Misunderstandings and scare stories: Market access and national treatment commitments
is quite wrong. According to the GATS national treatment rule (Article
XVII) the answer is that the imposition of any of these conditions
when making a commitment would be perfectly legitimate. An unqualified
national treatment commitment is an undertaking that foreign suppliers
will be treated in the same way as nationals, but there are in fact no
restrictions on the number or types of conditions which may be
attached to national treatment commitments. A requirement that foreign
banks wishing to establish in the country should set up branches in
every village, for example, would also be perfectly legitimate.
National treatment limitations are simply conditions which
discriminate against foreign suppliers in favour of nationals. If the
service is not scheduled the national treatment principle does not
apply anyway. Article XIX specifically provides that developing
countries may attach to their market opening commitments conditions
designed to increase their participation in services trade—for
example on the transfer of technology.
The WDM report went on: "Should a government be allowed—for social or conservation reasons—to limit the number of golf courses being developed in an area? Under the GATS market access rules the answer is no …. The market access rules …. could effectively stop governments from limiting the number of hotels in scenic or historic areas to protect the value of a tourist site. They could prevent local jurisdictions saying no to the expansion of waste dumps."
None of this is true. Market-access commitments do not affect the right to regulate services and they do not oblige Governments to permit the entry of unlimited numbers of services suppliers. They can include limitations on the number of suppliers, the total value of transactions, the number of services operations, the number of persons to be employed, the types of legal entity permitted and the share of foreign capital. The entry "none" in a schedule is an undertaking that limitations of these kinds will not be imposed. But even in such cases, where no limitation has been scheduled, it is absurd to suggest that a Government or local authority would have to set aside planning rules because a foreign company wanted to open a hotel, set up a golf course or expand a waste dump. These are questions of domestic regulation, not market access, and foreign suppliers operating on the basis of a market-access commitment are subject to exactly the same domestic regulations as national suppliers; they have no right to exemption from planning or zoning rules, or any other kind of regulation.