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TWN Info Service on WTO and Trade Issues (Mar16/10)
22 March 2016
Third World Network

 
US salvo to end S&D flexibilities for "emerging" DCs
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 the meeting.
 
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 service;
 
(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 from Pakistan.
 
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 WPDR.
 
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 Commitments;
 
(d) Procedures for filing the application and detailed documentation required;
 
(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 concerning applications;
 
(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 application;
 
(m) Any exceptions to these rules, whether applicable to all Members, or only to some pursuant to any bilateral or plurilateral arrangements; and
 
(n) Social security contributions, if any, as well as procedures for refund.
 
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 regulation.
 
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.
 
They include:
 
(i) Members need an assurance from emerging developing countries that they will not be negotiating on the basis of special and differential treatment;
 
(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. +

 


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