CYIL 2013

THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO revised the existing GPA, expanded its scope and took into account evolutions in government procurement. It adopts a horizontal approach and applies to goods, services or a combination thereof, in the context of government procurement. It remains to be seen whether the revised GPA will better succeed at reaching its goals than its predecessor and how it will reflect on GATS negotiations on procurement. The current EU proposal on GATS procurement disciplines seems to have been dismissed and as stated, suggestions for future action are only aimed at identification and measurement of government procurement. 44 It can be argued that the conclusion of the revised GPA, which addresses the sense of urgency felt by the acceding Members and reflects the lack of understanding on the multilateral level, means GATS disciplines on government procurement are still far away. Moreover, such GATS negotiations may become even less attractive if more large economies, such as China or Russia, accede to the GPA. 2.2.3 Subsidies Article XV, the only GATS provision that explicitly deals with subsidies, states that ‘in certain circumstances, subsidies may have distortive effects on trade in services. Members shall enter into negotiations with a view to developing the necessary multilateral disciplines’. Hence, GATS currently treats subsidies as any other measure. However, most Members have scheduled exemptions and limitations for subsidies. 45 Additionally, Article XV states that the negotiations should also address the appropriateness of countervailing procedures. Considering the importance of subsidies as a policy instrument, it is not surprising that negotiations on subsidies disciplines in GATS have been slacking. In practice, Members are partaking in discussions that amount to (i) agreeing on a GATS definition for subsidy, (ii) investigating which subsidies distort trade, and (iii) how to identify, measure and, where necessary, discipline such subsidies. If all this would amount to the conclusion that the trade restrictive outcomes of subsidies in trade are relatively weak, further negotiations might not even be worth the while. 46 The latest WPGR Annual Reports echo these concerns: some Members argue that no negotiations should be conducted before evidence of trade distortion is found, others prefer starting negotiations. 47 Members only agree on the fact that more and better information on the trade restrictive effects of subsidies is necessary. 48 However, in practice Members are unwilling to provide such information. 49 Lastly, there have not 44 S/WPGR/22, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services (Adopted 10 November 2011) 6. 45 Sauvé 326. 46 Gauthier, O’Brien and Spencer 183. 47 S/WPGR/22, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services (Adopted 10 November 2011) 8; S/WPGR/23, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services (Adopted 29 November 2012) 4. 48 S/WPGR/22, Annual Report of the Working Party on GATS Rules to the Council for Trade in Services (Adopted 10 November 2011) 8. 49 Jara and Domínguez 118.