiated undertakings particular to each GATS signatory. WTO tribunalists would look to the ample jurisprudence from GATT Article XX and GATS Article XIV, which lays out a host of ways in which countries can violate GATS under certain conditions, like when a measure is "necessary to protect human, animal or plant life or health." MAX PLANCK COMMENTARIES ON WORLD TRADE LAW, WTO - TRADE IN SERVICES, Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, eds., Vol. THE GATS AND INTERNET GAMBLING. Article I(3) of the GATS excludes “services supplied in the exercise of governmental authority”. This paper. lating GATS Article XVI:1 guaranteeing market access. Downloadable! GATS Article XVI: 1 obliges a Member to accord market access treatment based on its service schedule. new licenses subject to economic needs) • (b) Value of transactions or assets (e.g. GATS Article XVI:2 gives a list of limitation measures on market access that a Member should not take unless otherwise specified in its service schedule. Interpretation 4. A Summary of the GATT Articles. According to Article XIX, WTO Members “shall enter into successive rounds of negotiations” to achieve “a progressively higher level of liberalisation.” The coverage of the GATS is very wide: all service sectors are covered with the exception of “services supplied in the exercise 367-426, Leiden/Boston: Martinus Nijhoff Publishers, 2008, Available at SSRN: https://ssrn.com/abstract=1280219. Rethinking Retaliation in the WTO Dispute Settlement System: Leveling the Playing Field for Developing Countries in Asymmetic Disputes Klint W. Alexander 14. Delimatsis, Panagiotis and Molinuevo, Martin, Article XVI GATS: Market Access (2008). GATS Article XIV, which controls trade in services, has provisions similar to GATT Article XX. Notwithstanding Article II, such a modification or withdrawal may be implemented solely with respect to the modifying Member. To that end, three provisions form the centerpiece of liberalization: market access (Article XVI GATS), national treatment (Article XVII GATS), and domestic regulation (Article VI GATS). Article XVI market access commitments may find their ability to engage in these curtailed. National Treatment Under Gats. The GATS contains two sorts of provisions. A Member grants full market access in a given sector and mode of supply when it does not maintain in that sector and mode any of the types of measures listed in Article XVI. Domestic Regulation. domestic regulation under Article VI:4 of GATS. Again, the concept applies only to sectors listed in a Member's schedule, and only to the extent that no limitations have been inscribed to cover inconsistent measures. 1. If that measure is taken "for prudential reasons," including the ones listed, it is permitted despite the Article XVI violation. … All limitations in schedules therefore fall into one of these categories. �P�D��T��X��j=-TIh!$t^ۚ�²��3D&G��l��B��i*d�r�?�KRPqdJ��뙳�R��(��+��PGaY��&�� .jI`L��.�B��E��$t��XA�w G8-�z�:�y�x3d�`�Jǥ��+�R6��R)(aw��mã��)�%�� (!lkJ�څpo��G �f>$%�R��J)G ;*��pWG aY�ś(�6. The GATS does not provide clear rules to resolve situations where there is a conﬂict between two applicable provisions. The GATS applies in principle to all service sectors, with two exceptions. The scope of the Agreement is also relevant if a member has made specific commitments concerning market access (Article XVI) and national treatment (Article XVII). 1 0 obj In particular, GATS Article XIX: provides that “the process of progressive liberalisation shall be advanced in each round” of negotiations “directed towards increasing the general level of specific commitments undertaken by Members”. Delimatsis, P & Molinuevo, M 2008, Article XVI GATS (Market Access). Conversely, domestic regulations affecting the supply of services are permitted if they are non-discriminatory.34 The complaint based on Article XVI The). The article examines the World Trade Organization (WTO) Appellate Body's ruling in US—Gambling that United States (US) prohibitions on the foreign supply of gambling and betting services via the internet to consumers in the US violated US market access commitments under Article XVI of the General Agreement on Trade in Services (GATS). Download. Article XVI:(a)- (f) • (a) Number of service suppliers (e.g. <> Bregt Natens 1. In: The World Trade Organization and Trade in Services Authors: Lode Van Den Hende and Herbert Smith LLP in W Wolfrum, P-T