GATS Article V and Regional Liberalization in Trade in Services Markus Jelitto SADC Secretariat

Requirements of GATS Article V Article V provides cover for preferences among members of an Economic Integration Agreement No MFN exemption required if conditions are met In practice, a number of MFN exemptions were filed in the Uruguay Round to cover existing PTAs PTAs may apply to merchandise and services trade: Article V is relevant for the services parts or for services-only Agreements

Article V in a nutshell Between parties to the agreement: “Substantial sectoral coverage” (volume of trade, number of sectors, and modes of supply) No a priori exclusion of modes of supply Absence or elimination of discrimination “in the sense” of Article XVII (national treatment) With respect to non-parties: Should facilitate trade among parties and not raise overall barriers vis-à-vis other Members If GATS specific commitments are affected, renegotiation according to Article XXI is required

Flexibility in Art V Elimination of all discrimination can be achieved over “a reasonable timeframe” Conditions are relaxed if developing countries are parties to the agreement Consideration may be given to the relationship with a wider process of economic integration However: No discrimination of suppliers (juridical persons) of third countries, except for agreements among developing countries

Flexibility regarding the consistency criteria For an agreement between/among developing countries, some flexibilities are provided The level of development of the countries concerned, both overall and in the individual sectors and subsectors Art V 3 (a) No guidelines on how to assess the level of development, and its effect on the consistency criteria

Relationship with service providers from third countries (rules of origin) -Article V:6 Service providers from third countries can take advantage of an RTA, subject to such third country’s “substantive business operations” in the RTA parties However, for an agreement between/among developing countries, some flexibilities for them are provided Preferences may be granted to the parties “own” services suppliers only Art V 3 (b)

Rules of Origin in practice Rest of the world EIU C1 Exports through M 1, 2, 3 Country 1 Country 2 SADC requires “substantial business operations” in the territory of a State Party

Rules of origin (2 ) From an economic perspective a liberal rule of origin is to be preferred, -> Possible approaches (for commercial presence): Substantial business operations in one MS (most liberal stance) Local incorporation in each MS MS ownership and control 8

Rules of Origin in African Services PTAs SADC: Defines “juridical person” (to which benefits of the Agreement are conferred) as a legal entity set up in accordance with the laws of a State Party, and engaged in “substantial business operations” in the territory of that Member or any other State Party. Denial of benefits possible “where the State Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-State Party and that has no substantial business operations in the economy of a State Party.” COMESA: “Juridical person” means a legal person set up in accordance with the laws of a Member State of the COMESA respectively, and having its registered office, central administration, or principal place of business in the territory of the Member State -> if operations possess a real and continuous link with the economy of the member State EAC: (Establishment)companies or firms having their registered office, central administration or principal place of business and which undertake substantial economic activities in the Partner State shall, for purposes of establishment, be accorded non discriminatory treatment in other Partner States. (Note: the terms company and firm do not refer to nationality of ownership) Services: Free movement of services: for service suppliers who are nationals. “national of a Partner State” means a natural or legal person who is a national in accordance with the laws of the Partner State

Negotiating approaches in African PTAs COMESA,EAC, SADC all use positive list approach..but COMESA negotiating guidelines provide for standstill as target All RECs use request-offer approach: With Comesa starting with offers and “topping up”on basis of requests

Priority Sectors SectorCOMESAEACSADC Business ServicesXX CommunicationX*XX ConstructionX (incl. engineering)X DistributionX EducationX Environmental FinancialX*XX Health and Social Tourism and TravelX*XX Recreational, Cultural, Sporting TransportX*XX# EnergyXX *= denotes priority sector in first phase # =excludes air traffic rights *= denotes priority sector in first phase # =excludes air traffic rights

Status quo in the three African RECs EAC Common Market Protocol in force 1 July 2010 Finalized first round of schedules in priority sectors Now discussing negotiations on remaining sectors COMESA COMESA Services Regulations adopted June 2009 Contain mutual definitions on M4 (ICT, CSS, IP, BV) and targets for removal of quotas and Needs Tests in M4. Negotiations on 4 priority sectors progressing, offers partly submitted Allows for denial of benefits to MS who do not make commitments in priority sectors SADC Draft services Protocol to be signed at Summit in August 2012 Requires ratification by 2/3 of Member States to enter into force Negotiating Guidelines approved by CMT Negotiations on priority sectors commenced in April 2012 Roadmap foresees completion of negotiations by April 2015