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Vendredi
6 juillet
IV:
Services
Modérateur:
B.K. Zutshi — ancien Ambassadeur de l'Inde auprès de l'OMC
REGULATION
AND LIBERALIZATION UNDER GATS
Summary
of the discussions:
On
regulation and liberalization under GATS, the debate focussed on:
the Members' rights to regulate, the need to improve the general
understanding of the GATS agreement, the WTO’s work on domestic
regulation, as well as the need to clarify the benefits of
liberalization under the GATS.
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Some
speakers emphasised the importance of regulatory transparency
through the publication of measures at all levels of government,
identifying the officials responsible for administering
regulations, and providing opportunity for the appeal of
administrative decisions.
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Necessity
requirements for regulations were considered useful by some to
help ensure the creation of good regulations, and preference was
expressed by some for the creation of general, rather than
sectoral, disciplines. It was clarified that, under the GATS,
any disciplines that may be developed on domestic regulation
would not necessarily be of general application. The disciplines
developed for accountancy, for example, are applicable only to
scheduled commitments in the sector.
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Consideration
of the level of development of the regulatory framework at the
national level was important for another speaker, who advocated
caution when creating regulatory disciplines. Concern was
expressed that prior comment provisions (as a type of
transparency requirement) could impinge of the sovereign
decision-making right of governments.
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Concern
was also expressed over whether the GATS preamble, which
explicitly recognizes the right of governments to regulate, and
to create new regulations, was equally legally binding as the
main GATS text. The response was affirmative, and that the
entire GATS agreement has been deliberately structured to
protect the regulatory rights of governments through its great
flexibility to accommodate government policy requirements.
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A
question was also raised as to why the GATS did not contain an
exceptions provision for the protection of exhaustible
resources, as found on the goods side in the GATT agreement. The
reply was that, again, the flexibility of the GATS with respect
to non-discriminatory regulations permits governments to easily
accommodate any concern in this regard.
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Participants
also discussed issue of whether Article XIX of the GATS on
progressive liberalization could force developing countries to
open services sectors before they were ready. The response was
that the GATS make no requirement for governments to open any
particular sector. In addition, the GATS explicitly states there
shall be appropriate flexibility for individual developing
country members to open fewer sectors and to liberalize fewer
types of transactions.
PARTICIPATION
ON DEVELOPING COUNTRIES
Summary
of the discussion:
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The
"development dimension" is reflected in several
features, such as the bottom-up approach; the principle of
progressive liberalization; the notion of successive rounds of
negotiations; the right to regulate; the provisions on
appropriate flexibility for Developing Countries; and the fourth
mode of supply. In summary, the GATS structure allows countries
to open up services sectors according to of their development
needs.
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The
balance of current concessions between Developed and Developing
Countries was discussed. It was acknowledged that the Developing
Countries did not make significant commitments on services in
the Uruguay Round, except in basic telecommunications and
financial services. They did not gain from commitments by their
more developed trading partners either, as these remained very
limited in sectors and modes of export interest to them.
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The
importance of services for development was also discussed, in
particular the contribution of infrastructural services, such as
transport, distribution or telecommunications. Participants
seemed to agree that Developing Countries needed to strengthen
the service supply side by additional investment, including FDI,
and greater competition. However, the point was also made that
liberalization did not mean de-regulation. On the contrary,
further liberalization requires an appropriate regulatory
framework to sustain it. Developing Countries need to create the
regulatory capacity necessary to reap the benefits of
liberalization.
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In
the latter context, the issue of technical cooperation and
capacity building was raised. Capacity building was needed to
improve domestic regulatory processes and to ensure that
Developing Countries would be able to implement their
multilateral commitments. It was recognized that there were
limits to what the WTO Secretariat could deliver in that area; a
more comprehensive and coordinated approach might be needed,
involving other international organizations or Developed
Countries' agencies.
Firstly,
the objective of raising the overall level of commitments.
Secondly,
the need to identify areas of interest. Some participants felt
that Developing Countries should adopt a more pro-active role in
these negotiations. The Movement of Natural Persons (Mode 4) was
highlighted as an area of interest. Sectoral priorities should
also be identified, and particular reference was made to the
relevant provisions of Article IV of GATS.
Thirdly,
the recognition of autonomous liberalization undertaken since
previous negotiations. It was important that developing
countries felt they were getting something in return for their
own liberalization moves. Basic Telecommunications was mentioned
as a case in point.
Finally,
the need to improve the dialogue between policymakers,
regulators, the business community and NGOs at the national
level. Better internal coordination could help developing
countries to identify and overcome their weaknesses and to
capitalize on their strengths in the current negotiations.
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