CYIL 2013

THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO The Progress Report of 1999 adopted by the Council for Trade in Services clarified that the electronic delivery of services at least comes within the ambit of GATS. 71 The Appellate Body confirmed this by applying GATS to the electronic provision of gambling services. 72 Considering that electronic commerce was non-existent when GATS was concluded, the Appellate Body’s approach indicates that GATS can apply to newly developed electronic services if these can be classified under existing commitments. 73 This decision must have certainly warned negotiators to take extra care when agreeing to schedule new market access or national treatment commitments as the clarity of a Member’s schedule is crucial in determining the extent of the obligations arising from the commitments in times of vast technological advancement. 74 Some Members went further than the Progress Report and submitted that all products that are delivered electronically are to be considered as services. 75 The flexibility of GATS in comparison to agreements on trade in goods certainly plays a role in such statements. Considering that at least some electronic commerce is to be scrutinised under GATS, the question remains whether services are supplied under Mode 1 (both consumer and service provider remain in their respective home country, the service is provided across the border), or Mode 2 (cross-border movement by the consumer to the service provider’s home country to consume the service). 76 Moreover, a key concern is whether electronic commerce should be disciplined through (i) a horizontal reform of the whole WTO system; (ii) the existing rules in the WTO framework; or (iii) new rules in the WTO framework. A horizontal reform across WTO instruments is very ambitious, but possibly the most efficient way of dealing with electronic commerce as it can cater to new developments that may challenge the arbitrary delimitations between services, goods, and intellectual property that risk being made under the existing rules. The existing framework appears to be insufficiently adapted to technological changes. A new instrument could take the plurilateral approach considering that not all Members have like interests in disciplines on electronic commerce. 77 In practice, the DDA negotiations on the services aspects of electronic commerce seem to be truly blocked. Members are currently discussing the organisation of a workshop on electronic commerce. 78 It seems that Members do not intend to go 71 S/L/74, Work Programme on Electronic Commerce Progress (Report by the Council for Trade in Services 19 July 1999) 4. 72 US-Gambling (AB) . 73 Sacha Wunsch-Vincent, ‘The Internet, Cross-Border Trade in Services, and the GATS: Lessons from US-Gambling ’ (2006) 5 World Trade Review 319, 324. 74 ibid . 75 S/L/74, Work Programme on Electronic Commerce Progress (Report by the Council for Trade in Services 19 July 1999) 6 & 25. 76 ibid ; Drake and Nicolaïdis 411;Wunsch-Vincent, ‘The Internet, Cross-Border Trade in Services, and the GATS: Lessons from US-Gambling’ 329. 77 Drake and Nicolaïdis 405. 78 S/C/40, Work Programme on Electronic Commerce (Report by the Chairman of the Council for Trade in Services 10 December 2012) which builds on the work programme established in WT/L/843, Work