There currently are two "tracks" of GATS activities of which U.S. lawyers should be aware. "Track 2" raises the question of whether and how WTO Member States will implement Article VI(4) of the GATS, which requires the development of "any necessary disciplines."To date, WTO Members have adopted one set of disciplines. These disciplines, which apply to the accountancy sector, will take effect at the close of the current round of negotiations. WTO Members currently are deciding whether to adopt “horizontal” disciplines that would apply to all services sectors and/or any additional sector-specific disciplines
See GATS Agreement (GATS Article VI:4 contains the mandate to consider the development of disciplines. Article VI:5 addresses the situation of what will happen if disciplines were not adopted.)
For more information about how to determine the kinds of lawyer regulatory measures to which Disciplines might apply, see Laurel S. Terry, But What Will the WTO Disciplines Apply To? Distinguishing Among Market Access, National Treatment and Article VI:4 Measures When Applying the GATS to Legal Services, 2003 Symposium The Professional Lawyer 83 (2004).
Selected WTO Documents Regarding Disciplines
- 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)
- Annotated Version of the Current Draft GATS DISCIPLINES (March 14, 2010)
- March 2010 Status Report on the GATS Working Party on Domestic Regulation
- Draft Disciplines on Domestic Regulation Pursuant to GATS Article VI:4, Second Revision (Room Document, March 30, 2009)
- Revised Draft, Disciplines on Domestic Regulation Pursuant to GATS Article VI:4 (Room Document, Jan. 23, 2008)
- Draft Disciplines on Domestic Regulation Pursuant to GATS Article VI:4, Informal Note by the [WTO WPDR] Chairman (Room Document, 18 April 2007)
- Consolidated Working Paper on Disciplines by the WPDR Chairman - Job (06)/225 ( July 18, 2006)
(summarizes the existing disciplines proposals and discussions)
- Communication from the U.S.: Outline of U.S. Position on a Draft Consolidated Text in the WPDR - Job (06)/223 (July 11, 2006) (July 11, 2006) (This paper presents the U.S.’ comments on the WPDR Chair’s 2006 Consolidated Draft paper. Although this document is now moot, it may nevertheless be of interest because the U.S. reaction to the WPDR Chair’s April 2007 Draft Disciplines is not yet publicly available.)
- WTO Disciplines for the Accountancy Sector (S/L/64)
In December 1998, WTO Member States approved the Disciplines for the Accountancy Sector. WTO countries currently are considering whether to extend these "disciplines" to all service sectors, including legal services. If the U.S. legal profession believes that clarifications or additions are required, it should notify the US Trade Representative soon.
- WTO Decision Adopting the Disciplines for the Accountancy Sector (S/L/63) (This is the WTO Decision that adopted the Accountancy Disciplines and explains when they take effect.)
- March 2004 WTO Workshop on Domestic Regulation
This Workshop addressed GATS Article VI:4 and whether to extend the Accountancy Disciplines to other service sectors. This Workshop included a presentation by International Bar Association representatives regarding the suitability of applying the Accountancy Disciplines to the Legal Profession.
Legal Services-Specific Disciplines Proposal
To date, there has only been one proposal to develop disciplines that are specific to the legal services sector. This legal services proposal came from Australia. As of May 2007, it seems unlikely that WTO Members will agree to develop legal services-specific disciplines.
- Communication from Australia, Development of Disciplines on Domestic Regulation for the Legal and Engineering Sectors, S/WPDR/W/34 (5 Sept. 2005)
Horizontal Disciplines Proposals from WTO Member States (including the U.S.)
GATS Article VI:4 refers to qualification requirements and procedures, licensing requirements and procedures and technical standards. A number of WTO Members have filed proposals that address some or all of these elements. These proposals are found on the Horizontal Disciplines page, referenced above.
U.S. Proposals and Policy
- Communication from the United States, Horizontal Transparency Disciplines in Domestic Regulation, Job (06)/182, 9 June 2006 (Note: this document has not been officially released, but is available on the Internet. It supersedes a Feb. 18, 2005 Room Document circulated by the U.S.)
- Communication from the U.S.: Outline of U.S. Position on a Draft Consolidated Text in the WPDR - Job (06)/223 (July 11, 2006) (This paper presents the U.S.’ comments on the WPDR Chair’s 2006 Draft paper. Because the U.S. reaction to the April 2007 WPDR Chair’s Draft is not publicly available, this provides insight into the U.S.’ historic position.)
