SSRN-id1280219

Electronic copy available at: http://ssrn.com/abstract=1280219

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Article XVI

Market Access

Panagiotis Delimatsis and Martin Molinuevo

1. With respect to market access through the modes of supply identified in Article I,

each Member shall accord services and service suppliers of any other Member

treatment no less favourable than that provided for under the terms, limitations and

conditions agreed and specified in its Schedule.8

2. In sectors where market-access commitments are undertaken, the measures which a

Member shall not maintain or adopt either on the basis of a regional subdivision or

on the basis of its entire territory, unless otherwise specified in its Schedule, are

defined as:

a) limitations on the number of service suppliers whether in the form of numerical

quotas, monopolies, exclusive service suppliers or the requirements of an

economic needs test;

b) limitations on the total value of service transactions or assets in the form of

numerical quotas or the requirement of an economic needs test;

c) limitations on the total number of service operations or on the total quantity of

service output expressed in terms of designated numerical units in the form of

quotas or the requirement of an economic needs test;9

d) limitations on the total number of natural persons that may be employed in a

particular service sector or that a service supplier may employ and who are

necessary for, and directly related to, the supply of a specific service in the form

of numerical quotas or the requirement of an economic needs test;

e) measures which restrict or require specific types of legal entity or joint venture

through which a service supplier may supply a service; and

f) limitations on the participation of foreign capital in terms of maximum

percentage limit on foreign shareholding or the total value of individual or

aggregate foreign investment.

Footnote 8: If a Member undertakes a market-access commitment in relation to the

supply of a service through the mode of supply referred to in subparagraph 2 a) of

Article I and if the cross-border movement of capital is an essential part of the service

itself, that Member is thereby committed to allow such movement of capital. If a

Member undertakes a market-access commitment in relation to the supply of a service

through the mode of supply referred to in subparagraph 2 c) of Article I, it is thereby

committed to allow related transfers of capital into its territory.

Footnote 9: Subparagraph 2 c) does not cover measures of a Member which limit inputs

for the supply of services.

Assistant Professor of International Trade Law, Tilburg University, the Netherlands; and Senior

Research Fellow, WTI/NCCR, Berne, Switzerland; Research Fellow, WTI/NCCR, Berne, Switzerland,

respectively. Contact: [email protected].

Electronic copy available at: http://ssrn.com/abstract=1280219

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A. General

The GATS aims to establish a legally binding set of commitments to enhancing

predictability and transparency under the tenet of progressive liberalization.1 The main

tools of liberalization of the GATS, that is, Art. XVI on market access and XVII on national

treatment, are to be found in Part III of the Agreement, entitled Specific Commitments. The

raison dtre of Part III of the GATS was to capture a wide range of trade barriers to trade in

services and establish a mechanism for scheduling specific commitments on them.2 Part III of

the GATS does so by setting disciplines aimed to limit the use of certain quantitative

restrictions to the provision of services (Art. XVI) and the adoption or maintenance of

discriminatory measures against foreign service suppliers (Arts. XVI and XVII). Additionally,

Part III allows Members to undertake commitments regarding other types of restrictions that

escape the scope of Arts. XVI and XVII so called, Additional Commitments (Art. XVIII).

The market access obligation, like the national treatment obligation, does not apply

unconditionally. Rather, it applies only to services sectors that are inscribed in the Members

Schedules of specific commitments and subject to the terms, limitations and conditions set out

therein.3 Furthermore, unlike national treatment, market access is not a general concept

under GATS. The measures covered by Art. XVI are a well-defined set of quantitative

restrictions as listed in Art. XVI:2, lit. a-f that may hamper the ability to perform or expand

business in the countries market.4

As to the listing of commitments, the GATS adopts a so-called hybrid approach, which

combines elements of both positive and negative listing.5 In Art. XVI, the market access

obligation is negatively defined in that it prohibits several types of restrictions that hamper the

supply of services in a given market. At the same time, ensuring effective market opening to

international trade in services is arguably the overarching objective of the GATS. All GATS

substantive obligations aim to achieve meaningful access to domestic services markets.

Granting national or MFN treatment, abiding by the GATS transparency obligations and the

other GATS obligations should ultimately lead to improved conditions of entry into and

operation within the Members markets.

The extent of liberalization is reflected in the number of services sectors that are included in

each Schedule in conjunction with the restrictions listed therein. The content of the Schedules

also determines the scope of the market access and national treatment obligations for each

Member. As a result, the scope of these two obligations varies from Member to Member,

depending on each Members schedule and the commitments undertaken therein.6 This is the

fundamental application in the GATS of the overarching objective of progressive

liberalization when it comes to trade in services, as each Member may liberalize services

trade on varying levels and at different speeds.

Whereas both Arts XI GATT 1994 and XVI GATS deal with quantitative restrictions on

1 See Rec. 2 GATS Preamble. The US Gambling Panel noted that [p]rogressive liberalization entails

including more sectors in Members schedules and reduction or elimination of limitations, terms, conditions and

qualifications on market access and national treatment through successive rounds of negotiations. See Panel

Report, US Gambling, WT/DS285/R, para. 6.313; see also Delimatsis, Article XIX GATS, paras 1, 4-6. 2 Committee on Specific Commitments, Additional Commitments Under Article XVIII of the GATS,

Note by the Secretariat, S/CSC/W/34, 16 July 2002, para. 3. 3 In what follows, we use the term limitations as encompassing these three types of measures. This is

also in accordance with the list of measures/limitations laid down in Art. XVI: 2 lit. a - f. 4 See below, paras 14-15 and Section II.

5 Molinuevo, Article XX GATS, paras 14 and 22-26. See also, Delimatsis, JWT 40 (2006), 1059, 1062;

Fink & Molinuevo, 12-13. 6 Delimatsis, JWT 40 (2006), 1059, 1062.

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trade, they could hardly be considered analogous. Art. XI GATT 1994 is more

comprehensive, as it contains a per se prohibition regarding the use of quotas or other

measures resulting in a restriction or prohibition on the importation or exportation of any

product.7 Art. XVI, instead, can be regarded as a requirement to schedule market access

limitations. In this respect, the spirit of Art. XVI is closer to Art. II GATT 1994 on schedules

of tariff concessions. At the same time, Art. XVI covers both discriminatory and origin-

neutral quantitative limitations and, in this sense, has a broader scope than Art. XI GATT

1994. For similar measures regulating trade in goods, the GATT provides that Art. III GATT

1994 should preferably be applicable, by virtue of the Ad ote to Art. III GATT 1994.8

The GATS negotiating history reveals that Members construed market access under GATS as

extending beyond any notion of access for foreign service suppliers (tariff bindings in GATT)

to encompass all policies, mostly of a quantitative nature, that restrict market access; and this

even in a non-discriminatory manner.9 Having said this, Art. XVI:2 lit. e is not a quantitative

restriction, as it refers to the form of legal entity, whereas Art. XVI:2 lit. f relates to foreign

equity participation and, thus, is a discriminatory quantitative limitation. The measures that

require the creation of a joint venture are also discriminatory, as this type of establishment

typically involves cooperation between a domestic and a foreign company.

The introduction of a market access obligation predominantly dealing with quantitative

restrictions in the GATS was deemed necessary because, contrary to those to trade in goods,

barriers to trade in services typically display quota characteristics.10 Tariff barriers to trade

in services are rare due to the services intangible nature. As services escape any physical

control at borders, governments extensively use quantitative restrictions or, more generally,

non-tariff barriers to regulate their domestic markets.

B. Granting Market Access as Provided for in a Members Schedule (Art. XVI:1)

Art. XVI:1 entails a general prohibition on according less favourable treatment to foreign

services and service suppliers than that provided for in a Members Schedule. That

prohibition extends to the treatment afforded to services suppliers of any Member, in a non-

discriminatory manner.11 While the level of market access cannot be lower than that inscribed

in the Schedule, Members remain free unilaterally to adopt measures that entail a higher

degree of liberalization.12 In this sense, specific commitments resemble tariff bindings under

the GATT, which do not necessarily reflect the rates actually applied which can be more

liberal (lower) that the tariffs bound at the multilateral level. Thus, despite being commonly

expressed in terms of maximum quantitative restrictions, WTO Members entries in their

Schedules should be considered minimum market access guarantees for foreign services

7 Panel Report, India Autos, WT/DS146/R, WT/DS175/R, paras 7.246-7.249.

8 Mavroidis, Commentary, 46.

9 See, inter alia, Group of Negotiations on Services, Uruguay Round, Note on the Meeting of 27 May to

6 June 1991, MTN.GNS/42, 24 June 1991, 1-3; Group of Negotiations on Services, Uruguay Round, Note on the

Meeting of 24-28 June 1991, MTN.GNS/43, 15 July 1991, paras 34-36; Group of Negotiations on Services,

Uruguay Round, Note on the Meeting of 10-25 July 1991, MTN.GNS/44, 28 August 1991, para. 45; also Group

of Negotiations on Services, Uruguay Round, Scheduling of Initial Commitments in Trade in Services,

Explanatory Note, MTN.GNS/W/164, 3 September 1993, para. 4. For a different view, see Mavroidis, World

Trade Rev. 6 (2007), 1, 9. 10 See Francois & Wooton, Eur. J. Pol. Econ. 17 (2001), 389, 395.

