Don't Gamble with GATS—The Interaction between Articles Ⅵ, XVI, XVII and XVIII GATS in the Light of the US—Gambling Case

摘要

This article attempted to draw the dividing line between four important GATS provisions that appear to overlap in several instances, i.e., Articles Ⅵ, XVI, XVII, and XVIII. Admittedly, the GATS text itself is not a model of clarity when it conies to the relationship of these four Articles and this was made clear throughout the US— Gambling dispute. For instance, both the Panel and the Appellate Body in this case had recourse to the 1993 Scheduling Guidelines, which arguably have given more answers than the text of Articles XVI or Ⅵ GATS could ever give. The 2001 Scheduling Guidelines should be expected to play a similar role for future disputes, all the more because they were officially adopted by the CTS in 2001. The US—Gambling ruling gave some crucial hints particularly as to the interplay between Article Ⅵ and XVI. Most importantly, the outcome of this dispute stimulated discussions regarding the scope of the aforementioned Articles and the manner that would allow the legal classification of a given domestic regulatory measure under the one or the other. Notably, with respect to market access under Article XVI GATS, the Panel and more expressly the Appellate Body, were fairly prudent to discourage any circumvention of undertaken commitments under the market access obligation. In this respect, it was made clear that in the absence of any inscribed limitations to the contrary, a full market access commitment in a given sector cannot coexist with market access limitations in the same services sector that exhibit a numerical or quantitative nature and this regardless of the form that these measures take. Indeed the Appellate Body, correctly in my view, dismissed an interpretation that would confine Article XVI GATS to cover only measures that take the precise form described under the subparagraphs of this provision or measures expressly couched in numerical terms. On the other side, the Appellate Body was careful enough to underscore that measures having the effect of restricting market access would not be considered as falling under Article XVI. Indeed, the wording of this provision does not leave any margin for misinterpretations. The interpretation advanced by the Appellate Body could be characterized as a realistic one, as it went beyond the text of Article XVI GATS to focus on the specific measures at stake and examine their nature, which was found to be quantitative. While this interpretation does not provide with any legal certainty, it appears to be the most appropriate one taking into account the GATS text as well as the WTO Members' sensitivities associated with trade in services, and the Members' prerogatives to regulate in sensitive policy areas and to pursue legitimate objectives. Indeed, the US—Gambling ruling did not put into question, but instead confirmed Members' right to regulate in order to pursue legitimate objectives.