Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 3: National treatment under the General Agreement on Trade in Services
This chapter examines the issue of national treatment under the World Trade Organisation (WTO) General Agreement on Trade in Services (GATS). It focuses particularly on the concept of a de facto breach of a national treatment obligation. The central proposition of this chapter is that it would be appropriate to transpose the approach taken in the cases recently decided under the national treatment rule in Article 2.1 of the Agreement on Technical Barriers to Trade (TBT Agreement) to the national treatment rule in Article XVII of the GATS. This involves making a clear distinction between the question of what is the service or service supplier, on both the foreign and domestic sides of the comparison, which is essentially a question of market definition, and the different question of what is the like service or service supplier, which simply requires the categories on both the foreign and domestic sides of the comparison to be defined in identical terms. It also involves accepting the proposition that the necessity or reasonableness test is embedded, by definition, in the very concept of a de facto breach of a national treatment obligation, which requires that no facts are per se excluded from the assessment, and particularly in the analysis of whether or not there is less favourable treatment. But this throws up some GATS specific issues.
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