11 In the view of the Panel of the US Gambling case, Art. XVI:1 hence contains a specific expression of

the MFN principle of Art. II (US Gambling, WT/DS285/R, paras 6.263-6.265). 12 Also US Gambling, WT/DS285/R, paras 6.263-6.264.

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suppliers on which each WTO Member may unilaterally expand.13 Such guarantees, therefore,

do not reveal the actual levels of protection, thereby reducing the significance of the

Schedules.

In US Gambling, the Appellate Body expressed the view that Art. XVI:1 points to the link

that exists between Members market access obligation in committed sectors, on the one

hand, and the terms, limitations and conditions inscribed in their respective Schedules, on

the other.14 Indeed, the market access obligation is subordinated to, and qualified by, the

relevant terms, limitations and conditions inscribed in Members Schedules.15 The use of

the phrase terms, limitations and conditions aims to make it clear that Members wished to

establish a broad market access obligation, so that Members feel compelled to schedule any

type of measures that may fall within the categories listed in Art. XVI:2.16 In other words,

Members Schedules specify the trade-restrictive measures that Members wish to maintain

with regard to the market access obligation. The terms agreed and specified featured in

paragraph 1 implicitly allude to the fact that, while Schedules reflect the commitments made

by one Member, the Schedules represent a common agreement among the entire WTO

membership.17

Members may not adopt or maintain measures that provide service suppliers with less

favourable treatment than that specified in the market access column of each Members

Schedule. Hence, when it comes to the appropriate standard of review, a Panels task is to

juxtapose this minimum treatment set out in the specific market access commitments in each

Members Schedule with the actual treatment that a Member offers when market access is

sought to determine whether the no less favourable treatment standard of Art. XVI:1 was

violated.18

Para. 1 refers to market access that is sought through the four modes of supply as set out in

Art. I:2, that is, cross-border supply; consumption abroad; commercial presence; and presence

of natural persons.19 These four modes correspond to the scope of the GATS.

20 In this sense,

Members are required to undertake specific commitments under the market access and

national treatment columns of their Schedules by reference to a services sector or subsector

and a mode of supply.21

Finally, footnote 8 to Art. XVI:1 aims to protect the movements of capital resulting from the

supply of services in a cross-border manner (mode 1) or through commercial presence

(mode 3), provided that a Member made a commitment on market access with respect to these

two modes of supply.22 In the first case, a Member is obligated to allow the ensuing capital

movement if the latter forms an essential part of the service supplied cross-border. Any

13 Mattoo, JWT 31 (1997) 1, 107, 110.

14 See Appellate Body Report, US Gambling, WT/DS285/AB/R, para. 214.

15 Compare Appellate Body Report, Canada Dairy, WT/DS103/AB/R, WT/DS113/AB/R, para. 134

(referring to Art. II:1 lit. b GATT 1994). 16 In US Gambling, the Panel noted that the words terms and conditions, which are also used in Art.

XX:1, relate to the measures to which Art. XVI:2 lit. e and the chapeau of Art. XVI:2 refer [to]. See US

Gambling, WT/DS285/R, para. 6.294. It can be argued, however, that there is no textual or contextual element

that may lead to this interpretation. Art. XX:1 simply replicates the wording of Art. XVI:1 which also refers to

terms, limitations and conditions. On this issue, see also Molinuevo, Article XX GATS, para. 11 17 See Appellate Body Report, EC Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R,

WT/DS68/AB/R, para. 109. 18 See US Gambling, WT/DS285/R, para. 6.263.

19 See Zacharias, Article I GATS, paras ???

20 See Council for Trade in Services, Trade in Services, Guidelines for the Scheduling of Specific

Commitments Under the GATS, Adopted on 23 March 2001, S/L/92, 28 March 2001, para. 26. 21 Molinuevo, Art. XX GATS, paras 13-17.

22 Also Siegel, AJIL 96 (2002), 561, 598.

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capital movement in the absence of which the service cannot be supplied, such as, for

instance, the ability to make outward transfers of funds to benefit from commitments with

regard to the cross-border supply of deposit services, should be considered essential. The

drafting of the first sentence of footnote 8 confirms that the capital movements covered are

only those inherently linked with the service itself, and do not extend to other types of related

transfers, such as payments. The term cross-border movement of capital should be regarded

as covering both inward and outward movements of capital. However, the obligation to allow

movement of capital pertaining to commercial presence suggests that Members are required to

allow transfers into their territory. A plain reading of the second sentence of footnote 8 ([...]

allow related transfers of capital into its territory) suggests that repatriation of capital does

not come within the purview of footnote 8. In any event, the obligation enshrined in footnote

8 to Art. XVI:1 is to be read in conjunction with Art. XI, and the relevant reference to the

Members rights and obligations under the IMF agreement.23

Through the insertion of this interpretative note, and the disciplines of Art. XI, Members

wished to make explicit their willingness to allow transfer of funds that can be indispensable

for the supply of services by means of modes 1 and 3. Conversely, movements of capital

associated with the supply of a service by means of mode 2 or 4 are not covered by footnote

8, thus allowing Members to maintain limitations on fund transfers with regard to these

modes of supply.24 In practice, international transfers will not be large in the latter two modes

of supply. Rather, transfers of funds will be more significant when they relate to modes 1 and

3. In any event, a Member is allowed to inscribe in its Schedule a restriction regarding the

related capital movement for services in committed sectors, as long as such restrictions do not

flout the disciplines of Art. XI.

C. Outlawing Recourse to Six Types of Limitations (Art. XVI:2)

The second paragraph of Art. XVI consists of a list of six different types of limitations on

market access. These restrictions may limit: (a) the number of service suppliers; (b) the total

value of services transactions or assets; (c) the total number of service operations or the total

quantity of service output; (d) the total number of natural persons who may be employed in a

certain service sector; (e) the forms of legal entity or joint venture through which a service

can be supplied; and/or (f) the participation of foreign capital. Except for lit. e, the limitations

set out in this paragraph are quantitative in nature and provide for maximum limitations.

Non-quantitative measures (except for those covered under Art. XVI:2 lit e) and measures

that set minimum requirements, rather than maximum limitations, fall outside the scope of

Art. XVI. This latter is also corroborated by the use of the term total in Art. XVI:2 lit. b, c,

d, and f, or the use of the term maximum under Art. XVI:2 lit. f.25

These limitations exhaust the types of market access restrictions prohibited by Art. XVI:1

and cannot be maintained or adopted unless a Member inscribes them in its Schedule under

the market access column.26 Regardless of whether or not they are discriminatory, all market

access limitations are to be inscribed in the market access column pursuant to the scheduling

23 Christ & Panizzon, Article XI GATS, paras ???.

24 Christ & Panizzon argue that the obligations enshrined in footnote 8 in regard to modes 1 and 3 may be

applied by analogy to modes 2 and 4. See Christ & Panizzon, Article XI GATS para. 18. It could be argued,

however, that modes 2 and 4 do not necessarily require capital transfers stricto sensu, but rather that funds

related to these modes are limited to transfers and payments. 25 On the other hand, the absence of the term total in Art. XVI:2 lit. a should not be taken to mean that

this provision does not cover maximum limitations. The Scheduling Guidelines lead to the same conclusion. See

S/L/92, para. 11. 26 MTN.GNS/W/164, para. 4; US Gambling, WT/DS285/R, para. 6.298.

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convention of Art. XX:2. In Mexico Telecoms, the Panel dealt with a limitation in which

Mexico was introducing a qualification as to when commercial presence would be allowed.

The Panel implicitly confirmed the exhaustive nature of the list of Art. XVI:2 by ruling that

temporal limitations, such as dates for entry into force or for the implementation of

commitments, do not constitute market access limitations within the meaning of Art. XVI:2.27

I. The Chapeau of Art. XVI:2

The chapeau of Art. XVI:2 clarifies that the per se prohibition of market access limitations

does not apply across the board, but only to scheduled sectors. Thus, the chapeau, like Art.

