Diebold: Non-Discrimination in International Trade in Services: 'Likeness' in WTO/GATS

Nicolas F. Diebold (Froriep Renggli) has published Non-Discrimination in International Trade in Services: 'Likeness' in WTO/GATS (Cambridge Univ. Press 2010). Here's the abstract:

The principle of non-discrimination is fundamental to the regulation of international trade in goods and services. In the context of trade in goods, the concept of 'like products' has become a key element of the legal analysis of whether a trade obstacle violates GATT non-discrimination obligations. The equivalent concept of 'like services and service suppliers' in GATS rules on non-discrimination has received little attention in WTO jurisprudence. In light of the remaining uncertainties, Nicolas Diebold analyses the legal problems of the GATS 'like services and services suppliers' concept using a contextual and comparative methodology. The 'likeness' element is not analysed in isolation, but in context with 'less favourable treatment' and regulatory purpose as additional elements of non-discrimination. The book also explores how far theories from non-discrimination rules in GATT, NAFTA, BITs and EC as well as market definition theories from competition law may be applied to 'likeness' in GATS.

Cantore: 'How Does it Feel to be on Your Own?' Mutual Recognition Agreements and Non Discrimination in the GATS: A 'Third Party's' Perspective

Carlo Maria Cantore (Scuola Superiore Sant'Anna) has posted 'How Does it Feel to be on Your Own?' Mutual Recognition Agreements and Non Discrimination in the GATS: A 'Third Party's' Perspective (German Law Journal, Vol. 11, No. 8, 2010). Here's the abstract:

The aim of this working paper is to analyze the compatibility between two relevant provisions of the General Agreement on Trade in Services (GATS) under the World Trade Organization (WTO). The first is art. VII, Recognition, which seems to allow a Member to recognize standards of one or more Members – and not of others – without violating its GATS obligations, although this freedom should not be abused. The second is the general Non-Discrimination provision as of GATS art. II, since the aim of the GATS, at least as it reads in its preamble, is to provide a multilateral framework to trade liberalization in the services market on a non-discriminatory basis. Through the following pages, I will try to explain the rationale to sign Mutual Recognition Agreements (MRAs) and their impact on the GATS system. It is true that there is a general principle of transparency and openness of the MRAs, but it is necessary to get our hands dirty with the reality and understand if and how such an openness clause works.

The most important part of my research has been checking all the MRAs, the Unilateral Recognition provisions (GATS art. VII.4) and the Preferential Trade Agreements (PTAs) (GATS art. V) notified to the WTO secretariat, and the results of this work are, in some cases, unexpected, in terms of actors involved, number of agreements signed, and their contents.

New Volumes in the Max Planck Commentaries on World Trade Law

A number of new volumes have been published recently in the Max Planck Commentaries on World Trade Law (Maritinus Nijhoff Publishers):

• WTO - Trade in Services, edited by Rüdiger Wolfrum, Peter-Tobias Stoll, & Clemens Feinäugle
• WTO - Trade in Goods, edited by Rüdiger Wolfrum, Peter-Tobias Stoll, & Holger P. Hestermeyer
• WTO - Trade Remedies, edited by Rüdiger Wolfrum, Peter-Tobias Stoll, & Michael Koebele

Panizzon, Pohl, & Sauvé: GATS and the Regulation of International Trade in Services

Marion Panizzon (University of Bern - Law), Nicole Pohl (Zurich Univ. of Applied Sciences - Management and Law), & Pierre Sauvé (London School of Economics and Political Science - International Relations) have published GATS and the Regulation of International Trade in Services (Cambridge Univ. Press 2008). Contents include:

• Marion Panizzon & Nicole Pohl, Testing Regulatory Autonomy, Disciplining Trade Relief and Regulating Variable Peripheries: Can a Cosmopolitan GATS do it all?
• Nora Dihel, Felix Eschenbach, & Benjamin Shepherd, South-South Services Trade
• Martin Roy, Juan Marchetti, & Aik Hoe Lim, The Race towards Preferential Trade Agreements in Services: How Much Market Access Is Really Achieved?
• Marion Jansen, Comment: Is Services Trade Like or Unlike Manufacturing Trade?
• Carsten Fink & Deunden Nikomborirak, Rules of Origin in Services: A Case Study of Five ASEAN Countries
• Elisabeth Türk, Services Post Hong-Kong – Initial Experiences with Plurilaterals
• Claire Kelly, Comment: Negotiating Approaches from a Member’s Perspective
• Henry Gao, Evaluating Alternative Approaches to GATS Negotiations: Sectoral, Formulae and Others
• Rudolf Adlung, Comment: Trade Liberalization under the GATS: An Odyssey?
• Andrew W. Shoyer, Lessons Learned from Litigating GATS Disputes: Mexico – Telecoms
• Eric Leroux, From Periodicals to Gambling: A Review of Systemic Issues Addressed by WTO Adjudicatory Bodies under the GATS
• William Davey, Specificities of WTO Dispute Settlement in Services Cases
• Martin Molinuevo, Can Foreign Investors in Services Benefit from WTO Dispute Settlement?
• Mireille Cossy, Some Thoughts on the Concept of ‘Likeness’ in the GATS
• Joost Pauwelyn, Comment: The Unbearable Lightness of Likeness
• Panagiotis Delimatsis, Towards a Horizontal Necessity Test for Services: Completing the GATS Article VI:4 Mandate
• Markus Krajewski, Comment: Quis custodiet neccessitatem? Adjudicating Necessity in Multilevel Systems and the Importance of Judicial Dialogue
• Markus Krajewski, Recognition, Standardisation and Harmonisation: Which Rules for GATS in Times of Crisis?
• Fernando Pierola, A Safeguards Regime for Services
• Pietro Poretti, Waiting for Godot: Subsidy Disciplines in Services Trade
• Kanitha Kungsawanich, Comment: One Set of Rules for Fair and Unfair Trade in Services: A Possible Merger?
• Sacha Wunsch-Vincent, Trade Rules for the Digital Age
• Christian Pauletto, Comment: Digital Trade: Technology versus Legislators
• Marion Panizzon, How Human Rights Violations Nullify and Impair GATS Commitments
• Simon Walker, Comment: The Instrumental Rationale for Protecting Human Rights in the Context of Trade Services Reform
• Richard Janda & Mark Glynn, In Pursuit of the Cosmopolitan Vocation for Trade: GATS and Aviation Services
• Pierre Sauvé, Been There, Not Yet Done That: Lessons and Challenges in Services Trade

