Regulatory Autonomy and International Trade in Services

Regulatory Autonomy and International Trade in Services

The EU Under GATS and RTAs

Bregt Natens

This book considers how the interplay between multilateral and preferential liberalisation of trade in services increasingly raises concerns, both from the perspective of the beneficiaries of such liberalisation (whose rights are uncertain) and that of regulators (whose regulatory autonomy is constrained). The author shows how these concerns lead to vast underutilisation of, and strong prejudices against, the benefits of services liberalisation. The book meticulously analyses and compares the EU's obligations under the GATS and the services chapters of several RTAs to finally assess the merits of the raised concerns.

Chapter 1: Interpretation of GATS and the selected EU RTAs

Bregt Natens

Subjects: law - academic, european law, international economic law, trade law, regulation and governance

Extract

Before one can commence the analysis of constraints on regulatory autonomy resulting from obligations applicable to the EU in GATS and the services chapters of EU RTAs, it is imperative to explain how these treaties are to be interpreted. In the case of GATS, case law has developed its take on the rules of treaty interpretation extensively. In the case of EU RTAs, despite the dispute settlement mechanisms provided, no disputes have been brought to this day. Although there is some guidance in the text of each of the selected agreements, it is submitted that a presumption of WTO consistent interpretation applies to all agreements. Because the objectives of an agreement shed light on the interpretation of its provisions, these are addressed in this chapter as well. To understand many unresolved questions of GATS law, one needs an understanding of how panels and the Appellate Body (AB) have so far interpreted GATS. As treaty interpretation in the WTO has been addressed expertly elsewhere, it suffices here to briefly introduce the applicable rules. Article 3.2 of the Dispute Settlement Understanding (DSU) contains the mandate for the dispute settlement system to clarify the existing provisions of the WTO agreements in accordance with customary rules of public international law. In practice, WTO dispute settlement bodies apply Articles 31 and 32 of the Vienna Convention on the Law of Treaties(VCLT). By applying Article 31.