XVI:1, points to the conditional nature of the market access obligation. This provision

prohibits the maintenance or adoption of certain measures. Under Art. XXVIII lit. a, the term

measure is defined in an all-encompassing manner to cover any measure by a Member,

regardless of the legal form that it may take. It can be, inter alia, a law, regulation, rule,

procedure, decision, administrative action, but also provisions relative to professional

qualifications or licensing adopted by professional bodies with delegated power or, more

generally, actions by non-governmental actors that are attributable to a Members

government.28 To the extent that any of these measures falls under one of the limitations

itemized by Art. XVI:2 and applies to a committed sector, they need to be scheduled. The text

of the chapeau of Art. XVI:2 confirms that the list of prohibited measures is exhaustive and

not merely indicative by stating that the measures which a Member shall not maintain or

adopt [] are defined as the measures described by lit. a-f.

Rationae temporis, Art. XVI applies not only to measures that were adopted after the entry

into force of the GATS, but also to pre-existing measures that are maintained after the entry

into force of the agreement.

Finally, the per se prohibition covers measures that may be adopted or maintained at all levels

of government. This reference in the chapeau to the coverage of Art. XVI seems superfluous,

since Art. I:3 lit. a already makes it clear that the GATS covers measures taken at lower levels

of government. A Member, however, has the right to specify otherwise in its Schedule, and

thus limit the territorial applicability of Art. XVI. For instance, a Member could commit

itself to granting market access to foreign telecommunication service suppliers only in

underserved regions of its territory to promote the development of the infrastructures of these

regions, or certain sub-federal governments may limit the number of banks established in their

region.

II. The Six Limitations Identified in Art. XVI:2

1. Origin-9eutral Quantitative Restrictions (Art. XVI :2 lit. a-d)

The main text of Art. XVI:2 defines the types of limitations and measures that must be

eliminated, unless otherwise specified in a given Members Schedule. Paragraph 2 informs

Members of the manner in which they should inscribe such limitations in their Schedules.29

For instance, under Art. XVI:2 lit a, a Member can limit the total number of service suppliers

through the use of numerical quotas, monopolies, exclusive service suppliers or the

requirements of an economic needs test.30

27 Panel Report, Mexico Telecoms, WT/DS204/R, paras 7.357-7.358, 7.361-7.362.

28 Delimatsis, Trade in Services, 22.

29 US Gambling, WT/DS285/R, para. 6.293.

30 See US Gambling, WT/DS285/AB/R, paras 231-232.

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More generally, the restrictions of the first four subparagraphs of Art. XVI:2 relate to

numbers, or else, are quantitative limitations. Other than being expressed numerically,

these limitations can also be articulated through the criteria identified in Art. XVI:2 lit. a-d;31

that is, a Member can use numerical quotas, monopolies, exclusive service suppliers or

economic needs tests to limit market access.32 However, as the Appellate Body confirmed in

US Gambling, the thrust of Art. XVI:2 lit. a (and, by implication, of the first four

subparagraphs of Art. XVI:2) is not about the form of limitations, but on their numerical, or

quantitative nature.33 Put differently, it is not the form of the measure that will determine

the applicability of any of the Art. XVI:2 subparagraphs, but rather its quantitative nature,

irrespective of whether this nature is expressed in numerical terms or otherwise.34

In addition, while Art. XVI:2 describes the limitations that are prohibited unless otherwise

specified in a Members Schedule, it does not contain any indication regarding the means that

should be used to supply a service. The US Gambling ruling confirmed that, when a

Member undertakes a full market access commitment for a given service under one mode of

supply, it cannot maintain or adopt measures that prohibit the use of one, several or all means

of supply of that service in that mode unless it explicitly states so in its Schedule.35 This

interpretation is also in accordance with the concept of technical neutrality that is one of the

inherent characteristics of GATS.36 By the same token, a Member that inscribes a market

access commitment in a sector or subsector commits itself with respect to all services

included in that sector or subsector.37

As noted earlier, the list of the six types of limitations is exhaustive.38 Viewed from this

angle, a Member that does not maintain or adopt in a services sector and mode of supply any

of the six categories of measures identified in Art. XVI (i.e. it inscribed None in its

Schedule) grants full market access in this sector and mode of supply.39 However, it is

questionable whether a Member that provides full market access in the terms of Art. XVI is

obliged to open its market fully to foreign services providers.40 In this sense, under the GATS,

market access is a legally defined concept that encompasses a limited set of situations,

described in Art. XVI, and is not to be equated with common terms (such as entry, admission,

establishment, etc.) that imply the general ability to perform business activities in a given

market. Textual and contextual elements lead to the conclusion that no obligation to provide

for full market openness exists. First, according to footnote 8 to Art. XVI, restrictions on

movements of capital with respect to modes 2 and 4 escape Art. XVI. Secondly, Art. XVIII

also confirms that there may be restrictions on the supply of services that are not subject to

scheduling under Art. XVI or XVII.41 Such an interpretation appears to give full effect to the

principle of progressive liberalization and Members right to regulate.42 The US Gambling

Panel also supports this interpretation.43

The US Gambling ruling did not offer a straightforward answer to the aforementioned issue

31 S/L/92, para. 8. Also compare US Gambling, WT/DS285/AB/R, para. 225.

32 See below, para. 0.

33 See US Gambling, WT/DS285/AB/R, para. 232, emphasis added. As to Art. XVI:2 lit. c, the

Appellate Body reached a similar conclusion. Ibid., para. 247. 34 Delimatsis, JWT 40 (2006), 1059, 1068.


36 Also Wunsch-Vincent, World Trade Rev. 5 (2006), 319, 332.


38 See above, para. 0. See also MTN.GNS/W/164, para. 4; and US Gambling, WT/DS285/R, para. 6.298

39 MTN.GNS/W/164, para. 4; S/L/92, para. 8.

40 Delimatsis, JWT 40 (2006), 1059, 1064-1065.


42 Ibid., paras 6.313-6.317.

43 Ibid., para. 6.304.

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other than to confirm that a Member cannot maintain any of the measures listed under Art.

XVI:2 if it has made a full market access commitment.44 But this by no means suggests that a

full market access commitment automatically implies total market openness.

a) Limitations on the 9umber of Service Suppliers (Art. XVI:2 lit. a)

The standard of review under Art. XVI:2 lit. a requires two elements to be assessed: first,

whether the contested measure limits the number of service suppliers and, second, whether

this measure takes one of the forms described under lit. a.45

Service supplier within the meaning of the GATS is defined broadly to cover any person

that supplies a service.46 In turn, this person may be either a natural or a juridical person.

47

A natural person would typically reside in the territory of any WTO Member (including the

Member imposing the market access limitation) and would either be a national of another

WTO Member or have the right of permanent residence in that Member.48 A juridical person,

on the other hand, is also defined in a broad manner to encompass any legal entity duly

constituted or otherwise organized under applicable law, including any corporation, trust,

partnership, joint venture, sole proprietorship or association.49 An interpretative note to Art.

XXVIII lit. g makes it clear that, even in cases where the service is provided through forms of

commercial presence other than those described under Art. XXVIII lit. l, such as a

representative office or a branch, these entities, and, a fortiori, the juridical person that

established them, should be treated as service suppliers under the GATS within the territory

where the service is supplied through the commercial presence.50

In US Gambling, the WTO judiciary dealt with the question [of] whether a complete ban (or

a total prohibition) on the cross-border supply of a service (in casu, gambling and betting

services) in respect of which a full market access commitment was made should be regarded

as a market access limitation falling within Art. XVI:2 lit. a and c; and this even if this ban is

not explicitly expressed in numerical terms. The Panel implicitly found, and the Appellate

Body explicitly stated, that it is the numerical or quantitative nature of a measure that the

WTO judiciary will focus on in order to classify this measure under Art. XVI:2 lit. a.51

Consequently, both adjudicating bodies found that a measure that totally prohibits the supply

of certain services effectively limits to zero the number of service suppliers. In the view of the

WTO judiciary, such a prohibition results in a zero quota and hence constitutes a market

access limitation that takes the form of a numerical quota, as zero is quantitative in nature,

and, thus, numerical.52

44 See US Gambling, WT/DS285/R, para. 6.318, and US Gambling, WT/DS285/AB/R para. 215.

45 This second element is dealt with under paras 43 et seq.

46 Art. XXVIII lit. g. Also US Gambling, WT/DS285/R, para. 6.321.

47 Art. XXVIII lit. j.

48 See Art. XXVIII lit. k. This provision refers only to natural persons of another Member. This definition

will be used here so as also to include natural persons of the Member imposing the market access limitations,

since Art. XVI covers both discriminatory and non-discriminatory measures. 49 Art. XXVIII:l; also Art. XXVIII lit. m and n.