- See also ABA August 2006 Recommendation regarding GATS Track 2 Disciplines (The August 2006 ABA Resolution represents the current ABA policy with respect to the GATS Track 2 and the desired U.S. negotiating position concerning WTO GATS Disciplines.)
- See also August 2006 Resolution 5 of the Conference of Chief Justices Regarding the Proposed Recommendation Pending Before the House of Delegates of the American Bar Association [Regarding GATS Track 2 Disciplines]
- See also USTR Webpage on the Doha Development Agenda, USTR Fact Sheet on State Sovereignty and Trade Agreements: The Facts and USTR Fact Sheet on the GATS and the States
The “library” section of the “Trade Observatory” website includes documents circulated by WTO Member States that are not available on the official WTO website because the documents have not been officially derestricted. The Trade Observatory library also includes documents by organizations that have commented on WTO Disciplines proposals. These documents include letters from U.S. state governors to the USTR concerning the GATS negotiations and documents prepared by the Harrison Institute, which is one of the harshest critiques of GATS Track 2 initiatives. To find GATS Track 2 documents in the Trade Observatory library, select the topic “GATS” from the left-hand, drop down menu.
The International Bar Association's Resolution on "Disciplines" and Supporting Documents
In December 2002, on behalf of WTO Member States, the WTO Secretariat solicited a response from the International Bar Association regarding the suitability of applying to the legal profession the Disciplines for Domestic Regulation in the Accountancy Sector, S/L/64. On May 30, 2003, the IBA held an all-day "GATS Forum" in Brussels. The purpose of the GATS Forum was to find out if IBA Member Bars could reach a consensus on two issues: 1) a recommendation concerning the suitability of applying to the legal profession the "Disciplines for Domestic Regulation in the Accountancy Sector"; and 2) a recommendation concerning the legal services classifications to use in the ongoing GATS negotiations. On September 18, 2003, the IBA Council voted unanimously to approve the resolution below. Also reproduced below are the accompanying documents that were sent to the WTO Secretariat in December 2003.
For more information about the WTO's consultation and the development of the IBA's response, see Laurel S. Terry, Lawyers, GATS, and the WTO Accountancy Disciplines: The History of the WTO's Consultation, the IBA GATS Forum and the September 2003 IBA Resolutions, 22 Penn State Int'l L. Rev 695 (2004).
- Letter from the WTO to the IBA Asking for Input on the "Disciplines" issue
- IBA Resolution Concerning the "Disciplines on Domestic Regulation in the Accountancy Sector (S/L/64)"
- Exhibit A to the IBA Resolution — Proposed Changes to the S/L/64 (on pdf pages 82-86)
- Exhibit B to the IBA Resolution — Explanatory Memorandum Accompanying the Resolution (on pdf pages 87-120)
- Unofficial Copy of the WTO Disciplines, Annotated to Show the IBA's Proposed Changes
The Union Internationale des Avocats Response to the WTO's December 2002 Consultation about "Disciplines"
The WTO's December 2002 consultation letter about the WTO Accountancy Disciplines was also sent to the Union Internationale des Avocats or UIA. In November 2004, the UIA responded to the WTO and attached several documents as exhibits:
- UIA November 10, 2004 Letter Responding to the WTO's December 2002 Consultation about the Accountancy Disciplines
- Exhibit 1 to the UIA Letter - the Turin Principles Of Professional Conduct For The Legal Profession In The 21st Century
- Exhibit 2 to the UIA Letter - the UIA MDP Resolution
- Exhibit 3 to the UIA Letter - UIA Standards For Lawyers Establishing A Legal Practice Outside Their Home Country
Other Entities' Analyses of the Suitability of Applying the WTO Disciplines for the Accountancy Sector to the Legal Profession
- Canadian Bar Association, Submission the General Agreement on Trade in Services and the Legal Profession: The Accountancy Disciplines as a Model for the Legal Profession (Aug. 2000)
- Federation of Law Societies of Canada, Meeting Canada's Current Obligations for the Legal Profession under the General Agreement (Adopted Feb. 24, 2001)
- CCBE Position Paper on Disciplines
- IBA GATS Handbook (see pp. 33-44 for a discussion of the "Disciplines" issue)
- Webpage of the IBA WTO Working Party (including reports on visits to Geneva)
- Prof. Laurel Terry's webpage on the Work of the WTO Working Party on Domestic Regulation