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6 World Trade Rev. 1 (2007)

handle is hein.journals/wtradev6 and id is 1 raw text is: World Trade Review (2001), 6. 1, 1-23 PrI7ted In the UniTed KIngdom © Petros C Mavro/id/ doi:10.10171S1474745606003077 Highway XVI re-visited: the road from non-discrimination to market access in GA TS PETROS C. MAVROIDIS* Edwin B. Parker professor of law at Columbia Law School, New York, professor at the Law Faculty of the Un. of Neuchatel and CEPR Abstract: The GATS (General Agreement on Trade in Services) is a highly complicated legal instrument and prone to various interpretations because of the embedded ambiguity. It should not come as a surprise that in the context of all disputes concerning services, WTO panels and the Appellate Body reached diametrically opposite conclusions on the same issues. Un-appealed panel reports, on the other hand, have not been welcome either. One of the major, if not the major, issue is the legal relationship between Arts. XVI and XVII GATS, which regulate market access. The manner in which this relationship has been interpreted inescapably leads to constructing the GATS as a move beyond negative integration. This is at odds with the intent of the founding fathers, the letter and the spirit of the GATS itself. Subjecting Art. XVI to Art. XVII GATS guarantees respect of the negative integration character of GATS. It thus avoids internationalizing issues that WTO Members want to keep in their domaine reserve. Counter-intuitively probably, it allows for more trade liberalization. Using the unfortunate US-Gambling report as an example, this report suggests an approach to understanding Art. XVI as a sub-set of Art. XVII GATS. 1. The weight of the non-discrimination obligation in scheduling GATS commitments This paper deals with an issue which, at first glance, might seem quite narrow to the wider public but which has very important repercussions for the understanding and the functioning of the WTO General Agreement on Trade in Services Numerous discussions with Bernard Hoekman, Henrik Horn, Patrick Low, Aaditya Mattoo, Alan Sykes, Bob Staiger have helped me shape my thinking on this score. I am also thankful to anonymous referees for their useful comments. Juan-Alberto Marchetti has very generously spent time and effort discussing all issues reflected in this paper. His very valuable comments helped me address many of the shortcomings in previous drafts and develop my understanding of and about GATS in general. He is in many ways the virtual co-author of this paper, our disagreements on some of the issues discussed not- withstanding.

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