50 Footnote 12 to Art. XXVIII lit.g.

51 US Gambling, WT/DS285/R, para. 6.330-6.332; US Gambling, WT/DS285/AB/R, para. 232. As

noted earlier (supra para. 0), this applies to all four quantitative limitations under Art. XVI:2. 52 US Gambling, WT/DS285/AB/R, para. 227. See also Mexico Telecoms, WT/DS204/R, para. 7.85.

While it cannot be contested that a prohibition leads, by definition, to a limitation of the number of service

suppliers equal to zero a quantity , it is arguable whether, by this mere result, a prohibition can

straightforwardly be assumed to constitute a measure of a quantitative nature. The rationale behind a non-

discriminatory ban on a given business operation would commonly be found in certain qualitative elements of

that activity that, in the view of the regulator, make it undesirable in that market, in any quantity whatsoever. In

plain terms, the question how much of X is desirable assumes that X is not inherently undesirable, and aims at

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A narrower interpretation, like the one suggested by the United States, gave more relevance to

the wording in the form of found in Art. XVI:2 lit. a-d, and advocated that only measures

formally expressed in numerical terms would be covered by the prohibition on quotas.53 In the

Panels view, this interpretation would lead to absurd results.54

To reach this conclusion, both the Panel and the Appellate Body turned to the 1993

Scheduling Guidelines to confirm the view that a measure amounting to a zero quota falls

within Art. XVI:2 lit. a.55 In particular, the Panel drew on the example provided by the 1993

Scheduling Guidelines nationality requirements for suppliers of services (equivalent to

zero quota)56 to conclude that a measure that is not expressed in the form of a numerical

quota or economic needs test may still fall within the scope of Article XVI:2(a).57

b) Limitations on the Total Value of Service Transactions or Assets (Art. XVI:2 lit. b)

Art. XVI:2 lit. b prohibits the setting of ceilings to the total value of service transactions or

assets. As for the other quantitative measures listed in Art. XVI:2 lit. a, c, and d, these

restrictions cannot be established in the form of numerical quotas, or as the requirement of an

economic needs test.

Prohibiting restrictions on the value of services transactions, albeit a rather infrequent

measure, may be particularly relevant in some specific service sectors, such as financial

services. In this context, measures that, for instance, limit the total value of lending operations

that foreign banks may grant expressed in a monetary figure would be in violation of Art.

XVI:2 lit. b, unless otherwise scheduled, and provided that they cannot be justified as

prudential measures.

Art. XVI:2 lit. b also bans restrictions on the total value of assets of services suppliers. The

Scheduling Guidelines provide as an example a measure that would limit foreign bank

subsidiaries to x per cent of total domestic assets of all banks.58

The prohibition of lit. b on restrictions to the value of services transactions and assets,

together with lit. c, on the number of services operations and service output, ensure that

service suppliers are not restricted in their ability to conduct business operations in sectors

where commitments have been undertaken.

c) Limitations on the Total 9umber of Service Operations or on the Total Quantity of

Service Output (Art. XVI:2 lit. c)

Art. XVI:2 lit. c prohibits the adoption or maintenance of measures that limit the total

number of service operations or the total quantity of service output, expressed in terms of

designated numerical units in the form of quotas or the requirement of an economic needs

finding its right amount; the question whether X is desirable would entail instead an examination of its

qualititative characteristics. 53 US Gambling, WT/DS285/AB/R, para. 222.

54 US Gambling, WT/DS285/R, para. 6.332. The Appellate Body backed this finding. See US

Gambling, WT/DS285/AB/R, para. 250. 55 US Gambling, WT/DS285/R, para. 6.332; US Gambling, WT/DS285/AB/R, para. 237.

56 MTN.GNS/W/164, para. 6 lit. a.

57 US Gambling, WT/DS285/R, para. 6.332, emphasis added. It bears noting that the Appellate Body

had earlier reversed the Panels finding that these Guidelines constitute context pursuant to Art. 31 VCLT and,

instead, found that the Scheduling Guidelines should be regarded as supplementary means of interpretation

within the meaning of Art. 32 VCLT. Nevertheless, the Appellate Body relied on the Scheduling Guidelines, just

as the Panel did, to validate the interpretation that it advanced under Art. XVI. On the interpretative value of the

scheduling guidelines, see Ortino, JIEL 9 (2006), 117-148; also Mavroidis, World Trade Rev. 6 (2007), 1, 7. 58 S/L/92, para. 12.

10

test. The term total hints that this subparagraph covers maximum limitations imposed on

services operations and/or service output.59 These limitations are quantitative.

60

Service operations or service output are not defined in the GATS. The US Gambling Panel,

however, offered an interpretation of these two concepts.61 As to service operations, the

Panel contended that they mean activities comprised in the production of a given service.

Service output, on the other hand, was defined as describing the result of the production of

the service. The Panel based this conclusion on the example that the 1993 Scheduling

Guidelines contain regarding Art. XVI:2 lit. c, that is, restrictions on broadcasting time

available for foreign films.62

As the definitions of the two concepts also imply, there is scope for overlap between

limitations on the total number of service operations and limitations on the total quantity of

service output. The overall structure of this subparagraph also suggests that the delineation

between the elements used is not an easy task. In fact, such delineation is not necessary, since

all these elements demonstrate Members willingness to ensure that certain types of

quantitative, market-access limitations would be caught by the purview of this provision.63

The Panels analysis under this subparagraph also hints at this. Indeed, when the Panel

attempted to categorize the federal and state laws at issue, it did not feel compelled to decide

whether the measures at hand limit the number of service operations or the quantity of service

output.64

Thus, the Panels finding that domestic laws that prohibit the cross-border supply of a

committed services sector or subsector limit to zero the total number of service operations

and/or the total quantity of service output (zero quota) was upheld by the Appellate Body.

Consequently, both adjudicating bodies rejected the respondents view that only limitations

that contain express reference to numbered units are subject to Art. XVI:2. The Appellate

Body held that: [] a prohibition on the supply of services in respect of which a full market

access obligation has been undertaken is a quantitative limitation on the supply of such

services.65 Thus, the Appellate Body explicitly condemned as incompatible with Art. XVI

the maintenance or adoption of domestic measures establishing prohibitions in services

sectors where full market access commitments were made.

This finding can have far-reaching implications, as it does not seem to be limited to

prohibitions amounting to zero quotas. Arguably, the underlying rationale of this

interpretation is that a Member should not be allowed to circumvent its market access

commitment by prohibiting the entry into its market either overall (e.g., blanket ban) or with

respect to specific means of supply (e.g., ban on service supply through electronic means

only).66

While any limitation on the number of service operations or on the quantity of service output

is prohibited, Members are free to maintain or adopt measures that limit inputs for the supply

of a service. This is made clear in footnote 9 to Art. XVI:2 lit. c. The concept of an input for

the supply of services hints at a segmented contribution to the production of the service that,

added to other elements/inputs, ultimately leads to the supply of services.67


60 US Gambling, WT/DS285/AB/R, para. 246.


62 MTN.GNS/W/164, para. 6 lit. c.


64 US Gambling, WT/DS285/R, paras 6.355, 6.361, 6.369, 6.376.


66 Also Delimatsis, JWT 40 (2006), 1059, 1067.

67 In the view of some commentators, footnote 9 to Article XVI:2 lit. c allows Members to prevent the

11

Historically, footnote 9 was conceived to allow Members to regulate zoning and floor space.68

Additionally, it seems that Members also wanted to make a clear separation between the main

service and services that are inputs to it,69 e.g. accounting services vis--vis financial services,

so that a Member that made a liberalizing commitment under financial services would not be

obliged to extend this commitment to its accountancy sector unless it had explicitly said so in

its Schedule. On this score, the 1993 and 2001 Scheduling Guidelines make it clear that the

existence of a market access and national treatment commitment does not imply that the

supplier of a committed service is allowed to supply uncommitted services which are inputs

to the committed service.70 Thus, footnote 9 aims to protect against unwanted

liberalization.71 Even so, the distinction between a service and the inputs of its supply may be

very difficult in practice.

d) Limitations on the Total 9umber of 9atural Persons (Art. XVI:2 lit. d)

Art. XVI:2 lit. d prohibits restrictions on the total number of natural persons. While in

principle the provision applies to all modes of supply, it is addressed in particular to services

provided by means of modes 3 and 4. The provision applies to discriminatory and non-

discriminatory measures, and, like the other subparagraphs of Art. XVI:2, applies only to

maximum limitations. In this sense, a measure that requires that a commercial presence

employs at least a certain number of nationals would arguably not infringe the disciplines of

Art. XVI:2 lit. d and would not need to be scheduled under Art. XVI, since it would not limit

the total number of natural persons.72

Like other restrictions covered by Art. XVI, lit. d applies to restrictions that take the form of

numerical quotas or establish an economic needs test. These types of restrictions are

frequently used with regard to the employment of foreigners. The 2001 Scheduling

Guidelines list a limitation that reads foreign labour should not exceed x percent and/or

wages xy percent of total as an example of a prohibited restriction on the total number of

natural persons.

