Abstract
This paper we will analyze the reports issued and circulated by the Panel and by the Appellate Body in disputes involving the GATS in order to verify whether some trends have been established in the interpretation of this agreement by the DSU. The analysis will focus on three disputes (Mexico-Telecom, US-Gambling, and China-Electronic Payment Services) that are of special relevance to this article due to the fact that all the claims brought by the complainants in the requests for consultations were under the GATS. The three disputes analyzed in this paper demonstrate that DSB’s interpretation of specific commitments scheduled within the GATS is cohesive and straightforward in analyzing the commitments and the limitations imposed by Members.
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Notes
- 1.
“Article XXII: Consultation
1. Each Member shall accord sympathetic consideration to, and shall afford adequate opportunity for, consultation regarding such representations as may be made by any other Member with respect to any matter affecting the operation of this Agreement. The Dispute Settlement Understanding (DSU) shall apply to such consultations.
2. The Council for Trade in Services or the Dispute Settlement Body (DSB) may, at the request of a Member, consult with any Member or Members in respect of any matter for which it has not been possible to find a satisfactory solution through consultation under paragraph 1.
3. A Member may not invoke Article XVII, either under this Article or Article XXIII, with respect to a measure of another Member that falls within the scope of an international agreement between them relating to the avoidance of double taxation. In case of disagreement between Members as to whether a measure falls within the scope of such an agreement between them, it shall be open to either Member to bring this matter before the Council for Trade in Services. The Council shall refer the matter to arbitration. The decision of the arbitrator shall be final and binding on the Members.” Please refer to https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.
- 2.
“Article XXIII: Dispute Settlement and Enforcement
1. If any Member should consider that any other Member fails to carry out its obligations or specific commitments under this Agreement, it may with a view to reaching a mutually satisfactory resolution of the matter have recourse to the DSU.
2. If the DSB considers that the circumstances are serious enough to justify such action, it may authorize a Member or Members to suspend the application to any other Member or Members of obligations and specific commitments in accordance with Article 22 of the DSU.
3. If any Member considers that any benefit it could reasonably have expected to accrue to it under a specific commitment of another Member under Part III of this Agreement is being nullified or impaired as a result of the application of any measure which does not conflict with the provisions of this Agreement, it may have recourse to the DSU. If the measure is determined by the DSB to have nullified or impaired such a benefit, the Member affected shall be entitled to a mutually satisfactory adjustment on the basis of paragraph 2 of Article XXI, which may include the modification or withdrawal of the measure. In the event an agreement cannot be reached between the Members concerned, Article 22 of the DSU shall apply.” Please refer to https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.
- 3.
Article XXIII:3of the GATS. Please refer to https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.
- 4.
Article XXIII:1(c) of the GATT.
- 5.
Article XXIII.1 of the GATT.
- 6.
“8. In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.” Please refer to https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm.
- 7.
For updated information on disputes involving the GATS and other WTO Agreements, please refer to the WTO Dispute Settlement Gateway (https://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm).
- 8.
At its meeting on 25 September 1997, the Appellate Body report and the Panel report, as modified by the Appellate Body, were adopted by the DSB.
- 9.
The DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report, on 19 June 2000.
- 10.
The DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report, on 19 June 2000.
- 11.
On 1 June 2004, the DSB adopted the Panel Report.
- 12.
On 20 April 2005, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report.
- 13.
On 31 August 2012, the DSB adopted the panel report.
- 14.
On 9 May 2016, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.
- 15.
Celli and Sayeg (2016).
- 16.
For further information on this dispute please refer to Sayeg and Borges Furlaneto (2016).
- 17.
“Members recognizing the growing importance of trade in services for the growth and development of the world economy; Wishing to establish a multilateral framework of principles and rules for trade in services with a view to the expansion of such trade under conditions of transparency and progressive liberalization and as a means of promoting the economic growth of all trading partners and the development of developing countries; Desiring the early achievement of progressively higher levels of liberalization of trade in services through successive rounds of multilateral negotiations aimed at promoting the interests of all participants on a mutually advantageous basis and at securing an overall balance of rights and obligations, while giving due respect to national policy objectives;
Recognizing the right of Members to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet national policy objectives and, given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of developing countries to exercise this right;
Desiring to facilitate the increasing participation of developing countries in trade in services and the expansion of their service exports including, inter alia, through the strengthening of their domestic services capacity and its efficiency and competitiveness;
Taking particular account of the serious difficulty of the least-developed countries in view of their special economic situation and their development, trade and financial needs;
Hereby agree as follows:”. Please refer to https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.
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Sayeg, F.M. (2019). The Dispute Settlement Body and the GATS. In: do Amaral Júnior, A., de Oliveira Sá Pires, L.M., Lucena Carneiro, C. (eds) The WTO Dispute Settlement Mechanism. Springer, Cham. https://doi.org/10.1007/978-3-030-03263-0_15
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