Due Process and 'Good' Regulation Embedded in the GATS - Disciplining Regulatory Behaviour in Services Through Article VI of the GATS

Abstract

On the occasion of the US - Gambling ruling, the General Agreement on Trade in Services (GATS) came to the forefront. Several critiques against this ruling highlighted the urgent need to clarify important concepts laid down in the GATS. Domestic regulation is arguably the overarching concept when it comes to trade in services, inter alia, because of the regulatory intensity that characterizes many service sectors. Article VI of the GATS aspires to discipline non-discriminatory domestic regulatory measures. In this respect, World Trade Organization (WTO) Members are required to adhere to certain due process obligations and to develop additional rules of ‘good’ regulation through the completion of the work program set out in Article VI:4 of the GATS. This paper provides a comprehensive analysis of Article VI. In doing this, it explores the objective function and the mechanics of this provision bearing in mind the delicate balance between trade liberalization and regulatory sovereignty that becomes apparent in Article VI more than in any other GATS provision.