Overlap between Market Access and National Treatment: Problems and Possible Solutions
Date Issued
2015
Date
2015
Author(s)
Chen, Ya-Ping
Abstract
Abstract This article examines the problems arised from overlap between market access and national treatment under GATS schedules of specific commitments, which mainly comprise of market access undertakings subject to six limitations under Article XVI and national treatment undertakings conditioned by all kind of discriminatory measures under Article XII. As many critics have pointed out the design of schedules and scheduling techniques that produce interpretive ambiguity, especially in the case a WTO Member entered Unbound under market access and None under national treatment or vice versa. Hence, a question arises whether that Member could maintain any discriminatory market access measures falling within the overlapping scope between Article XVI and XVII. This article anaylzes the overlap issue based on GATS Artilce XVI, XVII, XX:2 and the Schedule Guidelines from the following three aspects. Firstly, unlike GATT, the relationship between market access and national treatment displines under GATS remains unclear and thus the overlap is possible to create protential conflict undertakings while scheduling. Secondly, divided understandings on rules of scheduling exist among WTO Members, allowing them to use collective terms such as None and Unbound to entry in a seemingly conflict but consistent manner on their perception. Thirdly, since Members’ national schedules of specific commitments are regarded as an integrated part of GATS, rules on treaty interpretation shall be introduced and applied in the case of ambiguity. Finally, the article tries to propose possible solutions and suggests that Article XX:2 be provided some value to harmonize differenet interpretive approachs among WTO Members.
Subjects
GATS
trade in services
market access
national treatment
overlap
schedule of specify commitments
Type
thesis
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