Transcription

1

2

3 ...I... IV... VI... 1 GATS... 7 GATS GATS GATS GATS I

4 GATS GATS II

5 Job (06)/ Job (Room Document 2639) III

6 1-1 GATS GATS GATS GATS GATS WTO GATS IV

7 * * * * * GATS V

8 2-1 GATS WPDR WTO GATS VI

9 WTO (General Agreement on Trade in Services GATS) GATS 6.4 GATS 6.4 (a) (b) (c) GATS (quantity) WTO (regulatory measures) GATS 1 GATS GATS 6.4 domestic regulation WTO regulation (measures) GATS 28 (a) 1

10 (non-discriminatory liberalization) (de-regulation) 2 GATS WTO (re-regulation) 3 GATS GATS GATS GATS (regulatory reform) (predictability) 5 2 WTO Secretariat, Article VI:4 of the GATS: Disciplines on Domestic Regulation Applicable to all Services, Doc. S/C/W/96, 1 March GATS 5 Mattoo, Aaditya and Pierre Sauve (eds), Domestic Regulation and Services Trade Liberalization, The World Bank and Oxford University Press, Washington DC. 2

11 GATS 6.4 (domestic regulation) (Disciplines on Domestic Regulation) GATS GATS 6 GATS 6.4 GATS 7 WTO 1999 (Working Party on Domestic Regulations, WPDR) GATS MTN.GNS/35 of 23 July Parties may require that services or providers of services of other parties meet certain regulations, standards or qualifications. Such requirements shall be based upon objective criteria, such as competence and the ability to provide such services, and not be more burdensome than necessary to achieve the national policy objectives. 7 WTO Secretariat, Article VI:4 of the GATS: Disciplines on Domestic Regulation Applicable to all Services, Doc. S/C/W/96, 1 March WTO Council for Trade in Services, Decision on Domestic Regulation, WTO Doc. S/L/ WTO 3

12 2005 C JOB(06)/193 ) WPDR WPDR (consolidated working paper, JOB(06)/ ? (soft resumption) WPDR 4 18 GATS 6.4 (Room Document ) GATS 10 C 5 "Members shall develop disciplines on domestic regulation pursuant to the mandate under Article VI:4 of the GATS before the end of the current round of negotiations. 11 WPDR ACP GATS 6.4 WTO Doc. JOB(06)/66/Rev.2, 10 July 2006; JOB(06)/136/Rev.1, 19 June 2006; JOB(06)/158, JOB(06)/ (JOB(06)/225), Consolidated Working Paper, Disciplines on Domestic Regulation Pursuant to GATS Article VI:4 13 WTO WPDR

13 GATS GATS WTO 1. GATS GATS 2. GATS 3. GATS 4. GATS 5. 5

14

15 GATS GATS GATS measure (behind the border) GATS (measure) GATS 28 a) (regulation) EC - Bananas III GATS excluded a priori regulates other 14 GATS 1.2 (a) (b) (c) (d)

16 matters but nevertheless affects trade in services 16 GATS GATS 2-1 GATS GATS (regulation) * * Panel Report, European Communities-Regime for the Importation, Sale and Distribution of Bananas (EC Bananas III ), WT/DS27/R/ECU WT/DS27/R/GTM WT/DS27/R/HND WT/DS27/R/MEX, para

17 GATS GATS 2 17 GATS GATS (post-establishment ) GATS 4 GATS GATS OECD, Working Party of the Trade Committee, Assessing Barriers to Trade in Services: Revised Consolidated List of Cross-Sectoral Barriers, TD/TC/WP(99)58/FINAL, 28 February

18 17 Hoekman & Messerlin GATS 18 GATS (pro-competition regulation ) GATS (regulatory reform) ( ) GATS 6 (due process) US Gambling GATS 6 GATS Bernard Hoekman & Patrick A. Messerlin, Liberalizing Trade in Services: Reciprocal Negotiations and Regulatory Reform, in Pierre Sauvé & Robert M. Stern (eds), GATS 2000: New Directions in Services Trade Liberalization, Brookings Institution/Harvard University, Washington,DC, p Panel Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US Gambling), WT/DS285/R, 10 November 2004, adopted 20 April para Panagiotis Delimatsis, Due Process and Good Regulation Embedded in the FATS Disciplining Regulatory Behavior in Services Through Article VI of the GATS, Journal of International Economic Law 10(1): 13 50, at Members maintain the sovereign right to regulate within the parameters of Article VI of the GATS. Members regulatory sovereignty is an essential pillar of the progressive liberalization of trade in services, but this sovereignty ends whenever rights of other Members under the GATS are impaired. See Panel Report, US Gambling, para

19 GATS GATS GATS 3 6 GATS 2-1 GATS GATS 6 GATS 6 6 (procedural) (substantive) (administration) 22 US underwear GATS Panel Report, United States Restrictions on Imports of Cotton and Man-made Fibre Underwear (US 11

20 (affect an unidentified number of economic operators) EC- Selected Customs Matters (a range of situations or cases, rather than being limited in their scope of application) 24 Japan Film 25 US Gambling 6.1 (substantive content) 26 Argentina Hides and Leathers administrative in nature 27 (administration) GATS GATS GATS 6.2(a) Underwear), WT/DS24/R, para Panel Report, European Communities Selected Customs Matters (EC Selected Customs Matters), WT/DS315/R, circulated 16, June 2006, para Panel Report, Japan Measures Affecting Consumer Photographic Film and Paper (Japan Film), WT/DS44/R, adopted 22 April 1998, para US Gambling Panel report, at para Panel Report, Argentina Measures Affecting the Export of Bovine Hides and Import of Finished Leather (Argentina Hides and Leather), WT/DS155/R and Corr.1, adopted 16 February 2001, paras