Art. XVI:2 lit. d clarifies that the prohibition affects restrictions on the number of natural

persons employed in a given service sector or by a service supplier. Measures covered by

this provision may read: a) full-time teachers employed by private education institutions may

be limited or b) beyond x employees, employment in gambling casinos is subject to an

economic needs test.

The scope of the prohibition is, however, restricted to those measures that limit the number of

natural persons necessary for, or directly related to, the supply of a service. The text of the

provision suggests that a restriction on the number of natural persons that does not directly

relate to the provision of the service would not be covered by lit. d. This relationship,

however, could be assessed only on a case-by-case basis.

2. Forms of Origin-9eutral Quantitative Restrictions

The first four subparagraphs of Art. XVI:2 contain quantitative limitations, be they origin-

neutral or not. These limitations may take several forms. Quotas and economic needs tests

outsourcing of services, except where outsourcing itself (through mode 1) has been expressely committed. See

on this, Mattoo & Wunsch, 14. 68 Ibid.

69 Ibid., 15.

70 MTN.GNS/W/164, para. 17; S/L/92, para. 25.

71 Lapid, JWT 40 (2006), 341, 355.

72 However, measures requiring the employment of nationals, or limitations on the employment of

foreigners could eventually be challenged as a national treatment violation.

12

are common forms that the limitations set out in Art. XVI:2 lit. a-d may take. In addition,

under Art. XVI:2 lit. a, limitations may take the form of monopolies or exclusive service

suppliers. The Appellate Body stated that these limitations impart meaning to the phrase in

the form of that appears in lit. a-d, and not the other way round.73

Two elements bear mention: first, a plain reading of Art. XVI:2 lit. a to d shows that the

forms of limitations identified therein comprise an exhaustive list. The Panel in US

Gambling dismissed Antiguas argument that the measures listed under Art. XVI:2 lit. a, i.e.

numerical quotas, monopolies, exclusive service suppliers or requirements of an economic

needs test, are part of an indicative list of measures that can limit the number of service

suppliers because of the use of the word whether. The Panel suggested that this word alone

cannot be construed as automatically suggesting an illustrative list of the forms that

quantitative restrictions under lit. a can take. 74 Instead, the Panel found that Art. XVI:2 lit. a

embodies an exhaustive list of forms of such restrictions. Other forms of quantitative

restrictions not expressly listed under Art. XVI:2 lit. a-d fall outside the scope of the provision

and need not to be scheduled. Second, in the view of the WTO adjudicating bodies, the word

form appears to have a broad meaning.75 The Appellate Body considered that the phrase

in the form of should not be construed as prescribing a rigid mechanical formula, nor

could it be read to imply a single form or be constrained in a formulaic manner.76 Notably

this latter element seems to have been the yardstick that led the Appellate Body to its

conclusions with regard to Art. XVI:2 lit. a and c.77 In this regard, however, the Appellate

Body issued a caution by noting that this is not to say that the words in the form of should

be ignored or replaced by the words that have the effect of.78

Art. XVI:2 lit. a, b and d indicate that limitations may take the form of numerical quotas. It

is only under Art. XVI:2 lit. c that the adjective numerical is not used with respect to

quotas, but, again, a quota will typically be numerical. In the latter case, it may be argued that

the phrase in the form of quotas should be read together with the phrase that precedes it,

namely limitations [] expressed in terms of designated numerical units to clarify the

scope of a limitation on the quantity of service output.

In US Gambling, the Appellate Body, when interpreting Art. XVI:2 lit. a, submitted that a

numerical quota equates to a quantitative limit that is explicitly framed in quantitative or

numerical terms or, alternatively, has the characteristics of a number, even if numbers are

not explicitly used.79 Therefore, in the Appellate Bodys view, a limitation that would limit

the number of potential service suppliers to zero does take the form of a numerical

quota.80 As Art. XVI covers both discriminatory and origin-neutral measures, since it is not

addressed just to foreign service suppliers, the fact that the imposed zero quota does not

discriminate between domestic and foreign service suppliers becomes irrelevant. This

interpretation of quotas would also apply mutatis mutandis for Art. XVI:2 lit. b, c and d.

Limitations under Art. XVI:2 lit. a may also take the form of monopolies. A monopoly

supplier under GATS is broadly defined to include any person, public or private, which in

the relevant market of the territory of a Member is authorized or established formally or in

effect by that Member as the sole supplier of that service.81 A person, in turn, can be either


74 US Gambling, WT/DS285/R, paras 6.322-6.325, 6.341.


76 Ibid., paras 231, 247. See also above, para. 0.

77 Delimatsis, JWT 40 (2006), 1059, 1066.

78 See US Gambling, WT/DS285/AB/R, para. 232.


80 Ibid.; also US Gambling, WT/DS285/R, para. 6.338.

81 Art. XXVIII lit. h, emphasis added. Also US Gambling, WT/DS285/AB/R, para. 228.

13

natural or juridical.82

A third type of limitation under lit. a can take the form of exclusive

service suppliers. Art. VIII:5, entitled Monopolies and Exclusive Service Suppliers,83

suggests that such suppliers exist when a Member formally or in effect, (a) authorizes or

establishes a small number of service suppliers and (b) substantially prevents competition

among those suppliers in its territory.84 The Appellate Body concluded from these two

definitions that, as regards limitations on the number of service suppliers in the form of

monopolies or exclusive service suppliers, they encompass limitations that are in form or in

effect monopolies or exclusive service suppliers.85

An economic needs test86 refers to a mechanism controlled by a Member or an entity with

delegated power (e.g. a professional association) that allows them to decide whether the entry

into the market of new (domestic or foreign) service suppliers is required on economic

grounds.87 Hence, economic needs tests typically have the effect of restricting market access,

based on an assessment of the needs of the domestic market.88 While such mechanisms

may be established due to legitimate policy considerations, such as prudential policies, they

have often been criticized because of their opaque and discretionary nature.89 Economic needs

tests do not have a standard format, but their common denominator is that the needs of the

domestic economy or the relevant service industry will be taken into account before granting

market access to a new supplier. In US Gambling, this was a further element in the

Appellate Bodys attempt to substantiate its argument that Art. XVI is fairly broad regarding

the form that limitations should have to come within the ambit of this provision.90

In US Gambling, both the Panel and the Appellate Body dealt with the question whether

Art. XVI:2 lit. c covers two or three forms of limitations. For the respondent, the United

States, this provision included two limitations and, therefore, quotas were to be expressed

only in terms of designated numerical units. The Panel ultimately found that this provision

suggests three limitations, namely limitations in the form of: (1.) designated numerical

units, (2.) quotas; and (3.) the requirement of an economic needs test.91 On the basis of this

conclusion, the Panel found that a zero quota was a limitation in the form of quotas falling

within Art. XVI:2 lit. c.92 On appeal, the Appellate Body implicitly dismissed this

interpretation. Indeed, as noted earlier,93 a textual and contextual interpretation can only lead

to the conclusion that lit. c identifies two types of limitations. Even under this interpretation,

however, the thrust is not on the form of the limitations, but on the fact that they limit

quantitatively the service operations or the quantity of service output. An interpretation that

would not be constrained in a formulaic manner would include a measure that results in a

zero quota.

82 Art. XXVIII lit. j-n.

83 Rechsteiner & Bigdeli, Article VIII GATS, paras ???

84 Emphasis added.


86 Economic needs tests should not be confounded with necessity tests like the one set up in Art. VI:4

GATS. Measures in the form of of ENTs are quantitative and thus are based on criteria the fulfilment of which is

beyond the control of the service supplier affected. See S/CSS/W/118, para. 6. 87 Goode, 123.

88 OECD, Working Party of the Trade Committee, Assessing Barriers to Trade in Services, The

Scheduling of Economic Needs Tests in the GATS, An Overview, TD/TC/WP(2000)11/FINAL, 20 September

2000. 89 See Low & Mattoo, in: Sauv & Stern (eds), 449, 456. Also Council for Trade in Services, Special

Session, Economic Needs Tests, Note by the Secretariat, S/CSS/W/118, 30 November 2001, paras 11, 12, 14,

17. 90 US Gambling, WT/DS285/AB/R, paras 231-232.


