Model Clauses for the Exclusion of Public Services from Trade and Investment Agreements

Abstract

The study develops and explains model clauses which could be used in international trade and investment agreements to exclude public services from the scope of these agreements in their entirety in a legally reliable manner. The study is based on the assumption that it would be best for the protection of public services if trade and investment agreements or the most contentious parts of these agreements would not apply to public services. The study is organized in three main parts: Section II provides a short overview of the current model of the European Union towards public services in trade and investment agreements and will explain its legal consequences. Subsequently, section III analyses the main flaws of this approach and will develop arguments why the complete exclusion of public services from trade and investment agreements could be seen as a “golden standard” for safeguarding the provision and organization of public services in in the EU. The main part of this study, section IV develops a model clause for the exclusion of public services. It will be shown that the major challenge is the definition of the notion of public services in a manner that does not preclude the future development of new public services and new models of providing or organizing them. The last section, section V, addresses potential challenges and criticism of the proposed model clauses and will briefly assess alternatives to the proposed model clauses.

Keywords: trade agreements; investment agreements; public services; model clause