21 6 GATS GATS GATS 6.5 (a) 6.4 (nullify) (impair) (i) 6.4 (a) (b) (c) (ii) (b) 5 (a) 28 Panel report, US Gambling, at para

22 (a)(i) 6.4 (a) (b) (c) (applying) GATS 23.3 DSU 26.1 non-violation complaints GATS 6.5 (a)(i) 6.4 (a) (c) 6.5(a)(i) (violation complaints) 29 WTO Delimatsis, 前揭註, 第 44 頁 14

23 6.5 (b) TBT 2.4 SPS 3.2 TBT 2.5 (deemed necessary) 6.6 GATS 6.6 GATS 7 (recognition) 6.4 GATS GATS GATS 2-2 GATS GATS 20 15

24 WTO GATS (regulatory autonomy) GATS GATS GATS 16.2 GATS 6 GATS GATS Panel report, US Gambling, at para

25 GATS (exhaustive list) GATS * X% X Y X * Council for Trade in Services, Guidelines for the Scheduling of Specific Commitments Under the GATS (Scheduling Guidelines), S/L/92, adopted by the Council for Trade in Services, 28 March Id, at para

26 GATS 6 GATS GATS GATS (mutually exclusive) 33 GATS WTO GATS GATS GATS (maximum limitation) Working Party on Professional Services, Discussion of Matters Relating to Articles XVI and XVII of The GATS in Connection With the Disciplines on Domestic Regulation in the Accountancy Sector, Attachment 4 (Job No. 6496), Scheduling Guidelines (S/L/92). 33 US Gambling Panel report, at para Pauwelyn, Joost, Rien ne Va Plus? Distinguishing domestic regulation from market access in GATT and GATS, World Trade Review 4: 2, , at p

27 (minimum requirement) 35 GATS Scheduling Guidelines GATS 6.5 GATS Scheduling Guidelines, S/L/92, at para at para

28 GATS GATS GATS GATS

29 GATS GATS GATS GATS GATS GATS 6.2 GATS 6.4 GATS GATS GATS GATS 6.2 GATS 6.4 GATS 6.4 GATS GATS

30 2007 GATS (JOB 193) 5 GATS GATS 6.4 X% Y X Y GATS GATS 6.1 GATS (self-contained) GATS GATS

31 GATS 6 GATS 6.4 GATS The Council for Trade in Services, CTS Working Party on Professional Services, WPPS GATS 6.4 WPPS b Article 7 of the GATS (draft), MTN.GNS/35, 23 July Decision on Professional Services, adopted on 1 March 1995, WTO Doc. S/L/3, 4 April Disciplines on Domestic Regulation in the Accountancy Sector - Draft, WTO Doc. S/WPPS/W/21, 30 November Disciplines on Domestic Regulation in the Accountancy Sector, adopted on 14 December 1998, WTO Doc. S/L/64, 17 December

32 41 CTS Working Party on Domestic Regulation, WPDR WPPS GATS 6.4 WPDR WPDR CTS Doha 2005 C 5 Paragraph 5 of Annex C of the Hong Kong Ministerial Declaration GATS Decision on Disciplines relating to the Accountancy Sector, adopted on 14 December 1998, WTO Doc. S/L/63, 15 December Report of the Meeting held on 26 April 1999, WTO Doc. S/C/M/35, 17 May Decision on Domestic Regulation, adopted on 26 April 1999, WTO Doc. S/L/70, 28 April Report of the Chairman of the WPDR to the Special Session of the CTS, WTO Doc. JOB(05)/280, 15 November

33 GATS WPDR WPDR GATS (soft resumption) WPDR 4 18 GATS 6.4 (Room Document ) WPDR WPDR ACP GATS 6.4 WTO Doc. JOB(06)/66/Rev.2, 10 July 2006; JOB(06)/136/Rev.1, 19 June 2006; JOB(06)/158, JOB(06)/ Communication from Australia; Chile; Colombia; Hong Kong, China; Korea; New Zealand and The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Article :4 Disciplines Proposal for Draft Text, WTO Doc. JOB(06)/193, 19 June Disciplines on Domestic Regulation Pursuant to GATS Article :4 Consolidated Working Paper, WTO Doc. JOB (06)/225, 12 July

34 12? WTO WPDR TBT LDC (S&D) non-operative format 48 Summary of the Informal Meeting Held on 19 and 20 June 2006, Note by the Chairman, WTO Doc. JOB(06)/235, 14 August

35 ACP (soft resumption) WPDR 4 18 GATS 6.4 (Room Document ) do not constitute disguised restrictions on trade in services (2007) 5 27

36 28

37 WPDR / /04 29

38 6.4 (b) WTO non-exhaustive GATS 14 GATS 6.4 mandate

39 WTO 6.4 (a) ( ) WTO WTO WTO WTO GATS 3 31

40 ( ) GATS 7 WTO ( WTO ) WTO WTO 32

41 S&D (a) (b) WTO ( GATS 25 ) 33

42

43 GATS 6.4 ( ) S/C/W/96 GATS (Room Document 2639) 2006 Job 225 (Licensing requirements) 2007 (Room Document 2639) 5 (obtain, amend or renew) (obtain, amend or renew) 16.2 (substantive requirements) 35

