The ‘other GATS negotiations’: domestic regulation and norms

In our previous entries (here and here) in GlobalHigherEd we introduced the World Trade Organization (WTO) and explained the content and implications of the liberalization negotiation within the General Agreement on Trade in Services (GATS). The liberalization negotiation is the most well known activity within the scope of GATS. In fact, very often the GATS and education literature restricts the content of the agreement to its liberalization disciplines (that is, market access and national treatment).

However, other negotiations that are equally relevant to the future of higher education are also taking place, and specifically the negotiations on Domestic Regulation (DR) and Norms.

Discussion on these topics takes place as the logical consequence of the fact that the GATS is an incomplete agreement. In the Uruguay Round, the GATS was designed and signed, but member countries did not reach a consensus in sensitive issues, such as Domestic Regulation (Article VI) and the so-called Norms (Articles X, XIII and XV). So, after Uruguay, two working groups – composed by all WTO member countries – were established with the objective of concluding these articles.

Domestic regulation negotiations
Article VI establishes that the national regulation cannot block the “benefits derived from the GATS” and calls member countries to elaborate disciplines and procedures that contribute to identify those national regulations that states’ impose on foreign services providers that are ‘more burdensome than necessary’. The regulations in question include those associated with:

  • qualification issues (for instance, certificates that are required by education services providers),
  • technical standards (which can be related to quality assurance mechanisms), and
  • licensing requirements (which, in some countries and sectors might refer to conditions and benchmarks on access to the service).

One of the procedures that is being discussed in the framework of the Working Group on DR is a polemical ‘necessity test’. If this instrument is approved, Member States will have to demonstrate, if asked, that certain regulatory measures are totally necessary to achieve certain aims, and that they could not apply any other less trade-restrictive alternative.

Rules
In the framework of the Working Group on Rules, three issues are being discussed:

  • Emergency Safeward Mechanisms (Article X): These mechanisms, when settled, would permit to countries to retrieve some liberalization commitments – without receiving any sanction – in case that it can be demonstrated that the liberalization experience has had very negative effects. Southern countries are more interested in the achievement of strong mechanisms, while developed countries pushes for softer disciplines.
  • Government procurement (Article XIII): The Working Group examines how government procurement could be inserted in the GATS framework. Therefore, transnational services corporations could become public procurement bidders in foreign countries. Developed countries are most interested in strong disciplines in relation to this rule.
  • Subsidies (Article XV): In this case, Members are elaborating disciplines to avoid the “distortion to trade” provoked by subsidies.

DR and Rules negotiations are different to the liberalization negotiations in the sense that the former are not developed progressively (i.e. round after round). On the one hand, once each country reaches an agreement, consecutive negotiations on these areas will not be necessary. On the other hand, DR and Norms affect all sectors indiscriminately because, in contrast to liberalization negotiations, they are not negotiated sector by sector.

The outcome of the Working Groups on DR and Rules will thus modify the balance between the legitimate capacity of the states to prosecute certain social objectives (for instance, in relation to the access and quality of public services such as education) and the obligation to guarantee a free trade environment for transnational services providers.

Given the importance of these ‘other’ negotiations in the GATS, our view is that the education community should make sure that they also keep a watchful eye on them. GlobalHigherEd readers might find the information in the periodic publication TradeEducation News, launched by Education International, a useful way of doing this.

Antoni Verger and Susan Robertson

GATS BASICS: key rules and concepts

We recently announced a series of entrances in GlobalHigherEd on the World Trade Organization’s two controversial trade agreements launched in 1995 – the General Agreement on Trade in Services (GATS) and the Trade Related Intellectual Property Services (TRIPS). The series explores the relation between these two agreements and Higher Education sector. Our first entrance focused on the history of the World Trade Organization, and the GATS and TRIPS.

This entrance introduces some of the language and concepts used to describe the processes and instruments in order that readers might develop a better understanding of the GATS’ content and architecture.

The GATS is one of the main agreements of the WTO. In fact, this agreement has been described by the WTO itself as:

the most important event in the system of multilateral trade since GATT came into force in 1948.

In the preamble of the Agreement it is established that the core aim of the GATS is to promote trade liberalization of all kind of services. Specifically, the GATS contemplates the liberalisation of twelve services sectors, among which we find educational services.

Educational services are, in turn, divided into five sub-sectors:

  • primary education;
  • secondary education;
  • higher education;
  • adult education; and
  • other educational services.

One of the reasons for the complexity of GATS is related to the technical difficulties associated with the commercialization of services. We should take into account that services are usually consumed where they are produced and are both produced and consumed simultaneously.

So, how is it possible to ‘export’ services?

To solve these dilemmas, the agreement contemplates four modes of commercializing services (instead of the unique mode of trade in goods). These are:

  1. cross-border supply: provision of a service at a distance. In the case of education, this mode materializes in e-learning or, in general, in distance learning programs;
  2. consumption abroad: the consumer (in our case the student) travels to another country to access to the service;
  3. commercial presence: the service company sets up a subsidiary abroad. For example, a university sets up a branch campus in another country;
  4. presence of natural persons: a professional travels to a foreign country to provide a service.

