Regulatory Autonomy Constraints from GATS’ Unconditional Obligations: The Case of the European Union
Policy Research Centre on Foreign Affairs, International Entrepreneurship and Development Cooperation for the Government of Flanders, Paper 12
79 Pages Posted: 12 Mar 2014 Last revised: 28 Jan 2015
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Regulatory Autonomy Constraints from GATS’ Unconditional Obligations: The Case of the European Union
Regulatory Autonomy Constraints from GATS’ Unconditional Obligations: The Case of the European Union
Date Written: March 1, 2014
Abstract
In this report, the inherent tension between regulatory autonomy and trade liberalisation is addressed with a focus on trade in services. Therefore, this report examines in detail what is meant by the term ‘(constraints on) regulatory autonomy’ in trade law literature and develops five dimensions of the term: (i) endogenous and exogenous regulatory autonomy, (ii) regulatory autonomy related to the interest which a measure aims to advance, (iii) macro level constraints stemming from trade agreements, (iv) regulatory autonomy concerns resulting from the three steps of establishing a trade law violation, and (v) constraints related to the nature of the obligation. Subsequently, this report addresses how, in the case of the European Union, GATS’ unconditional obligations constrain regulatory autonomy. Aside from the Most-Favoured-Nation obligation, we address a series of obligations related to transparency. Our preliminary conclusions reflect the partial nature of this report, but already highlight that these unconditional obligations contain a few possibly problematic constraints on regulatory autonomy.
Keywords: WTO, World Trade Organization, GATS, General Agreement on Trade in Services, services, general obligations, MFN, most-favoured-nation treatment, monopolies, transparency, legal remedies
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