The GATS is structurally more complex than
the GATT.
Among the most conspicuous differences are the existence of four modes
of supply and of two distinct legal parameters, market access and national
treatment, to determine conditions of market entry and participation.
Thus, while a tariff schedule under GATT, in its simplest form, displays
one tariff rate by sector, all specific commitments under the GATS consist
of at least eight inscriptions, four under each market access and national
treatment. This relatively complex structure of the Agreement is intended
to enable Members to accommodate sector- or mode-specific constraints
they may encounter in the scheduling process and to progressively liberalize
their services trade in line with their national policy objectives and
levels of development. Complexity can thus be viewed, in part, as a precondition
for effectiveness and flexibility.
Nevertheless, national administrations, in particular in small developing countries, may harbour doubts. From their perspective, the complexity of the Agreement implies a formidable negotiating challenge. It not only complicates internal decision-making and consultation procedures with other Ministries and the private sector, but commands more attention (and resources) in the interpretation of requests received from, and the preparation of offers to be send to, trading partners.
The Agreement seeks to address such concerns. First, it expressly
recognizes the situation of developing countries and provides individual
Members with “appropriate flexibility” for opening fewer sectors and liberalizing
fewer types of transactions in line with their development situation.
While these provisions in
Article XIX:2 may have been intended mainly to protect developing
countries from overly ambitious commitments that, especially in the absence
of appropriate regulatory frameworks, may cause excessive adjustment pains,
they also protect from undue negotiating pressure across too wide a range
of sectors and policy areas. Moreover,
Article XXV of the GATS expressly recognizes the need for the WTO
Secretariat to provide technical assistance to developing countries. The
Article needs to be read in conjunction with the Negotiating Guidelines
and Procedures of March 2001 and, even more important, the Doha Ministerial
Declaration of November 2001. The Declaration further emphasizes, and
elaborates on, the role and necessity of technical cooperation and capacity
building (paras. 38 to 41).