44 (administrative or procedural rules) 16.2 (e) ( authorization ) GATS GATS WTO GATS GATS 36

45 37 39 GATS GATS GATS GATS 6.4 GATS (service supplier)

46 (qualification) GATS 28 (g) (j) GATS GATS 38

47 3-1 39

48 (licensing procedures) 2007 (Room Document 2639) 6 ( ) ( ) GATS GATS GATS

49 2006 (Qualification requirements) 2007 (Room Document 2639) 7 (competence) (ex ante) WTO education examination experience 53 WTO The Relevance of the Disciplines of the Agreements on Technical Barriers to Trade (TBT) and on Import Licensing Procedures to Article VI.4 of the General Agreement on Trade in Services, Note by the Secretariat, S/WPPS/W/9, pp. 5, 6. 41

50 6 1) 2) 3) GATS 6.4 WTO (professional) 2006 JOB(06)/ WTO Secretariat, Article :4 of the GATS: Disciplines on Domestic Regulation Applicable to all services, WTO Doc. S/C/W/96, 1 March 1999, para WTO Working Party on Domestic Regulation, Communication from Australia; Chili, Colombia; Hong Kong, China; Korea; New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu: Article :4 Disciplines- Proposal for Draft Text, WTO Doc. JOB(06)/193, 19 June Id, para. 8(a). 42

51 45 (auhtorizaiton) 2006 GATS 57 Id, para. 8(b). 43

52 WPDR S/WPDR/W/37 58 (Qualification procedures) 2007 (Room Document 2639) 8 WTO 2007 GATS 5 58 Communication From the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Definitions of Qualification Requirements, Qualification Procedures, Licensing Requirements, Licensing Procedures and Technical Standards, S/WPDR/W/37, 6 October 2005, 9(i) 59 S/WPPS/W/9 44

53 (Technical standards) 2007 (Room Document 2639) 9 characteristics the manner in which it is supplied 1. IMT dBm (MPE) 0.4 mw/cm2 1.0 mw/cm2 ±1PPM 3. 1 ITU IMT

54 WTO WTO GATS GATS WTO WTO WTO WTO 61 WTO 3-2 WTO /05/2007 Preamble, Agreement Establishing the World Trade Organization, The Legal Text, Cambridge University Press

55 3-2 WTO WTO GATT essential to (Art.XI:2:a) (GATT Article XI, XX) 2. necessary to (Art.XI:2:b,c) GATS (GATS Article XIV and VI:4) ( c) (d) (Paragraph 2(d) of Article XII, GATS) 3. (e) (Paragraph 5(e) of the Annex on Telecommunications) TBT 1. necessary to (Art.XIV:a,b,c) 2. do not constitute unnecessary barrier to trade in service (Art.VI:4) 3. not more burdensome than necessary (Art.VI:4:b) 1. shall not exceed those necessary (Art. XII 2(d)) 2. shall avoid unnecessary damage (Art. XII 2(c)) 1. other than as necessary (GATS Annex on Telecommunications Paragraph 5(e)) (Article 2.2 and 2.5 of TBT Agreement) 1.unnecessary obstacles to international trade (Art.2.2) 2.an unnecessary obstacle to international trade (Art.2.5) SPS (Article 2.2 and 5.6 of SPS Agreement) TRIPS 1.to the extent necessary (Art.2.2) 2.not more trade restrictive than required (Art.5.6) (Article 3.2, 8.1 and 27.2 of the TRIPS Agreement) GPA (Article 23.2 of the Agreement on Government Procurement) 1. necessary to...(art.3.2) 2.necessary to (Art.8.1) 3.necessary to (Art.27.2) 1. necessary to (Art.27.2) WTO 47

56 WTO (1). (2). (3). ( ) WTO GATT 20 GATS 14 GATT GATS GATT 11 GATS 6.4 (a closed list) GATT 20 GATS 14 (an open illustrative list) TBT GATS ( Disciplines on Domestic Regulation in the Accountancy Sector) GATS 12.2 (d) GATT 20 (a) (b) SPS (an obligation to fulfill the requirement designed in necessity test principle) TBT 2.2 SPS 2.2 GATS ( Disciplines on Domestic Regulation in the Accountancy 62 GATS

57 Sector) (an exception framed to other WTO designated obligations) GATT 20 GATS 14 WTO WTO GATS WTO GATT WTO GATT/WTO US - Gasoline 63 WTO EC - Sardines 64 TBT WTO 63 United States Standards for Reformulated and Conventional Gasoline (hereinafter US Gasoline), WT/DS/2/R, Jan. 29 th.; WT/DS/2/AB/R, May 20 th European Communities - Trade Description of Sardines (hereinafter EC-Sardines), WT/DS/231/R, May 29 th. 2002; WT/DS/231/AB/R, Sept. 26 th

