Reasonableness, impartiality and objectivity

Abstract

Introduction Similar to the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) imposes requirements of reasonableness and impartiality on World Trade Organization (WTO) members with respect to their administration of certain measures. This general obligation of procedural fairness offers a potentially powerful mechanism for ensuring equitable treatment for traded services and service suppliers beyond the substantive disciplines of WTO law, such as those related to discrimination. Yet, the provision has been subject to relatively little extended commentary or jurisprudence, perhaps because of an underlying concern about the sovereignty implications of WTO dispute settlement organs assessing the reasonableness of WTO members’ administration. Further exploration of the requirements of GATS Article VI:1 is warranted, not only due to the potentially wide-reaching nature of the provision itself (particularly in view of the importance of licensing, access and similar decisions in the context of trade in services), but also due to the existence of corresponding concepts of reasonableness in other GATS provisions. For example, references to objectivity, impartiality and reasonableness appear elsewhere in the GATS domestic regulation provision, Article VI. GATS Article VI:2(a) provides that where judicial, arbitral or administrative review of administrative decisions affecting trade in services is ‘not independent’ of the agency that made the decision, members must ensure that the review procedures ‘in fact provide for an objective and impartial review’. GATS Article VI:3 requires that members’ competent authorities advise decisions ‘within a reasonable period of time’ after the submission of a complete application for authorization to supply a service on which the member has made a specific commitment.