Service on WTO and Trade Issues (Mar16/10)
22 March 2016
Third World Network
US salvo to end S&D flexibilities for "emerging"
Published in SUNS #8205 dated 21 March 2016
Geneva, 18 Mar (D. Ravi Kanth) -- After dismantling the Doha Development
Agenda trade negotiations over three months ago, the United States
fired the first salvo on Thursday against the provision of special
and differential treatment for "emerging developing countries"
such as China, India, Brazil, Indonesia, and South Africa among others
in domestic regulation of trade in services, services negotiators
told the SUNS.
The US said that it wants an assurance from emerging developing countries
that they will not be negotiating for special and differential treatment
in developing the disciplines on domestic regulation (DR) covering
trade in services.
The US categorically demanded that members must commence work in DR
on a "clean slate" by discarding the previous 2009 and 2011
draft DR texts as Washington remained opposed to those two texts,
several participants familiar with the meeting said.
Effectively, the US suggested that any new disciplines in DR shall
not include special and differential treatment provisions for emerging
countries such as China, India, Brazil, Indonesia, South Africa, and
other developing countries, according to participants who were present
at the meeting.
This is the first categorical statement from the US after it dismantled
the DDA negotiations in Nairobi, a participant told the SUNS after
At a meeting of the Working Party on Domestic Regulation (WPDR), China
called for improvements in the DR based on convergence of views among
members. China emphasized the importance of S&DT provisions in
any new disciplines that would be negotiated under the Article VI:
4 mandate of the domestic regulation.
Under Article VI: 4 of domestic regulation in the General Agreement
on Trade in Services (GATS), WTO members are required to develop the
necessary disciplines so that measures relating to licensing requirements
and procedures, qualification requirements and procedures, and technical
standards did not constitute unnecessary barriers to trade in services.
The negotiated DR disciplines shall aim to ensure that such requirements
are, inter alia:
(a) based on objective and transparent criteria, such as the competence
and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the
(c) in the case of licensing procedures not in themselves a restriction
on the supply of the services.
Efforts at developing the appropriate disciplines and measures relating
to qualification requirements and procedures, technical standards
and licensing requirements are scuttled since 2009 when the chair
for the WPDR (Working Party on Domestic Regulation), Peter Govindsamy
of Singapore, issued a middle ground draft text on DR. Subsequently,
the draft text was further amended in 2011 by then chair of the WPDR
The US remained opposed to any strong DR disciplines since the Uruguay
Round of negotiations.
In the run-up to the WTO's tenth ministerial conference in Nairobi
last December, Australia and Canada circulated a proposal seeking
only transparency improvements in the DR but not the comprehensive
changes in measures relating to qualification requirements and procedures,
technical standards and licensing requirements that have increasingly
become barriers in many industrialized countries.
The joint proposal by Australia and Canada, which was circulated on
27 November 2015, merely focused on the transparency-related disciplines
"relating to licensing requirements and procedures, qualification
requirements and procedures, and technical standards affecting trade
in services where specific commitments are undertaken."
These measures, however, "do not apply to measures to the extent
that they constitute limitations subject to scheduling under XVI or
XVII [articles of the General Agreement on Trade in Services],"
Australia and Canada maintained.
The US had strongly supported the joint proposal by Australia and
Canada for transparency-improvements in DR. The US maintained that
the Australia-Canada joint proposal is based on the past work of the
Several industrialized countries and even a few developing countries
joined the US in emphasizing the importance of transparency improvements
in the DR.
As a counter to the limited transparency proposal in DR by Australia
and Canada, India circulated a comprehensive proposal demanding "disciplines
on Transparency in Measures relating to Temporary Entry (i. e., laws,
regulations and administrative guidelines and procedures governing
temporary entry of natural persons)" relating to the delivery
of services through movement of natural persons under Mode 4.
India's proposal, which was circulated on 3 December 2015, called
on members, particularly the developed countries, to adopt and implement
the following disciplines in DR:
(a) Each Member shall publish promptly, through printed or electronic
means, measures of general application relating to all relevant visa
categories and other immigration formalities which pertain to or affect
the operation of their Mode 4 commitments. The information provided
shall be regularly updated and shall include, inter alia:
(b) Categories of work related visas and other entry requirements;
(c) Specific work related visa and other entry requirements for each
category of Mode 4 specified in the Member's Schedule of Specific
(d) Procedures for filing the application and detailed documentation
(e) Normal timeframe for processing the application;
(f) Application fees;
(g) Length and validity of stay;
(h) Possibility and conditions for extensions/renewal (including availability
of multiple entry visas/permits);
(i) Applicable procedures relating to reviews and/or appeals of decisions
(j) Rules regarding accompanying dependents;
(k) Details of relevant contact points for further information (e.
g. links to relevant government web-sites which provide more detailed
information on Embassies, Consulates and other issuing bodies);
(l) Any other relevant immigration laws or other formalities of general
(m) Any exceptions to these rules, whether applicable to all Members,
or only to some pursuant to any bilateral or plurilateral arrangements;
(n) Social security contributions, if any, as well as procedures for
India said "members shall also provide a full description of
the manner in which the scheduled limitations to market access and
national treatment and any other non-scheduled conditions for the
temporary entry of natural persons in such categories are administered
by their authorities, including complete description of the manner
in which scheduled Mode 4 categories are granted entry including,
for instance, application of salary thresholds, economic needs tests/labour
market tests, requirements of prior employment, qualification requirements
and criteria for determination of each category of natural persons
specified under their commitments."
Against this backdrop, the WPDR meeting on Thursday is the first attempt
after the WTO's tenth ministerial meeting in Nairobi to test the waters.
Australia and Canada said respectively that they are withdrawing their
proposal on the transparency provisions concerning the DR, according
to the negotiators present at the meeting.
India, however, maintained that its proposal on "services transparency
in measures relating to temporary entry of natural persons [Mode 4]"
will remain on the table.
India, the ACP (Africa, Caribbean, and Pacific) countries, and South
Africa supported China's call for a developmental outcome in the domestic
In response to an overwhelming demand for negotiating developmental
disciplines in DR based on S&DT flexibilities, the US categorically
set three conditions, according to a developing country negotiator
present at the meeting.
(i) Members need an assurance from emerging developing countries that
they will not be negotiating on the basis of special and differential
(ii) DR is part of a larger puzzle of future negotiations implying
that DR cannot be the immediate priority;
(iii) Members must start work on a "clean slate" by ignoring
the 2009 and the 2011 draft DR texts.
Buoyed by their success at the WTO's tenth ministerial conference
in Nairobi, the US and other industrialized countries are now creating
a new playing field in which major developing countries - China, India,
Brazil, Indonesia, and South Africa among others - will be treated
on par with the industrialized countries, regardless of the historical
and existing disparities in trade and development. +