58 TBT TBT WTO Korea - Beef 65 WTO EC-Asbestos 66 Australia - Salmon 67 WTO EC-Hormones SPS 5 5 SPS (an implicit obligation) SPS B Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Panel, WT/DS/161/R, WT/DS/269/R, WT/DS/161/AB/R, WT/DS/169/AB/R, July 31 st (Panel report), Dec. 11 th (Appellate Body Report). 66 European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS/135/R, Sept. 18 th. 2000; WT/DS/AB/R, Mar Australia - Measures Affecting Importation of Salmon, Report of the Panel, WT/DS/18/R, July 13 th. 1998; WT/DS/18/AB/R, Oct. 20 th EC Measures Concerning Meat and Meat Products (Hormones), WT/DS/48/R/CAN, Aug. 18 th. 1997; WT/DS/26/AB/R, WT/DS/48/AB/R, Jan. 18 th

59 United States Section (GATT Panel) Thailand Cigarettes 70 Korea Beef 71 GATT (necessity) (absolute physical necessity) (inevitability) (convenient) (appropriate) (proper) (conducive to end sought) ( ( ) GATT 20 (d) (vital common interests) 20 (g) 69 United States - Section 337 Of The Tariff Act Of 1930, Report of the Panel, Nov. 7 th.1989, BISD 36S/ Thailand Restrictions On Importation Of And Internal Taxes On Cigarettes, Report of the Panel, Nov. 7 th. 1990, BISD 37S/ See note

60 EC Asbestos 72 Korea Beef SPS Australia Salmon 74 SPS GATS GATT SPS TBT GATS GATS (e) 14 GATT GATT 20 GATS See note WTO, Necessity Test in the WTO, S/WPDR/W/27, para. 37, Dec. 2nd See note

61 GATT 20 (b) (a)(c) GATT 20 (a)(b)(d) GATS 14 (a)(b)(c) GATS 6.4 GATS 14 GATT 20 GATS GATS 6.4 (b) GATT 20 (a)(b)(d) GATS 14 (a)(b)(c) (b) GATS 6.4 (b) 53

62 GATS 6.4 GATS 6.4 GATS GATS 6.4 GATS 1982 WTO 54

63 disguise WTO (WTO WTO Doc. WT/CTE/W/203) publicity test the protective application of a measure can most often be discerned from its design, architecture and revealing structure / 609 TEDs TEDs (a restriction that had not been taken in the form of a trade 75 Conciliation, United States - Prohibition Of Imports Of Tuna and Tuna Products From Canada, BISD 29S/91, Dec. 22,

64 measure) GATS (Job 193) non-operative format

65 3-1 WTO 1. 57

66 2. 7 WTO

67 WTO GATS WTO WTO 59

68 WTO GATS 2007 GATS WTO 7 GATS 2007 GATS GATS GATS

69 GATS WTO 7 GATS 61

70

71 JOB(06) The objective of these disciplines is to ensure that measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards do not constitute unnecessary barriers to trade in services and that they are inter alia: (a)based on objective and transparent criteria, such as competence and the ability to supply the service; (b)not more burdensome than necessary to meet specific national policy objectives including to ensure the quality of the service; and (c)in the case of licensing and qualification procedures, not in themselves a restriction on the supply of the service Each Member shall ensure that licensing requirements do not act as barriers to trade in services and are not more trade restrictive than required to fulfil national policy objectives. option 1 para.2 Desiring to ensure that measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are based on objective and transparent criteria, such as competence and the ability to supply the service, and are no more burdensome than necessary to meet specific national policy objectives, including to ensure the quality of the service. option 2 para.1 no more burdensome than necessary option 2 para.1 The objective of these disciplines is to ensure that measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are based on objective and transparent criteria, such as competence and the ability to supply the service, and are not more burdensome than necessary to meet specific national policy objectives, including to ensure the quality of the service. 2. In pursuing the fulfillment of domestic policy objectives, each Member shall ensure that licensing requirements do not The purpose of these disciplines is to facilitate trade in services by ensuring that measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are based on objective and transparent criteria, such as competence and the ability to supply the service, and do not constitute disguised restrictions on trade in services. 63

72 JOB(06) Where residency requirements not subject to scheduling under Article XVII of the GATS apply in licensing requirements, each Member shall consider whether less trade restrictive means could be employed to achieve the purposes for which these requirements were established taking into account costs and local conditions. [Proposal iii] Each Member shall ensure that G-3 licensing procedures and related proposal documentation requirements, iii including those for renewal where applicable, are not more burdensome than necessary to ensure that applicants fulfil or comply with the licensing requirements and are not in themselves a restriction on the supply of service. 2. Each Member shall ensure that licensing procedures, including application procedures and, where applicable, renewal procedures, do not in themselves constitute a restriction on the supply of services. Licensing procedures shall be as simple as possible. Applicants shall be allowed a reasonable period for the submission of license applications. Applicants shall, in principle, have to approach only one competent authority in connection with an application for a license. constitute disguised restrictions on trade in services. 3. Where residency requirements, not subject to scheduling under Article of the GATS, apply in licensing requirements, each Member shall consider whether less trade restrictive means could be employed to achieve the purposes for which these requirements were established taking into account costs and local conditions. None 64

73 JOB(06) [Proposal ii] I-2 Each Member shall ensure that proposal qualification procedures and iii related documentation requirements are not more I-4 burdensome than necessary to ensure that applicants meet the qualification requirements and are not in themselves a restriction on the supply of service. 2. Each Member shall ensure that qualification procedures are not in themselves a restriction on the supply of services. Qualification procedures should be as simple as possible, and applicants should in principle be required to approach only one competent authority for qualification procedures. Each Member shall ensure that examinations are administered on subjects relevant to the activity subject to the applicable qualification requirements. Residency requirements not subject to scheduling under Article XVII of the GATS shall not be a pre-requisite for taking part in competency assessment including examinations. Work experience in the host country shall also not be considered a pre-requisite unless necessary for meeting national policy objectives. 65

