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© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO WTO Trade in Services II Professor dr. juris Ola Mestad Centre for European Law and Scandinavian Institute of Maritime Law International Economic Law Course Spring 2009
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO US - Gambling The most important GATS Appellate Body report –Antigua and Barbuda – United States _e.htm United States – Measures affecting the cross-border supply of gambling and betting services, 7 April 2005, WT/DS285/AB/R Further development –Article 21.3 (c) Arbitration Report 19 August 2005 –Article 21.5 Panel Report 30 March 2007 –Article 22.6 Arbitration Report 21 December 2007
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Issues in the Appellate Body Report The measures The specific commitments of the US Market access restrictions, GATS Article XVI General Exceptions, GATS Article XIV
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Some Main Rules of GATS Most-Favoured-Nation (Art. II) –No discrimination between different foreign service providers Market access (Art. XVI) –Right to provide services to or within a country National treatment (Art. XVII) –No discrimination between foreign and national providers Domestic regulation (Art. VI) –All general national measures shall be ”administered in a reasonable, objective and impartial manner Defence: General Exceptions (Art. XIV)
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Measures A total prohibition as a measure? –Not accepted – para 126 GATS Article XXVIII –(a) “measure” means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form; Three selected federal laws as measures –Accepted - para 153
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Specific US Committments See US schedule, AB report at p and para 162 Scheduling based on 4 modes of delivery of services –From one member territory to another (cross border) –In one member territory to service consumer of another member (consumption abroad) –Supplier of one member with commercial presence in another territory –Presence of service supplying natural person in territory of another member
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO What is Gambling? Sporting? Other recreational services Entertainment services?
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Problem of Market Access Interpretation of Article XVII The specified measures in Article XIV
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XVI: Market Access 1. 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. 2. In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as: (a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test; … (c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Function of General Exceptions A defence to violations Parallel to GATT Article XX
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XIV: General Exceptions Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (a) necessary to protect public morals or to maintain public order; …
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XIV: General Exceptions Object, Art. XIV a) Necessity, Art. XIV a) Discrimination, the chapeau of Art. XIV
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO US – Gambling Conclusion The US is in violation of GATS Article XVI
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The exception for some public services in GATS Art. I.3 GATS covers all international trade in services ”except services supplied in the exercise of governmental authority”, ref. Art I.3.b. which means: ”any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers” This is a very narrow exception –Probably mainly not important in most cases
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Preparation for Next Week Check your home country’s GATS commitments on education Read Panagiotis Delimatsis, “Due Process and “Good” Regulation embedded in the GATS – Disciplining Regulatory Behaviour in Services Through Article VI of the GATS”, 10 Journal of International Economic Law (2007) pp
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IDEAS Workshop, Bangkok, 8-9 Dec, 2009 Shefali Sharma, Third World Network.
TACD Financial Services Policy Committee Lori Wallach Public Citizens Global Trade Watch Washington, D.C. June.
Overview of the TBT Committee's Work on Conformity Assessment and of the Relevant Provisions of the TBT Agreement Ludivine Tamiotti WTO, Trade and Environment.
© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article 82 - introduction Regulates unilateral behaviour by one undertaking or more undertakings Can only.
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Prof. Dr. Lawan Thanadsillap akul Investment Liberalisation under FTAs and Some Legal Issues in International Law Prof. Dr. Lawan Thanadsillapakul.
Short cut or long road? Equivalence, international standards and the GATS Julia Nielson, OECD WTO Workshop on Domestic Regulation Geneva 29 March 2004.
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International investment agreements: key issues and features Thomas Westcott Legal Advisor UNCTAD.
FINANCIAL SECTOR REGULATION AND THE GATS PRESENTATION BY SEBASTIAN SAEZ CONSULTANT CONSULTANT Views expressed are personal GENEVA – MARCH 2004.
Transparency Procedures in the TBT Agreement WTO, Trade and Environment Division.
Current Developments in Domestic Climate Mitigation Measures Price-based Instruments and relevant WTO rules Ludivine Tamiotti, Counsellor Trade and Environment.
Presentation on the Agreement on Import Licensing Procedures By Shashank Priya, Director, Department of Commerce.
The International Legality of Plain Packaging Eric LeGresley
1 SPORT AND COMPETITION LAW AT EU LEVEL beyond the White Paper on Sport Tilburg University, Spring semester 2010 MICHELE COLUCCI
State Aid and Public Procurement for European Territorial Cooperation programmes Overview and Principles of Public Procurement Katrin Stockhammer, INTERACT.
1 MOVEMENT OF NATURAL PERSONS UNDER THE GATS Hamid Mamdouh Director Trade in Services Division, WTO IOM / World Bank / WTO Seminar on Trade and Migration,
19TH ANNUAL INTELLECTUAL PROPERTY LAW & POLICY CONFERENCE Fordham University, New York April 28 and 29, 2011 THE ROLE OF COLLECTING SOCIETIES: PROMISES.
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Latest development in EU legislation – national implemention issues 21st IFTTA Conference Sao Paulo, Brasil, 2-6 October, 2009 Dr Gyenizse Dorottya Hungary.
Settlement of Trade Dispute Dr. Mrs. Vijaya Katti Professor & Chairperson, IIFT New Delhi.
EMERGING COMPETITION LAWS IN INDIA: AN ACADEMICIANS PERSPECTIVES Dr.(Mrs.) Vijaya Katti Professor & Chairperson (MDPs) Indian Institute of Foreign Trade.
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