All WTO member countries are supposed to adopt liberalization commitments on services by means of successive negotiation rounds (such as the Uruguay Round 1986-1994, and the Doha Round 2001-?). In these rounds, countries negotiate trade opening in relation to the different services sectors, to the different modes of supply and, more importantly, in relation to two main regulatory areas: National Treatment and Market Access.

The acquisition of commitments on liberalization in terms of National Treatment means accepting that foreign companies benefit from treatment ‘not less favorable’ than that given to domestic companies.

It implies that foreign suppliers cannot be discriminated against in relation to national providers and to certain policies such as subsidies, qualifications, licenses, standards and so on.

Image courtesy of Lorelyn Medina

The commitments on Market Access mean the elimination of barriers embedded in the national regulation of the sector that hinder the entrance of foreign service providers in the domestic market (for instance, limitations on the number of services suppliers which are allowed, specification of the legal personality of the providers suppliers or the percentage of foreign capital allowed).

Additionally, there are a series of general principles that are not subject to negotiation and that, consequently, have to be respected by all the countries. Probably, the most important one is the Most Favored Nation principle. This principle stipulates that each member will immediately and unconditionally assign service suppliers of a foreign country a treatment no less favorable than that given to service suppliers of any other WTO member country.

On paper, the GATS only obliges member countries to participate in negotiations; it does not oblige them, in the process of such negotiations, to establish liberalization commitments. It is also important to take note of the fact that once the countries have adopted liberalization commitments, they are very difficult to withdraw. The Agreement is viewed by some observers as a means of constitutionalizing pro-market and pro-trade rules in a binding set of rules which affects education and other services sectors at the supra-national level.

In following entrances we will deal with other basic GATS rules, the implications of liberalization commitments in the framework of the GATS, as well as with the passionate debate it has generated in the higher education field.

Toni Verger and Susan Robertson

GATS, TRIPS and higher education: projects, politics and prospects

The World Trade Organization (WTO) and two of its agreements, the General Agreement on Trade in Services (GATS) and the Trade Related Intellectual Property Services (TRIPS), have emerged as important features of the global higher education landscape.

However, despite the importance of the WTO and its Agreements, many of us working in the sector have either very little, or at best very sketchy, knowledge about GATS and TRIPS as projects, their politics and what might be the likely prospects for the future. Even our sketchy knowledge tends to be shaped by media images largely around the biennial Ministerial Meetings for the WTO; from clashes with riot police in Seattle in 1999 (see below) to more recent arrests in Hong Kong in 2005.

GlobalHigherEd will carry a series of feature pieces on the WTO’s GATS and TRIPS Agreements, beginning here with a brief outline of the World Trade Organization and the emergence of the GATS and TRIPS Agreements in 1995.

Although the WTO is a new international organization, its origins are rooted in the General Agreement of Trade and Tariffs (GATT) of 1947. In the Uruguay Round of the GATT (1986-1994), it was decided that the international trade rules should pay more attention to the trade of “invisibles”, such as intellectual property, services and knowledge. These elements were more and more important for the world economy and were not covered by the GATT’47. To manage these new complexities, a single trade agreement was not enough. So, it was necessary to create an international organization, the WTO, which contemplated new trade agreements to fill the GATT gap: the TRIPS and the GATS. Currently, the WTO has 151 member countries. These countries have committed themselves to respect the norms and disciplines of the WTO agreements, as well as to promote progressive trade liberalization in the areas covered by the agreements. wto-logo.jpg

In addition to the scope, another important difference between the GATT and the WTO is related to the dispute settlement procedure. The dispute settlement system of the WTO is regarded as much more efficient than the old system because of new procedural innovations. This also makes the WTO more powerful in enforcing trade agreements and consequently obliges member countries to be careful about respecting the content of the trade agreements.

Finally, another important difference between the GATT and the WTO can be found in its political character. In the framework of the WTO, the liberalization principle is stronger than in the original GATT. This Agreement, created in the post-WWII context, instituted a commercial regime of Keynesian embedded liberalism. But the WTO, created in a moment of neoliberal climax, clearly breaks the balance between the global liberalization objective and the capacity of states to deliver their legitimate social purpose. The fact that the WTO covers public services, such as health and education, as well as other public goods such as knowledge, significantly increases the social implications of this political shift in the international trade regime and one that GlobalHigherEd will be exploring in detail.

Both the presence and the politics of the WTO and its embrace of education–including higher education–as a new tradeable services sector is not only far reaching, but has important implications for academics’ everyday work and for how the sector is constructed and regulated. For these reasons, those working in the sector should have at least a working knowledge of the GATS and TRIPS processes so that they can either mediate or intervene in debates. We hope this series  will help you contribute to this debate.

Susan Robertson and Antoni Verger