74 JOB(06) Members shall ensure that technical standards are not J-4 prepared, adopted or applied with a view to creating unnecessary obstacles to trade and shall not be maintained if the circumstances of objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade restrictive manner. Requirements should be based on objective and transparent criteria. 1.Technical standards shall only be prepared, adopted or applied to fulfill domestic policy objectives. They shall not be maintained if the circumstances giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade restrictive manner. 4. In pursuing the fulfillment of domestic policy objectives, each Member shall ensure that technical standards do not constitute disguised restrictions on trade in services. 5. Where technical standards are required and relevant international standards exist or their completion is imminent, Members should take them or the relevant parts of them into account in formulating their technical standards, except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfillment of the domestic policy objective pursued. Nothing shall prevent a Members from going beyond the requirements of international standards if this is deemed necessary to fulfill a legitimate domestic policy objective. 66

75 GATS 2007 (Room Document 2639) 11 (pre-established) (pre-established) (universally applied) (tailored )

76 9 GATS 18 GATS GATS 6.4 a

77 (Room Document 2639) 12 Nothing in these disciplines prevents GATS (universal service)

78 (Universal Service Obligation, USO) (affordability) GATS GATS GATS 77 70

79 GATS GATS 4 GATS ( ) GATS GATS 14 GATS 14 GATS 3 GATS 8.2 WTO GATS GATS (Telecom Reference Paper) GATS GATS 78 Any Member has the right to define the kind of universal service obligation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Member. 71

80 competitively neutral Nothing in these disciplines prevents Members from exercising the right to introduce or maintain regulations in order to ensure provision of universal service, in a manner consistent with their obligations and commitments under the GATS and are competitively neutral. (public utility)

81 73 participatory rulemaking 4-1

82 74

83 WTO GATS Geza Fedeteduty, Regulatory reform and trade liberalization in services, in Pierre Sauve Robert M. Stern ed., GATS2000 New directions in services trade liberalization, at Id. 75

84 WTO publicity test TBT 2.5 GATS WPPS WTO GATS TBT GATS (Annex on Telecommunications Services) Reference Paper GATS 6.4 GATS Committee on Trade and Environment, GATT/WTO Dispute Settlement Practice Relating to Article XX Paragraphs (b), (d) and (g), WT/CTE/W/203, 2002/3/8. 82 Article :4 of the GATS: Disciplines on domestic regulation applicable to all services, WTO Doc. S/C/W/96, 1 March 1999, para. 29, Disciplines on Domestic Regulation in the Accountancy Sector, adopted on 14 December 1998, WTO Doc. S/L/64, 17 December Supra note 5, para

85 GATS (Room Document 2639) 13 interested persons GATS (contact point) 16 (shall endeavour) (address collectively) promptly

86 GATS GATS

87 (1) (2) (3) 86 79

88 (4) (5) 8 (1) (2) (3) (4) (5)

89 88 GATS GATS

90 2 GATS GATS GATS 82

91 3 GATS

92 A A GATS (applicants, affected suppliers and stakeholders) interested persons 46 GATS GATS GATS

93 a. b. c. d. e. f. g. h. i. j. (public involvement) k. (derogation) GATS WTO

94 (shall endeavour) (address collectively) GATS

95 GATS (open government) GATS (published in advance)

96 GATS GATS (shall endeavour to) GATS 95 (shall endeavour to) (to the extent practicable) (practicable) 2007 GATS GATS WPDR

97 2. GATS GATS GATS 3. GATS GATS 9 2 GATS 2 17 A WTO 9 2 GATS (applicants, affected suppliers and stockholders) interested persons 46 GATS 89

98 4. GATS (shall endeavour to) GATS (shall endeavour to) (to the extent practicable) (practicable) 90

99 GATS (asymmetric of information) (transaction cost) Stephen Breyer, Regulation and its reform, 1982, at

100 97 competence GATS GATS WTO GATS 2007 GATS 7 97 Id, at

101 GATS GATS

102 (licensing) 5-1 GATS GATS WPDR equivalency language 94

103 requirements residency requirements GATS 7.1 GATS WTO Secretaries, Disciplines on Domestic Regulation in the Accountancy Sector, 14 December 1998, WTO Doc. S/L/64, 17 December 1998, para Id, para

104 GATS WPDR 2007 WTO 20 Job 193 genuine needs 2006 specific needs JOB(06)/225 H-3 96

105 2007 GATS 17 GATS WPDR WTO 28 GATS 17 97

106

107 GATS GATS 99

108 CPC 963 CPC

109 APEC

110 2. ( )

111 (recognition) APEC 2005 APEC 103

112 GATS GATS 2 (equivalency) 5

113 4 1 GATS 7.1 WTO GATS GATS

114 GATS GATS Scheduling Guidelines Council for Trade in Services, Guidelines for the Scheduling of Specific Commitments Under the GATS (Scheduling Guidelines), S/L/92, para

