Services Negotiations in the Doha Round: Lost in Flexibility?

The World Trade Organization (WTO) rules for services trade, under the General Agreement on Trade in Services (GATS), are far broader in policy coverage than their counterpart provisions under the General Agreement on Tariffs and Trade (GATT), reflecting, inter alia, the Agreement’s extension to cross-border movements of services consumers and factors of production. At the same time, the GATS is significantly more flexible in application than the GATT. There are virtually no political sensitivities, protectionist or not, that could not be formally accommodated within its structure. Moreover, the paucity of relevant jurisprudence on key concepts and a yet incomplete rule-making agenda have provided additional scope for ‘creative’ interpretation. However, while flexibility was a sine qua non for the conclusion of the Agreement, given the diversity of institutional conditions, political concerns, and so on among participants, it has not been conducive to one of the key objectives: ‘early achievement of progressively higher levels of liberalization’. This article discusses possible approaches that, within the Agreement’s current structure, could promote the clarity, quantity, and commercial relevance of services commitments and address remaining rule-making issues. However, there is no panacea. The challenge remains to find a reasonable balance between economically meaningful disciplines and their broad application across sectors, modes of supply, and WTO Members.