Stoll & C Feinäugle (eds), WTO - Trade in services. The scope of the Agreement is also relevant if a member has made specific commitments concerning market access (Article XVI) and national treatment (Article XVII). First of all, by scheduling limitations under GATS Article XVI:2(e), a Member specifies the types of legal entity through which a supplier may supply a service. GATS and, to varying degrees, have assumed commitments in individual service sectors. of considerable importance for the future of the GATS. The Articles of the General Agreement on Tariffs & Trade (GATT) were originally agreed in 1947 (referred to as GATT 1947) and subsequently, with some revisions, in 1994 (referred to as GATT 1994) as part of the Uruguay Round negotiations that created the World Trade Organization (WTO). To learn more, visit our Cookies page. GAMBLING,. A. "Jm�⁨�Ȳ�v��Woa�@g߽�Q��*X�Q��U \��k�3x�� Z|�?T�*.��R�V�rlJ��vT Countries list their “specific commitments” pursuant to GATS. Robert Read. GATS Article XVI and National Regulatory Sovereignty: What Lessons to Draw from US—Gambling? This page was processed by aws-apollo1 in, http://www.tilburguniversity.edu/staff/p-delimatsis. A foot-note to Article XVI notes that If a Member undertakes a market-access com-mitment in relation to the … The General Agreement on Trade in Services (GATS) was adopted in order to establish meaningful liberalization rules, while preserving the right of Members to regulate. endobj applied the requirements of GATS Article XVI (Market Access) to the U.S. measures and determined that the measures were in violation of the GATS. So, let's say you have a measure that violates GATS Article XVI (Market Access). The first are general obligations, some of which apply to all service sectors (e.g. Download Full PDF Package. The General Agreement on Trade in Services (GATS) is a treaty of the World Trade Organization (WTO) which entered into force in January 1995 as a result of the Uruguay Round negotiations. Lode van den Hende 13. First of all, by scheduling limitations under GATS Article XVI:2(e), a Member specifies the types of legal entity through which a supplier may supply a service. This procedure has only been invoked one other time, in a situation involving re-negotiation of EU GATS commitments in relation to the enlargement of the EU. Rethinking Retaliation in the WTO Dispute Settlement System: Leveling the Playing Field for Developing Countries in Asymmetic Disputes Klint W. Alexander 14. This interpretation has been used to argue that a data localisation measure would not violate Article XVI … Articles II, XVI and XVII shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale. Even if the United States did make speciﬁc commitments on gambling, the US ban on remote gamblingisnot,as boththe panel andthe Appellate Bodyfound,a ‘market access restriction’ that is, in principle, prohibited under Article XVI of GATS. <> Delimatsis, Panagiotis and Molinuevo, Martin, Article XVI GATS: Market Access (2008). "4 5. 18. National Treatment Under Gats. GATS Article XVI and national regulatory sovereignty: what lessons to draw from US—Gambling? … What services are covered? It has been repeatedly argued by authors, especially in the context of data localisation laws, that the phrase “in the form of numerical quotas” under Article XVI:2 of GATS refers to the requirement of the restriction to be expressed in form of a number. Consequently, it takes issue with previous studies that criticised the WTO adjudicating bodies in the aftermath of the US - Gambling ruling, because they purportedly interfered with the WTO Members' regulatory autonomy. GATS Article XVI prohibits the imposition of certain limitations of predominantly quantitative nature such as those relating to the number of suppliers (e.g., monopolies), the total number of service operations, or the total value of service transactions. 2. Whereas the cross-border supply of these services was denied by the US claiming that all types of Internet-supplied gambling were illegal (from domestic or foreign providers alike), Antigua claimed that the US could not uphold such a prohibition in the face of GATS mode 1 commitments. It does not constrain the imposition of restrictions on domestically-owned or -controlled suppliers and their produce. endobj Furthermore, the agreement shall provide for market access (GATS Article XVI) for services sectors in the same way as commitments are undertaken, under the GATS. 6, pp. GATS Article XVI:2 gives a list of limitation measures on market access that a Member should not take unless otherwise specified in its service schedule. Posted: 7 Oct 2008 A closer look at GATS Article XVI. 6, 2006, p. 1059-1080. It would appear that such restrictions are not covered. H^q\:�F5ɑ�� }�l�� A short summary of this paper. Download PDF. The GATS “market access” rules (Article XVI) go well beyond requiring that governments treat foreign firms the same as domestic firms. 