Horizontal Discipline Proposals from WTO Member States (including the U.S.)

This page includes the proposals WTO Members have circulated for proposed “horizontal” disciplines, i.e. disciplines that would apply to all service sectors. The page begins by listing the only existing disciplines (for the Accountancy Sector), lists the current draft prepared by the WTO WPDR Chairman, lists sources for locating future drafts, and then lists all proposals organized by country and then all proposals organized by topic. It also lists the definitions currently proposed by the WPDR Chair and the definitions previously used by the WTO Secretariat.

Sources to Locate WPDR Disciplines Proposals:

Horizontal Discipline Proposals from WTO Member States (organized by WTO Member States)

As of May 2007, thirteen WTO Members or combinations of WTO Member States had submitted horizontal disciplines proposals. Some of these proposals addressed all of the items listed in GATS Article VI:4, whereas other proposals addressed one or more items in GATS Article VI:4. Some of these twelve proposals have been made publicly available and are on the WTO’s website, whereas other proposals have not been officially public, but are nonetheless available on the Internet. The Member States or groups of Member States that have made proposals include the following, which are listed in alphabetical order according to the first country listed in the proposal. A number of these countries have circulated multiple versions of their proposal. If that is the circumstance (which is indicated by an asterisk after the name of the WTO Member) ,then only the most recent version of the document is listed.

  1. African, Caribbean and Pacific Group:
    Communication from the ACP Group, Pro Development Principles for GATS Article VI:4 Negotiations (Revision), Job (06)/136/Rev. 1 (June 19, 2006)
  2. African Group on Domestic Regulation
    Communication by the African Group on Domestic Regulation, Room Document, (May 2, 2006)
  3. Antigua and Barbuda, Barbados, Cuba, Dominica, Dominican Republic, El Salvador, Fiji, Grenada, Guatemala, Honduras, Jamaica, Mauritius, Mongolia, Nicaragua, Paraguay, St. Kitts and Nevis, St. Vincent and the Grenadines and Trinidad and Tobago [also known as Small and Vulnerable Economies]: Trade-Related Concerns of Small, Vulnerable Economies in the Working Party on Domestic Regulation, Revision, Job(06)/66/Rev.1 (May 2, 2006)
  4. Australia; Chile; Hong Kong, China; Korea; New Zealand; and The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu: Article VI:4 Disciplines- Proposal for Draft Text,Job(06)/193 (June 19, 2006)
  5. Brazil, Colombia, Dominican Republic, Peru and the Philippines:* Elements for Draft Disciplines on Domestic Regulation, Job(06)/34 (Feb. 24, 2006) [This document does not seem to be publicly available. A February 2005 of the document is available.]
  6. Brazil and the Philippines:
    Communication From Brazil and the Philippines, (Untitled), Job(06)/133 (May 2, 2006)
  7. Chile, India, Mexico, Pakistan, Peru and Thailand:*
    Proposed Disciplines on Qualification Requirements and Procedures, Job(06)/***, (May 29, 2006)

    See also Chile; Hong Kong, China; The Separate Customs Territory Of Taiwan; Penghu, Kinmen And Matsu, Article VI:4 Disciplines – Proposal for Draft Text, Room Document, 9 June 2006
  8. China and Pakistan
    Proposed Disciplines on Domestic Regulation Under Article VI.4 of the GATS, Job(06)/158 (May 2006)
  9. European Community and Its Member States:
    Proposal for Disciplines on Licensing Procedures, S/WPDR/W/25 (10 July 2003)
  10. Japan:
    Draft Annex on Domestic Regulation, Job(03)/45/Rev.1 (May 2, 2003)

  11. Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu:
    Definitions of Qualification Requirements, Qualification Procedures, Licensing Requirements, Licensing Procedures and Technical Standards, S/WPDR/W/37 (6 October 2005)
  12. Switzerland and Mexico:
    Communication from Switzerland and Mexico, Proposal for Disciplines on Technical Standards in Services, Revision, S/WPDR/W/32/Rev.1 (28 October 2005)
  13. United States:*
    Horizontal Transparency Disciplines in Domestic Regulation, Job (06)/182, 9 June 2006 . (The U.S. previously circulated a Feb. 18, 2005 Room Document.)

