RESEARCH AND ANALYSIS: WORKING PAPERS
Determining “likeness” under the GATS: Squaring the circle?
The concept of “like services and service suppliers” used in the General Agreement on Trade in Services (GATS) is still very much uncharted territory. The few dispute cases involving national treatment and most-favoured-nation treatment claims under the GATS are vague concerning the criteria which should be used to establish “likeness”. Discussions among WTO Members on this subject have remained limited and inconclusive. Perhaps the only point on which everybody agrees is that a determination of “likeness” under the GATS gives rise to a wider range of questions — and uncertainties — than under the GATT. The intangibility of services, the difficulty to draw a line between product and production, the existence of four modes of supply, the combined reference to like services and like service suppliers, and the lack of a detailed nomenclature are some of the factors which complicate the task of establishing “likeness” in services trade.
This contribution focuses on the concept of “likeness” in the context of the national treatment obligation (Article XVII of the GATS). It discusses the possible implications of the combined reference to “like services and service suppliers”, as well as the relevance and role of the modes of supply in determining “likeness”. It also examines whether the criteria developed by GATT case-law (physical properties, classification, end-use and consumer tastes) can be mechanically transposed to services trade and how far they may contribute to establishing “likeness” under the GATS. It then discusses whether other parameters, such as the regulatory context or an “aim and effect” type approach could be relevant
Manuscript date: September 2006
WTO, General Agreement on Trade in Services (GATS), national treatment
JEL classification numbers
K33, F13, L80
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This is a working paper, and hence it represents research in progress. This paper represents the opinions of the author, and is the product of professional research. It is not meant to represent the position or opinions of the WTO or its Members, nor the official position of any staff members. Any errors are the fault of the authors. Copies of working papers can be requested from the divisional secretariat by writing to: Economic Research and Statistics Division, World Trade Organization, rue de Lausanne 154, CH 1211 Geneva 21, Switzerland. Please request papers by number and title.
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