Alexander & Andenas: The World Trade Organization and Trade in Services

Kern Alexander (Univ. of Cambridge - Business) & Mads Andenas (Univ. of Oslo - Norwegian Centre for Human Rights) have published The World Trade Organization and Trade in Services (Martinus Nijhoff Publishers 2008). Contents include:

• Kern Alexander & Mads Andenas, Introduction
• Rafael Leal-Arcas, The GATS in the Doha Round: A European Perspective
• Deepali Fernandes, Twins, Siblings or Friends: The Conceptual Case of Goods and Services, Where Do We Stand and Where Could We Be Headed to?
• Mads Andenas & Stefan Zleptnig, Proportionality and Balancing in WTO Law: A Comparative Perspective
• Federico Ortino, The Principle of Non-Discrimination and its Exceptions in GATS: Selected Legal Issues
• Jan Wouters & Dominic Coppens, GATS and Domestic Regulation: Balancing the Right to Regulate and Trade Liberalization
• Mina Mashayekhi & Elisabeth Tuerk, GATS Negotiations on Domestic Regulation: A Developing Country Perspective
• Marco Bronckers & Pierre Larouche, A Review of the WTO Regime for Telecommunications Services
• Stefan Zleptnig, The GATS and Internet-Based Services: Between Market Access and Domestic Regulation
• Christine Kaufmann & Rolf H. Weber, Reconciling Liberalized Trade in Financial Services and Domestic Regulation
• Brendan McGivern, Dispute Settlement Under the GATS: The Gambling and Telecoms Cases
• Lode van den Hende, GATS Article XVI and National Regulatory Sovereignty: What Lessons to Draw from US-Gambling?
• Klint W. Alexander, Rethinking Retaliation in the WTO Dispute Settlement System: Leveling the Playing Field for Developing Countries in Asymmetic Disputes
• Abd El-Rehim Mohamed Al-Kashif, GATS’s Non-Violation Complaint: its Elements and Scope Comparing to GATT 1996
• Kern Alexander, The GATS and Financial Services: Liberalisation and Regulation in Global Financial Markets
• Wei Wang, The Prudential Carve-out
• John Cooke, Alternative Approaches to Financial Services Liberalisation: The Role of Regional Trade Agreements
• Apostolos Gkoutzinis, How Far is Basel from Geneva? International Regulatory Convergence and the Elimination of Barriers to International Financial Integration
• Wei Wang, The GATS and the Legal Framework of the Chinese Banking Sector
• Alastair Evans, International Trade in Financial Services and the GATS
• David F. Snyder, Insurance Services and Recent Trade Negotiations
• Model Schedule of WTO Commitments for Investment Banking, Trading, and Asset Management: Explanatory Memorandum
• Michael Moosberger, The GATS and Higher Education: Challenging the Nation State’s Notion of the University
• Rolf H. Weber, Cultural Diversity and International Trade - Taking Stock and Looking Ahead
• Toshiyuki Kono, The UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions

Arup: The World Trade Organization Knowledge Agreements

Christopher Arup (Monash Univ. - Business Law and Taxation) has published the second edition of The World Trade Organization Knowledge Agreements (Cambridge Univ. Press 2008). Here's the abstract:

The WTO intellectual property and services agreements (TRIPs and GATS) form the global legal framework in which governments now regulate trade in knowledge. This second edition analyses the provisions of the agreements and examines closely the thirteen years of implementation and revision. Gathering together the interpretations placed on the agreements by the WTO dispute settlement bodies, it reports on the initiatives taken by the members both to liberalise trade in knowledge and to shape international business regulation. Drawing on this, Christopher Arup assesses the future of the WTO as a global law-making institution. Three expanded case studies (legal services, genetic codes/essential medicines, and on-line media) illustrate the impact of the agreements and highlight the challenges faced by the WTO in reconciling free trade with social regulation.