The Ongoing GATS (Doha) Negotiations
There currently are two "tracks" of GATS activities of which U.S. lawyers should be aware. "Track 1" is the current round of negotiations to further liberalize trade in legal services. Article XIX of the GATS requires WTO Member States to engage in ongoing negotiations to further liberalize trade in services.
• GATS Agreement: GATS Article XIX(1) states:
"In pursuance of the objectives of this Agreement, Members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization. Such negotiations shall be directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. This process shall take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations."
Current Doha Round Negotiations
Most of the GATS negotiations have occurred through a bi-lateral request-offer process. In December 2005, however, in the Hong Kong Ministerial Declaration, WTO Members agreed on a framework and timetable for filing plurilateral requests.
Offers by Other WTO Member States [in which a WTO Member indicates how it might alter its Schedule of Specific Commitments if satisfied with the movement by other WTO Members]
- Pre-Hong Kong Report on Negotiations by the Chair of the WTO Council for Trade in Services, Nov. 2005, TN/S/23
- Summary of Derestricted Legal Services Offers Prepared by Minter Ellison
- Doha Round Revised Offers - Listed by Country (Target filing date May 2005)
- Doha Round Initial Offers - Listed by Country (Target filing date March 2003)
- CSI Paper Analyzing Legal Services Proposals (Prepared in 2000)
Requests by WTO Member States [in which a WTO Member asks another WTO Member to make changes in its Schedule of Specific Commitments. Requests are generally considered confidential government-to-government documents and not publicly available. See section below on U.S. Related Doha Documents for requests directed to the U.S.]
- 2-06 WTO Friends of Legal Services Collective [Plurilateral] Requests (Feb. 28, 2006)
- Information on plurilateral requests in other sectors (for comparison purposes)
U.S.-Related Doha Round Requests and Offers
The U.S. Offer
- The "Legal Services" Portion of the U.S. "Offer" (May 31, 2005)
As provided in the Doha Ministerial Declaration, the U.S. submitted its offer on legal services on May 31, 2005. The U.S. proposed changes in the legal services portion of its Schedule of Specific Commitments.
- The "Horizontal Commitments" Portion of the U.S. "Offer" (May 31, 2005)
"Horizontal commitments" apply to all sectors, including legal services.
- Prior U.S. Offers Regarding Legal Services
- Nov. 2007 U.S.Communication about the Proposed Services Text
- Jan. 2008 U.S. Communication about the Proposed Services Text
Legal Services Requests from the U.S. to Other WTO Members
- 2-06 WTO Friends of Legal Services Collective [Plurilateral] Requests (the U.S. joined in these collective requests and also received this request from other countries)
- An Unclassified Summary of the Legal Services "Requests" Filed by the U.S. [Filed before the U.S. joined in the February 2006 Collective/Plurilateral Requests] (June 30, 2002)
The U.S. "requests" to other countries concerning legal services are considered a confidential government-to-government document. The U.S. Trade Representative has prepared the attached unclassified summary. The U.S. "request" refers to a "reference paper." If WTO Member States agreed with the provisions of such a "reference paper," they could indicate this in the "Additional Commitments" column of their Schedules of Specific Commitments.
Legal Services Requests Directed to the U.S. by Other WTO Members
- 2-06 WTO Friends of Legal Services Collective [Plurilateral] Requests (the U.S. joined in these collective requests and also received this request from other countries) including Model Schedule Legal Services, Option A and Model Schedule Legal Services, Option B.
- Public Citizen's Posting of the Leaked Summary of the Requests to the U.S. (General requests begin on p. 1. Requests regarding business services, which includes legal services, are listed on pp. 3-9; state-specific requests are listed alphabetically and begin on p. 35)
- European Union's "Initial Request" to U.S.
Office of the U.S. Trade Representative Consultation Process
ABA Policies Relevant to the GATS Legal Services Negotiations
- ABA February 2002 Resolution Regarding Outbound U.S. Lawyers, with Recommendations to the USTR Regarding the U.S. "Requests" to Other WTO Members The February 2002 ABA Resolution represents the current ABA policy with respect to the desired U.S. negotiating position concerning "outbound" U.S. lawyers. In this resolution, the ABA requested that the U.S. Trade Representative seek practice rights for "outbound" U.S. lawyers equivalent to the practice rights set forth in the ABA Model Rule Respecting [Foreign] Legal Consultants.