1. In: Journal of World Trade, Vol. 19 Full PDFs related to this paper. March 2007 Cambridge Review of International Affairs 20(1):93-110 Countries list their “specific commitments” pursuant to GATS. Under Article XXI, a Member may withdraw specific commitments, but must negotiate with "affected Members" over "compensation" for the withdrawn commitments. Research output: Contribution to journal › Article › Scientific › peer-review Thus a Member may allow the supply of a service through a subsidiary but not a branch. services agreement into the GATS and it shall incorporate GATS core articles. National treatment under Article XVII of the GATS implies the absence of all discriminatory measures that modify the conditions of competition in favour of domestic services or services suppliers. In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. The treaty was created to extend the multilateral trading system to service sector, in the same way the General Agreement on Tariffs and Trade (GATT) provides such a system for merchandise trade. There is a lot of confusion around the interpretation of market access obligation under GATS. Asaresult, thistask has beendelegated %PDF-1.7 services are covered, and which are not. A market access commitment under Article XVI implies the right to supply by all means of delivery, unless otherwise specified in the Member’s schedule “in the form of numerical limitations” in Article XVI:2(a) should not be read too rigidly, covers “limitations which, even if not in themselves a The agreement shall provide for market access (GATS Article XVI) for services sectors in the same way as commitments are undertaken, under GATS. 6. Access under Article XVI. If a service is covered by GATS all horizontal disciplines (such as Article II, Most-Favored-Nation, or Article III, transparency) apply to it. The Panel found that a number of the U.S. federal and state laws at issue violated the "market access" rules in Article XVI of the General Agreement on Trade in Services (GATS). 2 0 obj Markus Krajewski, A Critical Look at the Prospects for Robust Rules for Services in Preferential Trading Agreements, By GATS and, to varying degrees, have assumed commitments in individual service sectors. 6, pp. x��]m��~��E>i��v�$�˴(മqAҢ�!I��ӝ�7KwN��۾��t�� 3C�g8|�xzR%��4�de�%/h�5��V�ӓ��OO��8=��?H&��(Yf$��.J� ��*}q�ʼ�Ad�k��Zj�7�'��~��_Y~�g��٫��fߞ��V�}z�q?�/�t�zX��ɕ��J�1��sej=�{Ng�sR�~�K�j� �h��klY��Ek�M=R�ͫ��]��Z ��Aq��7��2$�/e� �+�Q�)h�q��$b��꠫'@��L��o��*PZа resident persons or branches, or between related persons or branches of the same. In this respect, the paper contends that the Appellate Body correctly interpreted the measures at issue to be quantitative restrictions and thus fall under Article XVI GATS. 2. READ PAPER. The Articles of the General Agreement on Tariffs & Trade (GATT) were originally agreed in 1947 (referred to as GATT 1947) and subsequently, with some revisions, in 1994 (referred to as GATT 1994) as part of the Uruguay Round negotiations that created the World Trade Organization (WTO). Thus a Member may allow the supply of a service through a subsidiary but not a branch. Such limitations are prohibited if the relevant Member undertook commitments in a given sector and did not inscribe these limitations in its GATS Schedule. In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. 17. 3. endobj MAX PLANCK COMMENTARIES ON WORLD TRADE LAW, WTO - TRADE IN SERVICES, Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, eds., Vol. Lode van den Hende 13. The General Agreement on Trade in Services (GATS) Article XVIII on Additional Commitments is among the least understood articles of the GATS, and it has received the least attention among the articles regulating specific commitments. Article XVI:2 of the GATS lists six categories of restriction which may not be adopted or maintained unless they are specified in the schedule. Comparable to the MFN clause, the scope of GATS Article XVI is confined to the treatment of services and service suppliers of other Members. 