The following proposals are relevant, even though they are not technically horizontal disciplines proposals related to qualification, licensing or technical standards:

  1. Communication from Australia, Development of Disciplines on Domestic Regulation for the Legal and Engineering Sectors, S/WPDR/W/34 (5 Sept. 2005)
  2. Communication from Colombia, Examples of Measures Relating to Administrative Procedures for Obtaining Visas or Entry Permits, S/WPDR/W/29 (7 July 2004)

Disciplines Mandate: Article VI:4 of the GATS Agreement contains the mandate to consider the development of disciplines. It states:

4. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Council for Trade in Services shall, through appropriate bodies it may establish, develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements are, inter alia:

(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.

Horizontal Discipline Proposals from WTO Member States (organized by GATS Article VI:4 Topic)

Listed below are WTO Members’ Horizontal Discipline Proposals, organized according to topic. Some proposals address multiple topics and are listed in more than one category. The Horizontal Disciplines proposals are listed alphabetically earlier on this page.

  1. Licensing Requirements
  2. Licensing Procedures
  3. Qualification Requirements
  4. Qualification Procedures
  5. Technical Standards
  6. Transparency
  7. Other Provisions for Developing Countries & Visas

Definitions of the Terms Used in GATS Article VI:4

GATS Article VI:4 refers to qualification requirements and procedures, licensing requirements and procedures, and technical standards. There have been several different definitions proposed for these terms. For example, in 1996, the WTO Secretariat offered proposed definitions. The April 2007 WPDR Chair’s Draft Disciplines also contains proposed disciplines. Both of these sets of definitions are reproduced below. There have been additional proposals and critiques. See, e.g., the proposal from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.

Definitions Proposed in the April 2007 WPDR Chair’s Draft Disciplines

Licensing Requirements are substantive requirements, other than qualification requirements and technical standards, with which a service supplier is required to comply in order to obtain or renew authorization to supply a service.

“Licensing procedures” are administrative or procedural rules relating to the administration of licensing requirements for the supply of a service, including those relating to submission and processing of an application for a licence [sic] or renewal thereof.

“Qualification requirements” are substantive requirements relating to the competence to supply a service that a service supplier is required to demonstrate prior to obtaining authorization to supply a service.

“Qualification procedures” are administrative or procedural rules relating to the administration of qualification requirements, including those aiming at verifying the compliance of candidates with qualification requirements as well as those relating to acquiring or supplementing such qualifications.

“Technical standards” are measures that lay down the characteristics of a service or the manner in which it is supplied. Technical standards also include the procedures relating t the enforcement of such standards

Definitions Proposed by the WTO Secretariat in 1996
[The definitions that follow are found in Working Party on Professional Services, Note by the Secretariat: The Relevance of the Disciplines of the Agreements on Technical Barriers to Trade (Tbt)and on Import Licensing Procedures to Article VI.4 of the General Agreement on Trade in Services , S/WPPS/W/9 4(Sept. 11, 1996)]:

Licensing Requirements:
[T]hese are substantive requirements, other than qualification requirements, with which a service supplier is required to comply in order to obtain formal permission to supply a service. They include measures such as residency requirements, fees, establishment requirements, registration requirements, etc.

Licensing Procedures:
[T]hese are administrative procedures relating to the submission and processing of an application for a license, covering such matters as time frame for the processing of a license, and the number of documents and the amount of information required in the application for a license.

Qualification Requirements:
[T]hese comprise substantive requirements which a professional service supplier is required to fulfil in order to obtain certification or a licence. [sic] They normally relate to matters such as education, examination requirements, practical training, experience or language requirements.