92 Ibid., para. 6.355.

93 See above, para. 0.

14

To sum up, it is the quantitative nature of a measure that leads to its characterization as a

market access limitation within the meaning of Art. XVI. In this respect, it is worth noting

that the Appellate Body did not feel compelled to decide whether a complete prohibition on

the cross-border supply of gambling and betting services is a numerical quota, a monopoly,

etc. under Art. XVI:2 lit. a, or a designated numerical unit in the form of a quota or the

requirement of an economic needs test under Art. XVI:2 lit. c. On the contrary, the Appellate

Body appeared to terminate its legal analysis when finding that the measures at issue were

measures of a quantitative nature limiting to zero the number of service suppliers that could

deliver their gambling and betting services across borders or the service operations and the

output relating to such services. Indeed, it is surprising that the Appellate Body did not

classify the measures at issue as numerical quotas under lit. a in an explicit manner, but

instead excluded the adoption of any rigid mechanical formulas. This was made clearer

notably in the Art. XVI:2 lit. c analysis, where the form of the limitations remained unclear.94

3. Limitations on the Forms of Establishment (Art. XVI:2 lit. e)

Art. XVI:2 lit. e prohibits measures that limit the forms of establishment of the service

supplier by outlawing measures that restrict the type of legal entity through which a service

supplier may supply a service, or measures that require the establishment of a joint venture.

Art. XVI:2 lit. e significantly differs from the rest of the measures covered by Art. XVI:2, as

it does not concern measures of a quantitative nature. Restrictions on the type of legal entity

are qualitative requirements imposed on the service supplier. In the absence of lit. e, these

restrictions would have been covered either by Art. XVII if they were discriminatory or by

Art. VI if they were non-discriminatory.

The provision contains two distinct albeit related prohibitions that apply to different

situations. On the one hand, the ban on measures that limit certain types of legal entity

applies equally to modes 1, 2 and 3, and covers both discriminatory and non-discriminatory

measures. On the other hand, the ban on the requirement of establishing joint ventures as a

means to provide services applies exclusively to discriminatory measures affecting

commercial presence.

a) Limitations on the Types of Legal Entity

When a Member undertakes commitments with [in] regard to Art. XVI:2 lit. e, it may not

require that the service be supplied by only certain types of legal entities. All forms of legal

establishment are to be allowed to supply services, independently of their incorporated or

non-incorporated nature, and whether or not of limited liability.

Unlike for measures requiring the establishment of joint ventures, this requirement concerns

also services provided through cross-border supply, consumption abroad, or the establishment

of a commercial presence. As it concerns services supplied by a legal entity, however, lit. e

does not have any bearing on services supplied by means of mode 4.

Restrictions on the type of legal entity abound, for instance, with regard to professional

services, which under some WTO Members internal legislation can only be provided by

natural persons or organizations through non-limited liability structures. On the other hand,

some banking and financial services can only be provided by limited liability corporations.

Where a Member wishes to maintain these sorts of restrictions in scheduled sectors, it should

inscribe them in all the relevant modes, particularly modes 1 and 3.

The ban on legal entity requirements affects foreign and domestic service suppliers alike in a

94 Also Delimatsis, JWT 40 (2006), 1059, 1068.

15

non-discriminatory fashion. For this reason, the failure of a Member to inscribe measures

requiring only certain types of legal entities such as those described above would lead to

an obligation on that Member to modify its regulatory framework in order to allow any type

of legal establishment to provide services.95

In addition to the non-discriminatory measures outlined above, the prohibition on limitations

on the type of legal entity also prohibits measures that limit the means of establishment of

foreign services providers when they wish to provide services through commercial presence.

The Scheduling Guidelines provide three examples of measures prohibited by Art. XVI:2 lit.

e that relate exclusively to foreign services, namely: a) commercial presence excludes

representative offices; b) foreign companies required to establish subsidiaries; and c) in sector

x, commercial presence must take the form of a partnership.96 This obligation, complemented

by the prohibition on requiring the establishment of joint ventures, ensures that foreign

services suppliers are not restricted in their choice of the form of establishment.

b) Prohibition on Requiring Joint Ventures

Art. XVI:2 lit. e also outlaws measures that require the formation of joint ventures in

order to provide services. Since joint venture requirements are a limitation in the form of

establishment of foreign companies,97 this provision applies only to measures of a

discriminatory nature. In addition, by definition, this provision only affects measures with

regard to services supplied through commercial presence.

While joint ventures do not necessarily entail one specific legal form, this form of

establishment involves an agreement between two or more enterprises engaged in one

defined project that the group intends to carry out, which will be conducted jointly, and for

which the partners will share profits and losses.98 Establishment through joint ventures may

be a valuable option for foreign investors in services since it allows them to benefit from the

domestic partners experience in the local market. On the other hand, joint ventures may also

be preferred by governmental authorities to foster the transfer of technology and know-how

from international enterprises to domestic companies. For this reason, a great number of

joint ventures requirements can be found in the Schedules of several WTO Members, such

as China. However joint venture requirements can also be used to coerce foreign service

suppliers into alliances with inefficient rent-seeking domestic companies.

With the prohibition on joint venture requirements, plus the prohibition on WTO Members to

limit service suppliers in their ability to establish themselves through any type of legal entity

(representative offices, subsidiaries, or branches), Art. XVI ensures that foreign investors in

services are not restricted in their choice of the entry mode in order to supply services

through commercial presence, provided that commitments have been undertaken in that

regard.

4. Limitations on Foreign Equity Participation (Art. XVI:2 lit. f)

Absent any limitations to the contrary, Art. XVI:2 lit. f prohibits measures that limit

95 While this reading stems from the text of the provision and is confirmed by the entries in the Schedules,

it may not necessarily be the understanding of all WTO Members. In that regard, it is likely that the coming

FTAs promoted by the European Union will feature a provision inspired by Art. XVI, but whose lit. e has been

re-drafted in order to exclude non-discriminatory measures from its scope. 96 S/L/92, para. 12.

97 It would theoretically be possible to envisage a measure of this nature that applies equally to both

domestic and foreign service suppliers. However, such a scenario would rarely be found in reality, since there

would arguably be no raison d'tre for such a requirement for local service suppliers. 98 Garner (ed.).

16

foreign equity participation. Like the restriction of joint venture requirements, this provision

applies by definition only to discriminatory measures with regard to services supplied

through commercial presence. Indeed, joint venture requirements are commonly

accompanied by foreign equity limitations restricting foreign participation to less than 50%.

The measures covered by Art. XVI:2 lit. f are those that impose maximum percentage limits

on foreign participation. The 2001 Scheduling Guidelines provide as an example an entry that

reads: foreign equity ceiling of x percent for a particular form of commercial presence.99

Measures that instead require that foreign investors acquire a certain minimum amount of

equity to participate in the company are not covered by Art. XVI:2 lit. f, and do not need to be

scheduled in the market access column.100

The prohibition equally concerns measures that limit individual or aggregate foreign

investment. In that sense, Art. XVI:2 lit. f outlaws a) measures that set a limit of X% equity

participation on each individual foreign shareholder albeit that a fully foreign-owned

company would be allowed if ownership were distributed in different foreign investors; and

b) measures that set a maximum ceiling on foreign participation, for instance, the maximum

amount of money that can be invested by law, regardless of how that participation is

distributed among foreigners.

Restrictions Below 50% of Foreign Equity Participation

Art. XVI:1 stipulates that the measures covered by paragraph 2 are those with regard to the

treatment of service supplier of any other Member. In the case of a service provided

through mode 3, this entails, by means of the definitions set out in Art. XXVIII, that a

commercial presence is to be owned or controlled by persons of another WTO Member.101

In the terms of Art. XXVIII lit. n, a juridical person is owned by persons of a Member if

more than 50 per cent of the equity interest is owned by persons of that Member, and is

controlled by persons of a Member if such persons have the power to name a majority of its

directors or otherwise legally direct its actions. In other words, a services company is a

service supplier of any other Member only when it is owned or controlled by foreigners;

where foreign participation does not reach that threshold, the company is considered a

domestic service supplier, falling outside the scope of Art. XVI. From this perspective,

limitations that fall below the threshold sufficient to acquire ownership or control are not

covered by Art. XVI:2 lit. f, and hence need not be scheduled, since they do not affect

service suppliers of any other Member, as required by Art. XVI:1. This means that

measures that restrict foreign participation to less than 50% and/or do not allow for foreign

control are not affected by the prohibition on imposing foreign equity restrictions set out in

Art. XVI:2 lit. f and may be introduced or maintained by Members regardless of their Art.

