"general Agreement On Trade In Services (gats), Legally Binding Studies

Ever since the creation of the General Agreement on Trade in Services (GATS), measures by members affecting trade in services have been regulated by the multilateral trading system. The theme of this dissertation is the legal binding effect of GATSThe dissertation is organized in a straightforward way with four chapters in addition to the preface and the conclusion.Chapter 1 presents a general analysis of the legal binding effect of GATS. Due to the abstractness of its provisions, the binding effect of GATS may depend heavily on the interpretation by the DSB when it deals with the related disputes. In view of the background of the WTO legal system, the architecture and provisions of GATS are drafted by an analogy to GATT 1947, and consequently the interpretation of its norms by the DSB has been deeply influenced by that of the GATT panels. Other WTO instruments that bear on trade in services have also exerted some influence on the binding effect of GATS.Chapter 2 elaborates some important legal concepts in GATS and points out the tendency to expand the scope of GATS in application. The meaning of the highly qualified term "services provided in the exercise of governmental authority" as an exclusion is unclear and thus there is the possibility to be narrowly interpreted. Therefore such an exclusion has little or no practical effect. The fact that GATS covers services provided through "commercial presence" greatly expands its coverage The interpretation of the term 'affecting' by the Panel and the Appellate Body in the Bananas case gives a broad reach to the GATS. In the services context there is much probability that a member may be brought before the DSB to give account for the wrongful conduct of its territorial units.Chapter 3 reviews the Most-Favoured-Nation Treatment and National Treatment clauses of GATS A number of factors strengthen the actual binding effect of thetwo provisions: First, the approach that is likely to be adopted by the Panel and Appellate Body to define the 'likeness" of services and "service suppliers" could entail a broad notion of these two terms. Second, "treatment no less favourable" means the prohibition of both de jure and de facto discrimination. Third, the "aim and effects" of a national measure is not taken into account when assessing the measure's consistency with the GATS non-discrimination clauses.Chapter 4 analyzes two major exceptions contained in GATS and brings out an important fact that the real effect of such exceptions should not be over-estimated Since Article XIV of GATS (General Exceptions) is modeled on Article XX of GATT which had been interpreted very restrictively in the dispute settlement practice of the GATT/WTO, there is little reason to hold an optimistic view that Article XIV can always be invoked by a member to justify its challenged measures in the related disputes. Moreover, the list of permitted legitimate objectives in Article XIV of GATS is considerably shorter than that in Article XX of GATT. The negotiations on emergency safeguard rules for services have been in deadlock In terms of the current mode and pace of discussion, it is hard for the negotiations to come to an end by the deadline of 15 March 2004. China should support the introduction of such rules in the services context and look after its own interests in the negotiations.