115 Scheduling Guidelines GATS

116

117 5-4 GATS 109

118

119 2. WTO GATS 5-4 * 111

120 * * GATS 112

121 (qualification procedures) GATS

122

123 MOU 115

124 116

125

126

127 ( )

128

129

130

131

132

133

134

135

136

137

138

139

140 4 132

141

142

143

144 GATS

145 WTO WTO GATS 3.3 GATS GATS Scheduling Guidelines GATS WTO GATS WTO GATS 137

146

147 GATS WTO GATS 16 GATS 2007 GATS 139

148 ( ) GATS 6.4 GATS

149 2007 GATS ( residency requirement ) GATS GATS 17 S/L92) 13 de facto 137 S/L92) 14 GATS 137 S/L92) 13 (b) 141

150 GATS 3 142

151 (operator of last resort)

152 4 144

153 ( authenticated copies) 145

154

155 * concessions ( )

156 % 60% 20% 148

157 149

158

159 NCC 19 NCC 19 NCC NCC 23 NCC

160 3 15 NCC 8 NCC NCC 17-1I NCC I 17I 17II 17-1 II NCC 24I 18I NCC

161 ~ ~ ~ ~

162 NCC 42 NCC 47

163

164

165

166

167

168

169 * concessions

170 162

171

172

173

174

175

176

177 6-5 * ( ) ( ) ( ) ( ) (1) (2) (3) (4) (5) (6) (7) (8) 169

178 * 八

179 6-7 * ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( )

180 6-8 * ( ) ( 包括 )

181

182

183

184 * concessions 176

185

186

187

188 * ( )

189 2007 GATS (Annex on Financial Services) 2 (a) WTO (prudential carve-out) 181

190 ( ) ( ) 182

191 ( ) ( ) 183

192 ( ) ( ) * concessions 184

193

194 ( ) 186

195

196

197

198

199

200 7. 8. * concessions 192

201

202 194

203

204

205

206 2. 198

207

208 ( )

209 ( ) ( ) ( )

210 ( ) ( ) ( ) 202

211 * concessions

212 ( ) 15 ( ) 195

213

214

215 1. 207

216 2. 208

217 209

218

219

220

221 5. 213

222

223 202 NCC

224 216

225 217

226

227 WTO (General Agreement on Trade in Services GATS) 6.4 GATS GATS GATS GATS GATS GATS 219

228 GATS GATS 6.4 (domestic regulation) GATS 6.4 (Disciplines on Domestic Regulation) GATS GATS GATS 7-1 GATS GATS (regulation)

229 GATS GATS GATS WTO 1999 (Working Party on Domestic Regulations, WPDR) Job 06/ (soft resumption) WPDR 4 18 GATS 6.4 (Room Document ) / / WPDR 221

230 GATS 1. (Job 193) 2006 non-operative format GATS

231 9 18 GATS 3. GATS GATS GATS 4. GATS GATS 9 2 GATS 2 223

232 17 A WTO GATS (shall endeavour to) GATS Scheduling Guidelines GATS WTO GATS 224

233 6. 225

234 GATS 2007 GATS GATS WTO 7 GATS

235 WTO 2007 WTO GATS (shall endeavour to) (to the extent practicable) (practicable) 3. WTO GATS (to the extent practicable)

236

237 Aaditya Mattoo and Pierre Sauve (eds), Domestic Regulation and Service Trade Liberalization, World Bank, Washington DC. Armstrong, M., Cowan, M. and Vickers, S. J., Regulatory reform: economic analysis and British experience, MIT Press, Cambridge, MA. Baumol, W. J., Panzar J. C. and Willig R. D., Contestable Markets and the Theory of Industry Structure, Harcourt Brace Jovanovich, San Diego, U.S.A. Breyer, S. G., Regulation and its Reform, Harvard University Press, Cambridge, Mass. Gabrielle Marceau and Joel Trachtman, TBT, SPS, and GATT: A Map of the WTO Law of Domestic Regulation, 36 Journal of World Trade (2001), 811 Joost Pauwelyn, Rien ne Va Plus? Distinguishing domestic regulation from market access in GATT and GATS, World Trade Review 4(2): OECD (Organisation for Economic Co-operation and Development) Trade in Services : Transparency in Domestid Regulation : Prior Consultation. TD/TC/WP(2003)31/FINAL. Paris The Scheduling of Economic Needs Tests in the GATS: Follow up Work, TD/TC/WP(2001)5/FINAL. Paris. Pierre Sauve and Robert Stern (eds), GATS 2000: New Directions in Services Trade Liberalization, Brookings Institute, Washington DC. 229

238 Trachtman, Joel P Regulatory Competition and Regulatory Jurisdiction. Journal of International Economic Law 3: WTO WTO 2004 WTO 2005 WTO WTO WTO Scheduling of Initial Commitments in Trade in Services: Explanatory Note, MTN.GNS/W/164, 3 September Informal note by the secretariat on Negotiating History of the Coverage of the Agreement on Technical Barriers to Trade with Regard to Labeling Requirements, Voluntary Standards, and Processes and Production Methods Unrelated to Product Characteristics. WT/CTE/W/10; G/TBT/W/11, Working Party on Domestic Regulation, August Discussion of Matters Relating to Articles XVI and XVII of the GATS in Connection with the Disciplines on Domestic Regulation in the Accountancy Sector., Informal Note by the Chairman, Working Party on Professional Services Job 6496, November