XVI commitments.102

On the other hand, however, it is notable that Art. XVI:2 lit. f is the only GATS provision that

refers to foreign investment, rather than commercial presence or, more broadly, service

supplier. The concept of foreign investment is defined or otherwise utilized nowhere else

99 S/L/92, para. 12.

100 China, for instance, requires foreign investors to acquire a minimum of 25% of the companys equity

share. If applied only to foreign investors that requirement would be covered by the national treatment

obligation. 101

See Art. XXVIII lit. d and m. 102

However, a foreign investor may acquire control, i.e. the power to name a majority of its directors or

otherwise legally direct its actions, over the commercial presence by holding less than 50% of its equity shares,

if the remaining shares are widely spread in a number of shareholders, or the shareholder own mulitple voting

shares. In this case, a measure that limits foreign equity to, for instance, 40% may still fall within Art. XVI:2 lit.

f if the foreign investor is still able legally to direct the actions of the company.

17

in the GATS, which may arguably expand the scope of this provision in a unique manner.

Indeed, a reference to commercial presence or service supplier of another Member would

have made it clear that Art. XVI:2 lit. f is limited to service suppliers that are owned or

controlled by foreigners, as explained above. Instead, the broad reference to foreign

investment may suggest that Art. XVI:2 lit. f is not limited to commercial presence in the

terms of Art. XXVIII, but is intended to cover all measures that limit the individual or total

value of foreign investment, including those cases where the foreign participation does not

suffice to establish a commercial presence that is, it is insufficient for the acquisition of

ownership or control over the company. In other words, under this broad reading of the term

foreign investment in Art. XVI:2 lit. f, all foreign equity limitations would be covered by

Art. XVI and need to be scheduled.103

D. The Relationship Between Art. XVI:1 and Art. XVI:2

The US Gambling Panel suggested that Art. XVI:2 complements Art. XVI:1 in that it

exhausts the types of market access restrictions that Art. XVI:1 outlaws.104

The relationship,

however, between Art. XVI:1 and Art. XVI:2 is not so straightforward. The complexity stems

from the textual differences between Art. XVI:1 and Art. XVI:2. On the one hand, Art. XVI:1

refers to the treatment that one Member grants to services suppliers of any other Member.

A textual reading of paragraph 1 suggests that the scope of Art. XVI deals exclusively with

measures of a discriminatory nature. While it is clear that there are a number of measures

that belong exclusively to the ambit of either Art. XVI or XVII, Art. XX:2 partially supports

the interpretation explained above insofar as it recognizes the existence of measures that can

be simultaneously inconsistent with both the market access and national treatment

obligations.

On the other hand, Art. XVI:2 prohibits a series of quantitative limitations that affect

nationals and foreigners alike. In this sense, a reading exclusively based on paragraph 2

would suggest that the scope of Art. XVI comprises only non-discriminatory quantitative

restrictions (with the exception of the situations covered by Art. XVI:2 lit. f and the reference

to joint ventures in Art. XVI:2 lit. e).

Finally, the principle of effectiveness (effet utile) requires the WTO judiciary to give

meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading

that would result in reducing whole clauses or paragraphs of a treaty to redundancy or

inutility.105

The ostensibly conflicting meanings of Arts. XVI:1 and XVI:2 must be

overcome by finding a harmonious interpretation that gives meaning and effect to all the

terms of Art. XVI.

It has been noted that Art. XVI:1 entails a general obligation to provide to foreign service

suppliers the treatment specified in the Schedules. Thus, Art. XVI:1 does not enshrine a self-

standing obligation, but constitutes an introduction to the limitations described in Art.

XVI:2. Art. XVI:1 influences Art. XVI:2 by noting that the listed measures have to relate to a

service supplier of another Member in order to be covered by the GATS. This is also

confirmed by the reference to the Schedules and the modes of supply.

The language of Art. XVI:1, however, does not specifically require a comparison between

103

In this scenario the question remains, however, how a violation of a partial commitment to allow 50%-

or less of foreign equity would be considered in WTO dispute settlement procedures, particularly with regard to

retaliatory measures. See on this, Molinuevo, 27. 104

US Gambling, WT/DS285/R, para. 6.298. 105

Appellate Body Report, US Gasoline, WT/DS2/AB/R, 23.

18

foreign and domestic service suppliers of the type found in the national treatment obligation.

Rather, the reference to foreigners is made so as to delimit the scope of Art. XVI. That is,

Art. XVI:1 does not necessarily require discriminatory treatment towards foreigners; it

simply requires that the measure at issue concern the treatment of foreign suppliers. Whether

it negatively affects foreigners more than, or the same as, nationals is not relevant under these

terms; the key element is that foreign service suppliers are reached by the measures at issue.

Discriminatory measures will naturally fall into this category. But non-discriminatory

measures that affect the treatment of foreign service suppliers should also comply with this

requirement set out in paragraph 1.

Art. XVI:2 itemizes the measures prohibited under Art. XVI and broadly covers quantitative

measures, without any specific reference to foreigners or nationals. However, when these

quantitative measures are read under the lens of Art. XVI:1, the result is that quantitative

restrictions are outlawed insofar as foreign service suppliers are concerned. Therefore,

quantitative discriminatory measures that affect exclusively foreign service suppliers fall

within the scope of the provision. Furthermore, non-discriminatory measures that affect

domestic and foreign service suppliers equally are also covered, to the extent that they affect

foreign service suppliers.

A reading of the broad terms of Art. XVI:2 in isolation would suggest that quantitative

measures are reached by the scope of the prohibition, regardless of their impact or lack

thereof on foreigners. Nonetheless, when Art. XVI:2 is read under the optic of Art. XVI:1,

which requires that the measures concern foreign service suppliers, the result is that measures

that apply exclusively to nationals are out of the reach of Art. XVI.

In practice, however, the scope of Art. XVI remains significantly broad. Indeed, where a

Member undertook a full commitment under market access it is compelled to eliminate all

Art. XVI restrictions at least with regard to foreign service suppliers. Any restriction, be it

applicable exclusively to foreigners or to both foreigners and nationals, would be

inconsistent with the full commitment. On the other hand, maintaining discriminatory

measures that set restrictions exclusively on nationals would be allowed under GATS. In

effect, a Member would retain the ability to apply any of the measures of Art. XVI:2 only

when it had inscribed unbound, or an entry equal to only domestic service suppliers may

supply services. This latter entry, which at first glance would suggest that the country has

undertaken a partial commitment, is equal in effect to unbound, since the Member at hand

does not undertake any commitments with respect to foreigners.106

Under this constellation,

measures that concern only domestic service suppliers, as explained above, can be applied at

any time.107

In sum, the relationship between Arts. XVI:1 and XVI:2 clarifies that the seemingly broad

106

On the other hand, it could be argued that where a Member autonomously admits a certain number of

foreign suppliers to provide services in its market, that Member may not maintain any Art. XVI limitations with

regard to them. 107

On the relationship between Art. XVI:1 and Art. XVI:2, Mavroidis has advanced a slightly different

interpretation from the one suggested in this study. See Mavroidis, World Trade Rev. 6 (2007), 1, 9. While it is

agreed that the reference to service suppliers of any other Member in Art. XVI:1 sets a limit to the scope of

Art. XVI:2, the conclusion is not drawn here as Mavroidis does that Art. XVI:2 exclusively deals with

discriminatory measures. Mavroidis interpretation restricts the scope of Art. XVI to measures listed in our

category a), since he inaccurately equates measures that apply to foreigners with measures of a discrminatory

nature, failing to note that non-discriminatory measures category b) can, also, affect foreigners in a manner

inconsistent with paragraph 1. As explained above, the reading favoured here allows one to conclude that non-

discriminatory quantitative measures category b) are also covered by the GATS market access obligation.

We agree with Mavroidis, however, that measures that exclusively affect domestic service suppliers category c)

fall outside the scope of Art. XVI.

19

scope of Art. XVI:2, when read together with Art. XVI:1, is narrowed in such a manner that

quantitative restrictions that do not affect foreign service suppliers fall outside the scope of

the market access obligation.

E. The Relationship of Art. XVI with Other GATS Provisions

To the extent that the measures covered by Art. XVI can be of both a non-discriminatory and

a discriminatory nature, the most obvious interplay of two GATS provisions is between Arts

XVI and XVII. More specifically, any measures of the types mentioned in Art. XVI:2 lit. a-f

in their discriminatory form fall within the scope of both Arts XVI and XVII. Art. XX:2

provides that all quantitative limitations that come within the purview of Art. XVI:2 should be

scheduled under the market access column even where they constitute an Art. XVII limitation

as well.108

Consequently, according to this provision, a Member should inscribe in the

national treatment column discriminatory measures that do not fall within Art. XVI:2 lit. a-f.

