Book contents
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- PART 5 Market access, national treatment and domestic regulation
- 14 Some thoughts on the concept of ‘likeness’ in the GATS
- 15 Comment: The unbearable lightness of likeness
- 16 Towards a horizontal necessity test for services: Completing the GATS Article VI:4 mandate
- 17 Comment: Quis custodiet necessitatem? Adjudicating necessity in multilevel systems and the importance of judicial dialogue
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
15 - Comment: The unbearable lightness of likeness
from PART 5 - Market access, national treatment and domestic regulation
Published online by Cambridge University Press: 03 September 2009
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- PART 5 Market access, national treatment and domestic regulation
- 14 Some thoughts on the concept of ‘likeness’ in the GATS
- 15 Comment: The unbearable lightness of likeness
- 16 Towards a horizontal necessity test for services: Completing the GATS Article VI:4 mandate
- 17 Comment: Quis custodiet necessitatem? Adjudicating necessity in multilevel systems and the importance of judicial dialogue
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
Summary
Overview
In the previous chapter Mireille Cossy essentially does three things. First, she describes the state-of-play of ‘like products’ under GATT national treatment: on the one hand, the four criteria of physical characteristics, end-use, consumer tastes and tariff classification; on the other hand, the formal rejection by the Appellate Body of the aims-and-effects test (both in GATT and GATS). Second, Cossy argues that likeness under GATS needs ‘something different’. In her words (at pp. 339–340):
The intangibility of services activities, the existence of the four modes of supply, the difficulty in separating the service from the supplier, and the fact that regulation for services is generally more complex than for goods would seem to call for a more subtle approach.
Third, and finally, according to Cossy, this ‘something different’ is an improved aims-and-effects test according to which ‘elements related to the “regulatory context” of the service and/or of the supplier should play a role in relation to GATS national treatment’ (at p. 341). Cossy calls her proposal an improved aims-and-effects test in that, contrary to previous GATT cases that upheld aims and effects, Cossy's test would ‘ensure that only bona fide regulatory distinctions would be accepted, and that the effect on foreign services and suppliers is not disproportionate’ (at p. 346). This would be achieved, argues Cossy, by strengthening the aims-and-effects test ‘so as to ensure that a reasonable nexus exists between the measure and the policy objective in question’ (at p. 349).
- Type
- Chapter
- Information
- GATS and the Regulation of International Trade in ServicesWorld Trade Forum, pp. 358 - 369Publisher: Cambridge University PressPrint publication year: 2008
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