239 WTO Disciplines on Domestic Regulation in the Accountancy Sector. S/L/64, December Application of the Necessity Test: Issues for Consideration. Informal Note by the Secretariat. Job 5929, October Communication from the European Communities and Their Member States : Domestic Regulation : ecessity and Transparency. S/WPDR/W/14, May Examples of Measures to Be Addressed by Disciplines under GATS Article VI.4. Informal Note by the Secretariat, Job(01)/62, May 10. Guidelines for the Scheduling of Specific Commitments under the GATS, adopted by the Council for Trade in Services on 23 March 2001, S/L/92. Communication from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Definitions of Qualification Requirements, Qualification Procedures, Licensing Requirements, Licensing Procedures and Technical Standards, S/WPDR/W/37, 6 October 2005; Communication from Switzerland and Mexico, Proposal for Disciplines on Technical Standards in Services, S/WPDR/W/32/Rev.1, 27 October 2005; Communication from the African Group on Domestic Regulation, Room Document, 2 May 2006; Communication from China and Pakistan, Proposed Disciplines on Domestic Regulation under Article VI:4 of the GATS, JOB(06)/158, 29 May 2006; Communication from Chile, India, Mexico, Pakistan, Peru and Thailand, Proposed Disciplines on Qualification Requirements and Procedures, JOB(06)/160, 30 May 2006; Communication from Brazil, Colombia, Dominican Republic, Indonesia, Peru and the Philippines, Elements for Draft Disciplines on Domestic Regulation, JOB(06)/34, 24 February 2006 and JOB(06)/34/Add.1, 15 June 2006; 231

240 Communication from Brazil, Indonesia and the Philippines, JOB(06)/133, 2 May 2006 and JOB(06)/133/Add.1, 15 June 2006; Communication from the ACP Group, Pro Development Principles for GATS Article VI:4 Negotiations, JOB(06)/136/Rev.1, 19 June 2006; Communication from Australia, Chile, Colombia, Hong Kong, China, Korea, New Zealand and The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Article VI:4 Disciplines Proposal for Draft Test, JOB(06)/193,19 June 2006; Communication from Antigua and Barbuda, Barbados, Cuba, Dominican Republic, El Salvador, Fiji, Grenada, Guatemala, Honduras, Jamaica, Mauritius, Mongolia, Nicaragua, Paraguay, St. Kitts and Nevis, St. Vincent and the Grenadines and Trinidad and Tobago, Trade-Related Concerns of Small Vulnerable Economies in the Working Party on Domestic Regulation, JOB(06)/66/Rev.2, 10 July 2006; Communication from the United States, Outline of Position on a Draft Consolidated Test in the WPDR, JOB(06)/223, 11 July 2006; Appellate Body Report on United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services ( US Gambling ), WT/DS285/AB/R, 232

241 - Room Document April 2006 Working Party on Domestic Regulation - DRAFT - DISCIPLINES on domestic regulation pursuant to gats article vi:4 Informal Note by the Chairman 233

242 - DRAFT - DISCIPLINES ON DOMESTIC REGULATION I.INTRODUCTION 1.Having regard to Article VI:4 of the GATS, Members have agreed to the following disciplines on domestic regulation. 2.The purpose of these disciplines is to facilitate trade in services by ensuring that measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are based on objective and transparent criteria, such as competence and the ability to supply the service, and do not constitute disguised restrictions on trade in services. 3.Members recognize the right to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet national policy objectives 1 and, given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of developing countries to exercise this right. 4.Members recognize the difficulties which may be faced by individual developing countries in implementing disciplines on domestic regulation, particularly difficulties relating to level of development, size of the economy, and regulatory and institutional capacity. Members also note the difficulties which may be faced by service suppliers of developing countries in complying with measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards of other Members. II.Definitions.gov.tw" National policy objectives include objectives iden 234

243 5."Licensing requirements" are substantive requirements, other than qualification requirements, with which a natural or a juridical person is required to comply in order to obtain, amend or renew authorization to supply a service. 6."Licensing procedures" are administrative or procedural rules that a natural or a juridical person, seeking authorization to supply a service, including the amendment or renewal of a licence, must adhere to in order to demonstrate compliance with licensing requirements. 7."Qualification requirements" are substantive requirements relating to the competence of a natural person to supply a service, and which are required to be demonstrated for the purpose of obtaining authorization to supply a service. 8."Qualification procedures" are administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorization to supply a service. 9."Technical standards" are measures that lay down the characteristics of a service or the manner in which it is supplied. Technical standards also include the procedures relating to the enforcement of such standards. III.GENERAL PROVISIONS 10.These disciplines apply to measures by Members relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards affecting trade in services in sectors where specific commitments are undertaken. They do not apply to measures which constitute limitations subject to scheduling under Article XVI or XVII. 11.Measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards shall be pre-established, based on objective criteria and relevant to the supply of the services to which they apply. 12.Nothing in these disciplines prevents Members from exercising the right 235