- ABA August 2002 Multijurisdictional Practice Recommendation Eight Regarding Inbound Foreign Legal Consultants (Relevant to the U.S. Offer)
- ABA August 2002 Resolution Regarding Temporary Practice by Foreign Lawyers Inbound to the U.S. (Relevant to the U.S. Offer) [This resolution, along with the resolution on Temporary Practice by Foreign Lawyers, reflects part of the ABA position with respect to inbound legal services by foreign lawyers. In August 2006, the ABA adopted an updated version of the Foreign Legal Consultant rule.]
- ABA August 2006 Updated Version of the ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants
- ABA August 2002 Resolution Regarding Regulation of the Practice of Law by the State Judiciary (Relevant to the U.S. Offer)
- Other ABA Resources (including the CPR Policy Implementation Committee Homepage, which has links to a chart showing the implementation status of ABA MJP Recommendations 8 and 9, links to state foreign legal consultant rules, and three charts comparing these state rules with the ABA Model FLC Rule)
- ABA Task for on International Trade in Legal Services (ITILS) (In 2003, ABA President A.P. Carlton appointed an ABA Task Force on GATS Legal Services Negotiations. This Task Force, which has been renamed the Task Force on International Trade in Legal Services, is responsible for coordinating ABA efforts regarding the GATS. It does not currently have a separate website.)
WTO and Other Documents that Provide Guidance in Making GATS Commitments
- 2010 Updated Legal Services Background Note [Council for Trade in Services, Background Note by the Secretariat: Legal Services, S/C/W/ 318] (14 June 2010)
- Elements Required for the Completion of the Services Negotiations, Note by the Chairman, Job (08)/79 (July 17, 2008)(Paragraphs 7-8 set new deadlines, which were not met).
- Hong Kong Ministerial Declaration ¶¶25-27 and Ministerial Declaration Annex C (Dec. 2005) (includes current negotiations deadlines and other agreements)
- CLASSIFICATION ISSUES: Documents Addressing the Proper Classifications of Legal Services to Use in the Negotiations, including the Feb. 2005 Joint Statement on Legal Services, TN/S/W/37, which the U.S. joined
- WTO Document S/L/92 (March 2001 - Guidelines for Scheduling Commitments in the Doha Round - also known as the "Roadmap")
- WTO Document S/L/93 (March 2001 - GUIDELINES AND PROCEDURES FOR THE NEGOTIATIONS ON TRADE IN SERVICES)
- Technical Aspects of Requests and Offers, Summary of Presentation by the WTO Secretariat, Feb. 2002
- OECD Trade Policy Working Paper No. 2, MANAGING REQUEST-OFFER NEGOTIATIONS UNDER THE GATS: THE CASE OF LEGAL SERVICES, TD/TC/WP(2003)40/FINAL (June 14, 2004) submitted to the WTO Committee on Specific Commitments as JOB(04)/77 (June 2004)
- WTO August 1, 2004 "Decision" on Doha Framework Agreement (WT/L/579) On July 31, 2004, WTO Member States reached an agreement about the terms under which they would proceed with the suspended Doha Negotiations. This Agreement is memorialized in an August 1, 2004 WTO “Decision” (WT/L/579). Section 1(e) of the Decision states that revised services “offers” should be tabled by May 2005. Annex C of this Decision addresses Track #1 and “services.” Annex C also refers to GATS Track #2 and states that “Members must intensify their efforts to conclude the negotiations on rule-making under GATS Articles VI:4... ."
- The Doha Declaration with Guidelines and [Initial, Missed] Deadlines Formation - In November 2001, WTO Member States met in Doha, Qatar and agreed to a new round of WTO negotiations; this agreement included a set of deadlines for the new round of negotiations required by the GATS. These negotiations originally were scheduled to end January 1, 2005. WTO Member States agreed to submit their initial "requests" on June 30, 2002, and their initial "offers" on March 31, 2003.
- Council for Trade in Services, Background Note by the Secretariat: Legal Services, S/C/W/ 43 (July 6, 1998) This 30-page analysis prepared by the WTO Secretariat (staff) provides extremely detailed and useful information about the GATS commitments on legal services made by WTO Member States in 1994. It is a "must read" for anyone interested in this topic.
1994 WTO Legal Services Commitments
- Legal Services Commitments of Other WTO Members During the 1994 Uruguay Round
- Legal Services Portion of 1994 U.S. Schedule of Specific Commitments
- Horizontal Commitments on the 1994 U.S. Schedule of Specific Commitments
Other Issues Related to GATS Track #1 and the Doha Market Access Negotiations
- Autonomous Liberalization
- Mode 4 Issues
- Information about Legal Services Trade Statistics and Barriers