Qualification Procedures:
[T]hese are administrative or procedural rules relating to the administration of qualification requirements. They include procedure to be followed by candidates to acquire a qualification, including the administration requirements to be met. This covers inter alia where to register for education programmes, conditions to be respected to register, documents to be filed, fees, mandatory physical presence conditions, alternative ways to follow an education programme (e.g. distance learning), alternative routes to gain a qualification (e.g. through equivalence) and organizing of qualifying examination, etc.

Technical Standards:
[T]hese are requirements which may apply both to the characteristics or definition of the service itself and to the manner in which it is performed. For example, a standard may stipulate the content of an audit, which is akin to definition of the service; another standard may lay down rules of ethics or conduct to be observed by the auditor.

Table Excerpted from Nicole C. Lloyd, Proposals for the Development of Disciplines under GATS Article VI:4: An Analysis of World Trade Organization Members’ Proposals in Respect to Legal Services, © 2007 Nicole Lloyd, NicoleCLloyd@hotmail.com (This was excerpted from a paper prepared for Professor Laurel Terry’s Cross-Border Legal Practice Seminar):

Nicole Lloyd, Comparison of Members’ proposals to the
Accountancy Disciplines and the Chairman’s New Draft


Accountancy Disciplines Paragraph

Topic

Chairman’s New Draft from 2007
(Discussed in Section X)

Horizontal Disciplines Proposals in General

1

Objectives

n/a

Similar

2

General Provisions
(necessity test included)

Similar

Very different views; not similar

3

Transparency
(general public availability)

Similar

Somewhat similar

4

Transparency
(info to be made public)

Similar, Draft includes even more transparency considerations

Not similar

5

Transparency
(rationale)

Not included

Not similar

6

Transparency
(opportunity to comment)

Similar

Some are similar; some are not similar

7

Transparency
(review of decisions)

Similar

Some are similar; some are not similar

8

Licensing Requirements
(general)

Similar, but more restrictive

Similar

9

Licensing Requirements
(residency)

Nearly identical

Some are similar; some are not

10

Licensing Requirements (requirement of membership in a professional organization

Nothing included

Some are similar; some are not

11

Licensing Requirements
(use of firm name)

Nothing included

Not similar (most do not include)

12

Licensing Requirements
(insurance)

Nothing included

Not similar (most do not include)

13

Licensing Requirements
(fees reflect only administrative costs)

Similar

Similar

14

Licensing Procedures
(general, including transparency)

Similar

Somewhat similar

15

Licensing procedures
(necessity test)

VERY DIFFERENT.  Does NOT use anything close to a necessity test!

Very different views.  Some are similar; some are not similar.

16

Licensing Procedures
(application information)

Similar

Somewhat similar

17

Licensing Procedures (rejection/resubmission)

Similar

Some are similar; some are not

18

Licensing Procedures (license effective immediately)

Similar

 

**Additional disciplines proposals included

Somewhat similar

19

Qualification Requirements (equivalency)

Similar

Some are similar; some are not

20

Qualification Requirements
(scope of exams)

Somewhat similar, Draft does not state “limited to”

Some are similar; some are not

21

Qualification Requirements
(mutual recognition)

Not really included, little mention

Some are similar

22

Qualification Procedures
(reasonable time frame (6 months) for verification)

Similar

Somewhat similar; most do not give a time estimate for “reasonable time”

23

Qualification Procedures
(exam info)

Similar

Somewhat similar

24

Qualification Procedures
(no residency requirements)

Similar (but included in qualification requirements)

Some are similar; some are different

25

Technical Standards
(only to fulfill legitimate objectives)

Similar

Similar

26

Technical Standards
(use internationally recognized standards)

Similar

Most are similar


Note: Chairman’s New Draft is much longer than the Accountancy Disciplines.

Note: This contents of this webpage were prepared by Professor Laurel Terry ( LTerry@psu.edu)., based in substantial part on a seminar paper prepared by Nicole Lloyd, to whom thanks are due. ( NicoleLloyd@hotmail.com).

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