2011年-WTO世界贸易组织_Fog_in_GATS_commitments__Boon_or_bane__23页_198kb

Summary of "FOG in GATS Commitments - Boon or Bane?"

Core Content

This paper examines the issue of "FOG" (Foggy Obligations and Generalizations) in GATS (General Agreement on Trade in Services) commitments, focusing on how these vague or unclear entries affect the clarity, transparency, and comparability of trade obligations among WTO Members. The study highlights the challenges in interpreting and implementing these commitments, especially in the context of the Doha Development Agenda (DDA) negotiations, and suggests potential remedies to enhance the quality of scheduling language.

Main Viewpoints

• FOG as a Problem: FOG entries in GATS schedules can lead to misinterpretation and inconsistency in trade obligations, undermining the transparency and predictability that the WTO aims to ensure.
• Origins of FOG: These entries stem from the novelty of the GATS, the lack of experience among administrations, and the absence of clear benchmarks for access levels. Some Members may have preferred vague language to maintain flexibility in future policy adjustments.
• Impact of FOG: While not immediately costly, FOG can create long-term economic inefficiencies and legal uncertainties. It may also complicate dispute resolution and hinder the harmonization of commitments across Members.
• Need for Technical Refinements: The Doha Round drafting conventions allow for technical refinements that do not alter the scope or substance of commitments. These refinements are crucial for improving clarity and consistency in GATS schedules.

Key Information

I. GATS Structure and Flexibility

• The GATS includes four modes of supply: mode 1 (cross-border), mode 2 (consumption abroad), mode 3 (commercial presence), and mode 4 (presence of natural persons).
• Mode 3 (commercial presence) is the most economically significant, accounting for over 55% of GATS-covered transactions.
• The positive-list (bottom-up) approach allows Members to specify sectors and access levels, but this flexibility can lead to imprecise or unclear commitments.

II. Types of Market Access Limitations

• Article XVI:2(a)-(d) includes six types of quantitative restrictions on market access, such as:
  • Limitations on the total number of service suppliers.
  • Limitations on the total value of service transactions or assets.
  • Limitations on the total number of service operations or output.
  • Limitations on the number of natural persons employed in a sector.
• These restrictions are often discriminatory or non-discriminatory, and their interpretation can be ambiguous.
• Non-discriminatory measures (e.g., economic needs tests) are not clearly addressed in the GATS or Scheduling Guidelines, leading to potential misinterpretation.

III. National Treatment Obligations

• Article XVII of the GATS is open-ended, capturing any measure that modifies competition conditions in favor of domestic services or suppliers.
• This creates a broader scope for national treatment limitations, which may not always align with the intent of the Agreement.
• The Scheduling Guidelines (S/L/92) provide clarity on common national treatment limitations, such as discriminatory subsidies, fees, and nationality requirements.

IV. Doha Round and FOG

• The Doha Round introduced drafting conventions that allow for technical refinements without altering the scope or substance of commitments.
• Despite this, FOG remains prevalent, especially in newly included subsectors, where 16% of sector commitments contain elements of FOG.
• Acceding countries have shown greater clarity in their schedules, likely due to the pressure of negotiations and the need for alignment with existing commitments.

V. Remedial Actions

• Technical refinements should be prioritized to ensure consistency with GATS provisions and the Scheduling Guidelines.
• A certification procedure exists for modifying schedules after a 45-day waiting period, provided no objections are raised.
• Comprehensive trade negotiations (such as the DDA) provide a better opportunity to address FOG through coordinated efforts and mutual agreement.

Conclusion

The paper concludes that while FOG in GATS commitments is a persistent issue, it is not insurmountable. Technical refinements, especially in the context of the Doha Round, offer a viable path to improving clarity and consistency. The focus on mode 3 commitments (commercial presence) is particularly important, as they represent the largest share of GATS trade. Enhancing scheduling practices is essential for promoting transparency, predictability, and the effective functioning of the multilateral trading system in services.