GATS, Market Access and Gambling

Dr. Federico Ortino

BIICL

AB Analysis of the Meaning of Art. XVI

Articles 31-32 Vienna ConventionUnsatisfactory analysis by the AB

• Textual analysis

• Analysis of the context of the provision (what are the features of Artt. XVI/XVII/VI; what is the nexus with the GATT and its comparable provisions, Artt. III/XI?)

• Analysis of the “object and purpose” of the provision(what is the underlying rationale of the Market Access provision? Why are those measures subject to such discipline?)

“Context”

Article XVI(rule)

(a) Limitation on the number of serv. suppliers in the form of numerical quotas, monopolies, exclusive service suppliers or econ. needs test; (b)-(f)

“shall not maintain or adopt”

Article XVII(standard)

“All measures affecting the supply of services”

“treatment no less favourable than that it accords to its own like services and serv. Suppliers

Article VI.5(standards)

“Licensing”

“technical standards”

“qualification requirements”

“objective and transp.criteria”

Least-restrictive/necessity test

Article VI.4(standards/rules)

idem, plus “qualification procedures”

“future disciplines”

GATS Provision Objective Element Normative Content

“Object and purpose”• In the ideal world envisaged by the drafters of the GATS, the measures

listed in Art. XVI lack, in principle, a policy justification (ie., they cannot be justified on the basis of either economic or non-economic policies).Presumption that those measure lack regulatory credibility, because they are both economically and non-economically inefficient

• Scheduling Guidelines (on Limitations on Market Access)• “A Member grants full market access in a given sector and mode of supply when

it does not maintain in that sector and mode any of the types of measures listed in Article XVI. […] The list is exhaustive […] The quantitative restrictions can be expressed numerically, or through the criteria specified in sub-paragraphs (a) to (d); these criteria do not relate to the quality of the service supplied, or to the ability of the supplier to supply the service (i.e. technical standards or qualification of the supplier).” [emphasis added]

• Empirical evidence with regard to Article XI and Article XX GATT