This scheduling convention provided for in Art. XX:2, however, offers only limited

clarification of situations where a Member undertakes commitments under one of the columns

but not the other. The issue is less than clear and has been discussed in the current

negotiations, but also in academic literature.109

The relationship between Arts. XVI and VI is not defined in the GATS.110

The US

Gambling Panel, in a clear obiter dictum, examined this relationship and found that Arts

VI:4 and VI:5 on the one hand and XVI on the other hand are mutually exclusive.111

However, it is unclear whether this is a correct interpretation, as this mutual exclusivity does

not seem to have any foundation in the negotiating history established in the meetings of the

Working Party on Domestic Regulation. The Appellate Body avoided commenting on the

issue. Academic discussions have identified the advantages and disadvantages of both

approaches.112

F. Outlook

As GATS is still in its infancy, there are several issues that remain open and may raise

problems in the near future. The clarification of the relationship between Arts XVI and XVII

can be identified as an issue needing immediate attention. Possible solutions have been

proposed, but Members are reluctant to advance any of them. Nevertheless, Members would

be well advised to reach an agreement regarding the interplay of these two provisions, for

instance through the adoption of a Decision by the CTS, sooner rather than later. Otherwise, it

is possible that, as a result of a dispute, the WTO adjudicating bodies will comment on the

issue in a way that several Members would not necessarily agree to. The implications of such

a decision would be even more significant if it led one to construe a given Schedule as

implying a higher level of liberalization than the scheduling Member had actually intended.

Another important issue under Art. XVI is whether prohibitions on consumers should be

covered by this provision.113

In accordance with Art. XXVIII lit. i, any person that receives or

108

See also Molinuevo, Article XX GATS, paras 34-35. 109

Ibid., paras 34-42; Engelke & Krajewski, Article XVII GATS, paras??? ; See also Delimatsis, JWT 40

(2006), 1059, 1072; Mattoo, JWT 31 (1997) 1, 107, 113; Pauwelyn, World Trade Rev. 4 (2005), 131, 148. 110

Krajewski, Article VI GATS, paras 70 et seq. 111

US Gambling, WT/DS285/R, para. 6.305, emphasis added. 112

See Pauwelyn, World Trade Rev. 4 (2005), 131, 152; Delimatsis, JWT 40 (2006), 1059, 1069;

Krajewski, Art. VI GATS, paras 73-74. 113

Also Krajewski, LIEI, 32 (2005), 417, 436.

20

uses a service is considered to be a service consumer. In the US Gambling dispute, the

Panel, when interpreting Art. XVI:2 lit. a, submitted that Art. XVI only addresses limitations

to suppliers, that is, any person that supplies a service. In contrast, limitations to consumers

fall outside the scope of this provision. Therefore, the Panel, after an examination of the scope

of four of the United States state laws at issue, rejected Antiguas view that prohibitions on

consumption are covered by Art. XVI:2 lit. a and/or lit. c.114

However, a similar interpretation is not so straightforward when it comes to Art. XVI:2 lit. b

and c.115

In both cases, arguably, limitations on consumers could also fall within the latter

provisions. The GATS covers measures affecting trade in services. By the same token, Art.

XXVIII lit. c defines such measures very broadly to encompass any measures in respect of

the purchase, payment or use of a service. The main argument justifying an interpretation

covering prohibitions on consumption is that a Member that undertook a full commitment

would easily evade its commitments by imposing a prohibition on consumers rather than on

suppliers.

From another perspective, however, prohibitions on consumption would entail a

questionable interpretative expansion of the terms of Art. XVI, which, as noted by the

Appellate Body, does not cover all measures that have the effect of limiting the number of

service suppliers or the total number of service operations, but only those that are

quantitative in nature.116

The main travaux prparatoires of the GATS, that is, the

Scheduling Guidelines, bear on the issue. Para. 19 lit. b of the Scheduling of Initial

Commitments in Trade in Services117

provides that the GATS obligations relate to the

treatment of services and service suppliers. The only case in which they also concern

consumers is when services or service suppliers of other Members are also affected.118

Nevertheless, this statement can be construed as supporting both approaches described above,

since, in the case of a total prohibition on consumers, suppliers of other Members will, more

often than not, be affected as well. In US Gambling, the Appellate Body did not tackle the

issue, since it had previously found that Antigua had not established a prima facie case with

regard to the United States state laws.

114

US Gambling, WT/DS285/R, paras 6.382-6.383 (Colorado), 6.397-6.398 (Minnesota), 6.401-6.402

(New Jersey) and 6.405-6.406 (New York). 115

See the EC arguments in US Gambling, WT/DS285/AB/R, para. 101. 116

See US Gambling, WT/DS285/AB/R, paras 225 and 232. 117

MTN.GNS/W/164, 9. 118

Also S/L/92, para. 30.

21

BIBLIOGRAPHY

A. Mattoo, National Treatment in the GATS, Corner-Stone or Pandoras Box?, JWT 31

(1997) 1, 107-135; D. E. Siegel, Legal Aspects of the IMF/WTO Relationship: The Funds

Articles of Agreement and the WTO Agreements, AJIL 96 (2002), 561-599; A. Mattoo & S.

Wunsch, Pre-Empting Protectionism in Services: The WTO and Outsourcing, World Bank

Policy Research Working Paper No. 3237, March 2004; M. Krajewski, Playing by the Rules

of the Game? Specific Commitments after US Gambling and Betting and the Current GATS

Negotiations, LIEI 32 (2005), 417-447; J. Pauwelyn, Rien Ne Va Plus? Distinguishing

Domestic Regulation from Market Access in GATT and GATS, World Trade Rev. 4 (2005),

131-170; P. Delimatsis, Dont Gamble with GATS The Interaction Between Articles VI,

XVI, XVII and XVIII GATS in the Light of the US Gambling Case, JWT 40 (2006), 1059-

1080; K. Lapid, Outsourcing and Offshoring Under the General Agreement on Trade in

Services, JWT 40 (2006), 341-364; M. Molinuevo, Can Foreign Investors in Services Benefit

from WTO Dispute Settlement? Legal Standing and Remedies in WTO and International

Arbitration, NCCR Trade Regulation Working Paper No. 2006/17, January 2007; F. Ortino,

Treaty Interpretation and the WTO Appellate Body Report in US Gambling: A Critique,

JIEL 9 (2006), 117-148; S. Wunsch-Vincent, The Internet, Cross-Border Trade in Services,

and the GATS: Lessons from US Gambling, World Trade Rev. 5 (2006), 319-355; P.

Delimatsis, International Trade in Services and Domestic Regulations Necessity,

Transparency, and Regulatory Diversity, 2007; C. Fink & M. Molinuevo, East Asian Free

Trade Agreements in Services: Roaring Tigers or Timid Pandas?, East Asia and Pacific

Region Report No. 40175, The World Bank, , 2007;

P. C. Mavroidis, Highway XVI Re-Visited: the Road from Non-Discrimination to Market

Access in GATS, World Trade Rev. 6 (2007), 1-23.

CASE LAW

Appellate Body Report, US Gasoline, WT/DS2/AB/R; Appellate Body Report, EC

Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R; Appellate Body

Report, Canada Dairy, WT/DS103/AB/R, WT/DS113/AB/R; Panel Report, India Autos,

WT/DS146/R, WT/DS175/R; Panel Report, Mexico Telecoms, WT/DS204/R; Panel Report,

US Gambling, WT/DS285/R; Appellate Body Report, US Gambling, WT/DS285/AB/R.

DOCUMENTS

Group of Negotiations on Services, Uruguay Round, Note on the Meeting of 27 May to 6

June 1991, MTN.GNS/42, 24 June 1991; Group of Negotiations on Services, Uruguay Round,

Services Sectoral Classification List, Note by the Secretariat, MTN.GNS/W/120, 10 July

1991; Group of Negotiations on Services, Uruguay Round, Note on the Meeting of 24 - 28

June 1991, MTN.GNS/43, 15 July 1991; Group of Negotiations on Services, Uruguay Round,

Note on the Meeting of 10 - 25 July 1991, MTN.GNS/44, 28 August 1991; Group of

Negotiations on Services, Uruguay Round, Scheduling of Initial Commitments in Trade in

22

Services, Explanatory Note, MTN.GNS/W/164, 3 September 1993.

CROSS REFERENCES

Art. 28 ECT; Art. 1207 NAFTA; Art. IV MERCOSUR Montevideo Protocol.

Documents

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