Efforts to import parts of failed TiSA into services DR thwarted
Proposals said to be drawn from failed talks on liberalizing trade in services provoked intense debate at a recent meeting of the WTO body charged with negotiating disciplines on domestic services regulation.
by D. Ravi Kanth
GENEVA: Many developing and least-developed countries on 9 May thwarted attempts by the chairperson of the WTO Working Party on Domestic Regulation (WPDR) to steamroll discussions on proposals apparently incorporated from the failed Trade in Services Agreement (TiSA) negotiations, services negotiators told the South-North Development Monitor (SUNS).
The developing and least-developed countries – Cameroon, Rwanda on behalf of the African Group, South Africa, Uganda which coordinates the least-developed countries (LDCs) group, Bolivia, and Cuba – raised procedural and systemic objections over the manner in which the chair, Katarzyna Stecz from Poland, sought to press ahead with informal discussions of the proposals based on requests from the proponents, said services negotiators who asked not to be quoted.
The proponents, which included the European Union, Australia, Chile, Hong Kong (China), Switzerland, New Zealand and Colombia, sought to clarify their respective domestic regulation proposals on the “administration of measures”, “development of measures” and “transparency”, and introduced their new proposal on “technical standards.”
These proposals, according to developing-country services negotiators, are being incorporated from the failed TiSA negotiating text.
The developing countries asked the chair for clarifications on how she intended to proceed with the discussions in informal mode. Citing procedural and systemic grounds, they told the chair not to prepare an informal summary of the proceedings under her own responsibility.
The face-off with the chair reached boiling point when Uganda insisted that there should be no record of an informal meeting that was convened without any prior notice. But the chair chose to overrule Uganda’s objections and gave the floor to the proponents to make clarifications on their proposals raised during the last formal meeting on 14 March.
The proponents on transparency – Australia, Colombia, the EU, Japan, Korea, Mexico, New Zealand and Chinese Taipei, which were all participants in the failed TiSA negotiations – called for incorporating an article on “transparency” to cover elements of domestic regulation related to the transparency of measures within the scope of Article VI.4 of the WTO’s General Agreement on Trade in Services (GATS).
Much of the language in the proposal is drawn from the TiSA negotiating text, said a services negotiator from an African country.
The proposal on transparency has suggested elements of domestic regulation related to the development of licensing requirements and procedures, qualification requirements and procedures, and technical standards which would be addressed through separate proposals on development of measures and technical standards. It has also called for additional elements to be developed to address development, general provisions and institutional provisions.
The proposal says, “Where a Member requires authorization for supply of a service, further to GATS Article III, the Member shall provide the information necessary for service suppliers or persons seeking to supply a service to comply with the requirements and procedures for obtaining, maintaining, amending and renewing such authorization.”
The information shall include: (a) the requirements and procedures; (b) contact information of relevant competent authorities; (c) fees; (d) technical standards; (e) procedures for appeal or review of decisions concerning applications; (f) procedures for monitoring or enforcing compliance with the terms and conditions of licences; (g) opportunities for public involvement, such as through hearings or comments; and (h) indicative timeframes for processing of an application.
On “development of measures”, the proponents, which included Hong Kong (China), New Zealand and Switzerland, have suggested that “where a Member adopts or maintains measures relating to licensing requirements and procedures, qualification requirements and procedures and technical standards, the Member shall ensure” that:
(a) such measures are based on objective and transparent criteria;
(b) such measures are not more burdensome than necessary to ensure the quality of the service;
(c) licensing and qualification procedures are reasonable and do not in themselves unduly impair the fulfilment of requirements;
(d) the procedures are impartial, and that the procedures are adequate for applicants to demonstrate whether they meet the requirements, where such requirements exist; and
(e) the competent authority reaches and administers its decisions in an independent manner.
Further, the proponents argued that “in determining whether a Member is in conformity with the obligation under (a), (b) and (c) of this paragraph, account shall be taken of international standards of relevant international organizations applied by that Member.”
The African countries feel these measures impose huge obligations on them while eroding their policy space for regulatory measures.
Cameroon objected to the manner in which the chair hastily convened an informal meeting to discuss these proposals without giving time for the government to consider them.
The same concern was voiced by Rwanda on behalf of the African Group, Nigeria, Uganda, Kenya, South Africa, Bolivia and Cuba. They said that the informal meeting had been convened at a time when their governments had not even had the time to consider the proposals, two of which were circulated within the last few days.
Further, they maintained that informal meetings cannot be the venue for discussing formal proposals and that any substantive engagement should take place in formal sessions.
Uganda indicated that if members agree to implement these disciplines, there needs to be an account of the negotiating history with all clarifications offered by the proponents put on record.
Rwanda, Uganda, South Africa and Kenya were reluctant to agree to the preparation of an informal chair’s summary of the proceedings since they were not in a position to engage substantively until they had completed their own consultations, and said that a chair’s report would not reflect the realities of the capacity constraints facing smaller delegations.
Many African countries as well as Bolivia, Cuba and Venezuela expressed concern about the proposals undermining the sovereign right of their countries to regulate. They also voiced concern on systemic grounds since the proposals had been incorporated from the failed TiSA negotiations.
Brazil sought the chair to accelerate the discussions based on a detailed calendar of proceedings. The proponents clarified on several issues that were objected to by members.
The showdown between the African countries and the chair led to confusion even though the proponents proceeded to make their clarificatory remarks, said a negotiator from the African Group. Ultimately, it was not clear why the chair had pursued such an approach at an informal meeting.
The African Group was also sharply concerned over the refusal by the proponents to consider the draft texts issued in 2009 and 2011 by the then chairs of the WPDR negotiations. (SUNS8460)
Third World Economics, Issue No. 638, 1-15 April 2017, pp9-10