SEE ALSO
Objections dropped on services say nothing about other plurilaterals
Plurilateral services commitments from 53 members certified, 17 to go
South Africa drops objections to 27 plurilateral services commitments
Experts: India, S.Africa unlikely to succeed in blocking WTO services deal
AND
Technical note: what are schedules of commitments in services?
Technical note: types of plurilateral deals and adding them to WTO rules
Explainer: The 18 WTO plurilaterals and ‘joint-statement initiatives’
Technical note: Participation in WTO plurilateral talks
By Peter Ungphakorn
POSTED MARCH 6, 2024 | UPDATED MARCH 6, 2024
More details have emerged explaining what happened in talks between some participants in the plurilateral agreement on services domestic regulation and objectors India and South Africa, leading to the objections being dropped.
The story is told in the minutes of the multilateral (WTO-wide) working party handling domestic regulation in services. The minutes are still restricted but will be public in a few months. A leaked copy is here.
They show that South Africa and India had already told WTO members they would drop their objections several weeks before their formal announcements.
The minutes include a description by the EU (also representing its 27 members) of its talks with India and South Africa over the proposed revised schedules (or lists) of commitments on services.
The EU and other participants in the “plurilateral” deal (ie, only some WTO members involved) had proposed making their new agreement on services domestic regulation legally binding using their services schedules.
This has the advantage of avoiding the need for consensus agreement if the deal is to added to the set of WTO agreements. The disadvantage is that the new disciplines are not presented as a formal agreement and are much more difficult to find.
Originally the participants in the domestic regulation deal had simply added a reference and link to the agreement’s text in their proposed revised services schedules.
India and South Africa had objected, meaning the revised schedules could not be certified.
The EU explained in the January 24 meeting that after talks with the two objectors between March and June 2023, the proposed revised schedules were corrected.
The changes are mainly presentational rather than altering any substance. The whole text of the agreement has been pasted into corrected versions. Four points have also been added to an accompanying document (“the cover page of [the EU’s] Corrigendum”):
“1. For greater certainty, the present certification does not create a precedent for incorporating outcomes in the WTO, including from the Joint Statement Initiatives.
“2. The additional specific commitments do not diminish the rights nor alter the obligations under the General Agreement on Trade in Services of WTO Members that are not undertaking these additional specific commitments. Furthermore, they do not diminish any obligation under General Agreement on Trade in Services of WTO Members that undertake these additional specific commitments.
“3. The additional specific commitments are without prejudice to the development of any necessary disciplines pursuant to paragraph 4 of Article VI of General Agreement on Trade in Services.
“4. Reference to ‘Members’ or ‘Member’ included in the disciplines are to be understood as referring to the WTO Member undertaking these additional specific commitments. Reference to ‘other Members’ are to be understood as referring to ‘other WTO Members’. The reference to ‘professional bodies of Members’ is understood as referring to ‘professional bodies of WTO Members’.”
According to the minutes, “The EU thanked India and South Africa for their engagement in finding a solution for the way forward.” It added that it understood other participants in the plurilateral agreement could do the same. (Many of them did.)
South Africa and India then confirmed that they would drop their objections.
Services have their own certification rules
The rules on certifying the revised schedules would have made it difficult for the two to continue objecting indefinitely, particularly if they could not make a case to seek arbitration on the grounds that their rights and obligations were being harmed. (See this detailed explanation from the WTO Secretariat.)
They would have struggled to make such a case since non-participants are free-riders on disciplines that participants apply equally, without discrimination, to services from all WTO members.
As a result, 26 revised schedules from 53 WTO members were officially certified during the February 26–March 2 Ministerial Conference.
India’s and South Africa’s objections were dropped from one more — the UK’s — which faces additional objections related to its departure from the EU (Brexit), but Britain said it would continue to apply the new disciplines anyway.
Moscow’s problem is based on a long-standing challenge about the legality of extracting the UK’s proposed commitments on services (and a correction) from the EU’s, first raised in January 2019 (documents S/L/423 and S/L/424). (See also explanation here.)
The schedules of another 17 participants in the domestic services regulation agreement have not been certified, apparently because they have not been amended to the satisfaction of India and South Africa.
The announcements that the revised schedules of commitments have now been certified are for: Argentina, Bahrain, Chile, China, Costa Rica, the EU (including for its 27 member states), Hong Kong, Iceland, Israel, Japan , Kazakhstan, Liechtenstein, Mauritius, Moldova, Montenegro, New Zealand, North Macedonia, Norway, Paraguay, Peru, Singapore, Switzerland, Thailand, Ukraine, United Arab Emirates and the US.
(At the time of writing the actual revised schedules are gradually being published here and the certifications here, including for some EU member states where needed.)
India and South Africa have not dropped objections to the proposed schedules of commitments from 11 other participants in the agreement: Albania, Australia, Canada, El Salvador, Georgia, South Korea, Mexico, Nigeria, Russia, Saudi Arabia and Taiwan.
They have not yet corrected their proposed commitments to meet the two countries’ objections. (El Salvador’s proposed schedule was only circulated on February 19, 2024.)
Apparently, five more have not yet submitted commitments to include the new rules at all: Brazil, Colombia, Philippines, Türkiye and Uruguay.
One other participant is Timor-Leste, which is about to join the WTO — its membership has been agreed, but it needs to ratify the package and 30 days later it becomes a member.
As part of its membership package it will make commitments in services but we don’t know if the domestic regulation plurilateral is included.
More details are here.
PARTICIPANTS
Domestic regulation in services — plurilateral
February 13, 2024
Albania; Argentina; Australia; Austria; Bahrain; Belgium; Brazil; Bulgaria; Canada; Chile; China; Colombia; Costa Rica; Croatia; Cyprus; Czechia; Denmark; El Salvador; Estonia; European Union; Finland; France; Georgia*; Germany; Greece; Hong Kong, China; Hungary; Iceland; Ireland; Israel; Italy; Japan; Kazakhstan; Rep. Korea; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Mauritius; Mexico; Moldova; Montenegro; Netherlands; New Zealand; Nigeria; North Macedonia; Norway; Paraguay; Peru; Philippines; Poland; Portugal; Romania; Russian Federation; Saudi Arabia; Singapore; Slovak Republic; Slovenia; Spain; Sweden; Switzerland; Chinese Taipei; Thailand; Timor-Leste**; Türkiye; Ukraine; United Arab Emirates*; United Kingdom; United States; Uruguay (71)
* Joined June 2022 | **An observer about to join the WTO
Sources are here
Updates: None so far
Image credit:
Collage | CC BY-SA 4.0
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