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
- References
14 - Some thoughts on the concept of ‘likeness’ in the GATS
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
- References
Summary
Introduction
The concept of ‘like services and service suppliers’ under the General Agreement on Trade in Services (GATS) is still very much uncharted territory. One explanation may be the limited jurisprudence – only five disputes – existing so far under the GATS. In two disputes, the Panels and the Appellate Body made findings with respect to national treatment, but likeness was addressed in a very cursory manner. Moreover, in WTO services bodies, Members have shown little interest in discussing these issues in abstracto and have expressed a preference for leaving it to the Panels and the Appellate Body to determine likeness on a case-by-case basis, as has been done under the GATT.
There is perhaps one point on which there is general agreement: that the application of the national treatment obligation and the determination of likeness give rise to a wider range of questions – and uncertainties – under the GATS than under the GATT. The intangibility of services, the difficulty of drawing a line between the product and the producer, the existence of four modes of supply, the combined reference to services and service suppliers, the lack of a detailed nomenclature and the customised nature of many transactions are some of the factors that complicate the task of establishing likeness in services trade. In brief, ‘the concept of likeness… is more elusive in services than in goods’.
- Type
- Chapter
- Information
- GATS and the Regulation of International Trade in ServicesWorld Trade Forum, pp. 327 - 357Publisher: Cambridge University PressPrint publication year: 2008
References
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