CYIL 2013

THE STATE OF PLAY AND FUTURE OF SERVICES NEGOTIATIONS IN THE WTO on the multilateral level. Even though such an approach is economically less efficient than true multilateral liberalisation, it is possibly much more efficient than the preferential trade agreements. 92 Lastly, some of the strengths of the multilateral trading system remain in place: for example, all Members remain in constant dialogue and the WTO’s dispute settlement system remains competent to adjudicate disputes. In the case of services, the flexibility of the plurilateral approach is in line with general GATS principles. Hence, a plurilateral approach within the multilateral trading system might be the best way forward. 93 Of course, the plurilateral approach is not a perfect solution. First, plurilateral agreements are perhaps very difficult in the context of the Single Undertaking. However, the limited agenda for the Bali Ministerial Conference, which focuses on a small package of trade facilitation, some agricultural issues and issues related to developing countries and LDCs, may signal that there is a diplomatic way out of the Single Undertaking. 94 Second, aside from opposition by parties whose negotiating position is weakened by such plurilateral agreements, they also risk fragmenting and complicating the regulation of trade in services even more. A sufficiently ambitious first agreement for any given issue would be necessary to avoid more fragmentation. Otherwise, more ambitious agreements may risk being negotiated each time a group of like-minded Members is prepared to do so. However, this issue has perhaps already become an irreversible trend as current practice is already liberalising trade in services at multiple speeds. The plurilateral approach could be a way of embracing this evolution and bringing it back within the WTO framework. In this sense, the decision to negotiate the TISA outside the WTO framework can be seen as a very disappointing move for the multilateral trading system. Nonetheless, it must be stressed that both TISA and mega-regional agreements are still nowhere near completion. Still, it would be difficult to ascertain that it is best for the WTO to hold still and wait for the outcome of these evolutions before deciding how to progress. Third, as this article indicates, not all subjects for which negotiations are on-going are suited for a plurilateral approach. As it concerns negotiations on domestic regulation, a plurilateral approach may be a possible avenue. In the ESM negotiations, the goal is the creation of an additional exception to GATS obligations and commitments. Hence, integration of a possible ESM into GATS seems to be the logical path. With regard to government procurement, the horizontal plurilateral GPA possibly alleviates the incentive to reach an agreement on procurement in services. Nonetheless, it should be noted that the Understanding on Financial Services already includes government procurement and may hence serve as a model for more sectoral disciplines. 95 Moreover, the GPA possibly paved the way for an agreement on 92 See supra , on the new GPA and its impact on government procurement negotiations. 93 Adlung considers such an approach in Adlung, ‘Services Negotiations in the Doha Round: Lost in Flexibility?’ 889-891. 94 ICTSD, ‘WTO Formalises Azevêdo Appointment as Next Chief’ (2013) 17 Bridges Weekly Trade News Digest. 95 ibid 890.