3. %�� It runs as follows. First they decide which sectors they want open to the market access of the GATS. GATS Article XVI and National Regulatory Sovereignty: What Lessons to Draw from US—Gambling? <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 16 0 R 19 0 R 20 0 R 22 0 R 23 0 R 25 0 R 26 0 R 27 0 R 29 0 R 30 0 R 31 0 R 33 0 R 34 0 R 35 0 R 37 0 R 39 0 R 43 0 R 44 0 R 46 0 R] /MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S>> Article XVI:(a)- (f) • (a) Number of service suppliers (e.g. Jan Wouters, We use cookies to help provide and enhance our service and tailor content.By continuing, you agree to the use of cookies. Obligation on market access is stated in Article XVI of the GATS that “each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided under the terms, limitations and conditions agreed and specified in its Schedule.” The article … and A further consideration is whether the market access restrictions permitted under Article XVI:2 of GATS, which are all expressed in quantitative terms, could encompass restrictions on the means of delivery of a service. services are covered, and which are not. MAX PLANCK COMMENTARIES ON WORLD TRADE LAW, WTO - TRADE IN SERVICES, Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, eds., Vol. LIMITATIONS ON MARKET ACCESS (ARTICLE XVI) 8. 4 0 obj It has been repeatedly argued by authors, especially in the context of data localisation laws, that the phrase “in the form of numerical quotas” under Article XVI:2 of GATS refers to the requirement of the restriction to be expressed in form of a number. Article I(3) of the GATS excludes “services supplied in the exercise of governmental authority”. Article XVI GATS reads as follows: “1. assets of foreign banks limited to x percent of total bank assets) • (c) Total number of operations or quantity of output (e.g. ��QYp�#� �u�:G�,��KxU�UPл��w�o��W7��DU�]o�� =��_��/s9��O�%.��_agy�'!'Dw�SJ�l�P/Ef�꫒�]EƚB06ҋ�Rk�8�u�:P��XFE�T��k~Z��*݌#��f$KMDV�^�|�b�*c? Within the WTO framework, the concept on market access for services and services suppliers is provided for by Article XVI of the General Agreement on Trade in Services (GATS): Article XVI: Market Access. Some commentators criticized this interpretation on the grounds that it could extend the scope of Article XVI GATS to indirect quantitative restrictions that should normally fall within the purview of Article VI GATS. Gats Article XVI and National Regulatory Sovereignty: What Lessons to Draw from Us—gambling? In this recent memo, Global Trade Watch expresses concern about the GATS "prudential carve out" in the area of financial services regulation. Don't gamble with GATS - The Interaction between Articles VI, XVI, XVII and XVIII GATS in the light of the US - gambling case. lating GATS Article XVI:1 guaranteeing market access. Whereas the cross-border supply of these services was denied by the US claiming that all types of Internet-supplied gambling were illegal (from domestic or foreign providers alike), Antigua claimed that the US could not uphold such a prohibition in the face of GATS mode 1 commitments. MFN, transparency) and some only to scheduled specific commitments (e.g. The GATS applies in principle to all service sectors, with two exceptions. Article XVI.2 are subject to scheduling Approval procedures or licensing and qualification requirements, such as financial soundness or membership in a professional organization, are frequently stipulated as conditions to obtain a licence, they do not need to be scheduled under market access 367-426, Leiden/Boston: Martinus Nijhoff Publishers, 2008, Available at SSRN: If you need immediate assistance, call 877-SSRNHelp (877 777 6435) in the United States, or +1 212 448 2500 outside of the United States, 8:30AM to 6:00PM U.S. Eastern, Monday - Friday. person, in order to safeguard the Member's tax base. J. Anthony Vanduzer, By Rather, these rules flatly prohibit governments from placing certain limits on, or applying certain policies to, foreign service operations in covered service sectors. Article XVI GATS stipulates six prohibited market access restrictions for services. Article XVI GATS reads as follows: “1. Under UNxQEt�vWNDQFe�u,#DX��qmC�"Q1�jPqc�P ��"7a��X��C��n�YT]u��]ը�f9�=�?�r��Ƭ\�G ��DQ��)*�4D�b-O��7
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