244 to introduce or maintain regulations in order to ensure provision of universal service, in a manner consistent with their obligations and commitments under the GATS. IV.TRANSPARENCY 13.Each Member shall ensure that measures of general application relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards are promptly published through printed or electronic means. Where publication is not practicable, these measures shall be made publicly available in a manner that enables any interested persons to become acquainted with them. 14.In fulfilling its obligations under paragraph 13, each Member shall ensure that detailed information regarding the measures concerned is also published through printed or electronic means, or otherwise made publicly available in a manner that enables any interested persons to become acquainted with them. 15.Each Member shall maintain or establish appropriate mechanisms for responding to enquiries from any interested persons regarding any measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards. Such enquiries may be addressed through the enquiry and contact points established under Articles III and IV of the GATS or any other mechanisms as appropriate. 16.Each Member shall endeavour to ensure that any measures of general application it proposes to adopt in relation to matters falling within the scope of these disciplines are published in advance. Each Member should endeavour to provide reasonable opportunities for interested persons, including those of other Members, to comment on such proposed measures. Each Member should also endeavour to address collectively in writing substantive issues raised in comments received from interested persons with respect to the proposed measures. 236

245 V.LICENSING REQUIREMENTS 17.Where residency requirements for licensing not subject to scheduling under Article XVII of the GATS exist, each Member shall consider whether alternative less trade restrictive means could be employed to achieve the purposes for which these requirements were established. VI.LICENSING PROCEDURES 18.Each Member shall ensure that licensing procedures, including application procedures and, where applicable, renewal procedures, are as simple as possible and do not in themselves constitute a restriction on the supply of services. Applicants shall be allowed a reasonable period for the submission of licence applications and, in principle, not be required to approach more than one competent authority in connection with an application for a licence. 19.Each Member shall ensure that the decisions of, and the procedures used by, the competent authority are impartial with respect to all market participants. To this end, a competent authority should be separate from and not accountable to any supplier of the services for which a licence is required. 20.An applicant should be permitted to submit an application at any time. The competent authority shall initiate the processing of an application without undue delay. Wherever possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions. 21.The competent authority shall, after receipt of an application, inform the applicant whether the application is considered complete. In the case of an incomplete application, the competent authority shall identify the additional information required to complete the application and provide the opportunity to correct deficiencies within a reasonable timeframe. Upon request, the competent authority shall notify the applicant without undue delay of the status of the application. 22.Authenticated copies should be accepted, wherever possible, in place of 237

246 original documents. 23.If a licence application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle, the applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision. An applicant should be permitted, within reasonable time limits, to resubmit an application. 24.Each Member shall ensure that the processing of a licensing application, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Member shall endeavour to establish and to publish the normal timeframe for processing of an application. 25.A licence, once granted, enters into effect without undue delay. 26.Each Member shall ensure that any licensing fees 1 are commensurate with the costs incurred by the competent authorities and do not in themselves restrict the supply of the service. VII.QUALIFICATION REQUIREMENTS 27.In verifying and assessing qualifications, the competent authority shall give positive consideration to relevant professional experience of the applicant as a complement to educational qualifications. Where membership in a relevant professional association in the territory of another Member is indicative of the level of competence or extent of experience of the applicant, such membership shall also be given positive consideration. tified at both national and sub-national levels. 205 Licensing fees do not include payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandat 238

247 28.Residency requirements, other than those subject to scheduling under Article XVII of the GATS, shall not be a pre-requisite for assessing and verifying the competence of a service supplier of another Member. 29.Once qualification requirements and any applicable licensing requirements have been fulfilled, each Member shall ensure that a service supplier is allowed to supply the service without undue delay. VIII.QUALIFICATION PROCEDURES 30.Each Member shall ensure that qualification procedures are as simple as possible and do not in themselves constitute a restriction on the supply of services. Applicants shall, in principle, not be required to approach more than one competent authority for qualification procedures. 31.Each Member shall ensure that adequate procedures exist for the verification and assessment of qualifications held by service suppliers of other Members. 32.Provided an applicant has presented supporting evidence of qualifications, the competent authority, in verifying and assessing qualifications, shall identify any deficiency and advise the applicant of requirements to meet the deficiency. Such requirements may include course work, examinations, training, and work experience. Each Member shall provide the opportunity to applicants to fulfil such requirements in the home, host or any third jurisdiction, wherever possible. 33.Each Member shall ensure that examinations, if required, are scheduled at reasonably frequent intervals. Applicants for examinations shall be allowed a reasonable period for the submission of applications. 34.An applicant should be permitted to submit an application at any time. The competent authority shall initiate the processing of an application without undue delay. 35.The competent authority shall, after receipt of an application, inform the 239

248 applicant whether the application is considered complete. In the case of an incomplete application, the competent authority shall identify the additional information required to complete the application and provide the opportunity to correct deficiencies within a reasonable timeframe. Upon request, the competent authority shall notify the applicant without undue delay of the status of the application. 36.Authenticated copies should be accepted, wherever possible, in place of original documents. 37.If an application for verification and assessment of qualification is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle, the applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision. An applicant should be permitted, within reasonable time limits, to resubmit an application. 38.Each Member shall ensure that the processing of an application, including verification and assessment of a qualification, is completed within a reasonable timeframe from the submission of a complete application. Each Member shall endeavour to establish and to publish the normal timeframe for processing of an application. 39.Each Member shall ensure that any fees relating to qualification procedures are commensurate with the costs incurred by the competent authorities and do not in themselves restrict the supply of the service. IX.TECHNICAL STANDARDS 40.Members are encouraged to ensure maximum transparency of relevant processes relating to the development and application of domestic and international standards by non-governmental bodies. 41.Where technical standards are required and relevant international standards exist or their completion is imminent, Members should take them or 240