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A Critical Review of Criteria for Domestic Regulation in GATS - With a Special Reference to the 'Necessity' Test in GATS Article VI.4 -

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2017, (20), pp.133-149
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law

LEE JIN-KYU 1

1동아대학교

Candidate

ABSTRACT

As stated in the preamble of GATS, services can be regulated by Member States to achieve public interest policy objectives. The nature and function of domestic regulatory measures depends greatly on the service sector to which they are applied and the country's policy goals to be achieved. Domestic regulations on service can be national policy tools that influence the delivery of services by service providers in a specific way, and unnecessary domestic regulations on services can be controlled against the trade. Despite such a high risk, however, GATS article VI, which is the underlying clause on domestic regulations, specially paragraph 4 providing the substantive and specific obligations on domestic regulations, have not been laid down as a clear and specific requirement. To overcome these problems and limitations, the discipline of domestic regulations need to provide foreseeability on the impact of domestic regulatory decisions and ensure that there is a clear consensus on the future outcome. First of all, governments should actively work together on areas with significant regulatory effects, as well as on cooperation needed to strengthen, improve and enforce regulations on trade in services. In particular, many developing countries should pay keen attention to regulatory improvements to remove barriers to service trade. An important element of negotiation on trade in services is creating mechanisms to promote pro-competitive domestic regulatory reform and international regulatory cooperation.

Citation status

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