«TISA: THE LEAKED ‘CORE TEXT’ The Trade in Services Agreement (TISA) is being negotiated by a self-selected group of mainly rich countries, calling ...»
The US has a long-standing sensitivity over domestic regulation rules, and has blocked them in the GATS, and wants to limit the contestable requirement that general measures are administered in a ‘reasonable, objective and impartial manner’ to sectors committed in its schedule. Presumably the remainder of the ‘disciplines’, which will impose more extensive restrictions on governments, will be in separate rules or annex.
Transparency: There is a placeholder for a core provision on transparency, with a cross-reference to a US text proposal. It is clear that transparency will go beyond the GATS requirement to publish relevant measures of general application. ‘Transparency’ in TISA means ensuring that commercial interests, especially but not only transnational corporations, can access and influence government decisions that affect their interests – rights and opportunities that may not be available to local business or to national citizens. They may want to stop or change government decisions they don’t like, or rally to support those that are being challenged. Several texts on Transparency have been leaked, along with transparency provisions in other chapters. (Please see the separate analyses of these documents.37) Subsidies: There is simply a placeholder for a provision on subsidies. 38 Subsidies are a ‘measure’ covered by the core rules. It would breach the national treatment rule to restrict them to domestic services and suppliers, unless the right to do so has been protected in the schedule. The actual texts of some FTAs have excluded subsidies (and even grants and similar supports) from the rules.
There is no indication of whether that is being considered for TISA, or whether they are considering whether to repeat the GATS provision that commits to negotiate rules on ‘trade distorting subsidies’ and provide consultations where a party says it has been disadvantaged by payment of a subsidy - a provision that has largely been ignored.
The structure of TISA As expected, many basic provisions of what is called the ‘core text’ for TISA are identical to the General Agreement on Trade in Services (GATS) in the World Trade Organization (WTO). That is to [Article […]: review of Administrative Decisions] February 2014 text (https://wikileaks.org/tisa/domestic/) and analysis (https://wikileaks.org/tisa/domestic/analysis/Analysis-TiSA-Domestic-RegulationAnnex.pdf). See new text and analysis on Wikileaks.
[Article […] Domestic Regulation] 23 January 2015 text (https://wikileaks.org/tisa/transparency/01-2015/) and analysis (https://wikileaks.org/tisa/transparency/01-2015/analysis/Analysis-TiSA-TransparencyArticle.pdf) [Placeholder for subsidies] make it easier to integrated back into the GATS. New schedules of commitments of sectors will greatly extend the coverage and impact of the rules. In addition there will be referred to as ‘new and enhanced disciplines’. Disciplines are trade-speak for restrictions on what governments can do in relation to services.
Provisions that are different from the GATS are in blue italics. The corresponding GATS provision is in brackets.
PART 1: GENERAL PROVISIONSScope (Art 1 and Art 28) Most-Favoured-Nation Treatment (Art 2) Economic Integration (Art 5) Market access (Art 16) National treatment (Art 17) Disclosure of Confidential Information (Art III bis) Domestic Regulation (Art 6) Additional Commitments (Art 18) Review of Administrative Decisions (new) Transparency (Art III) Recognition (Art 7) Payments and Transfers (Art 11) Restrictions to Safeguards for Balance of Payments (Art 12) Monopolies and Exclusive Service Suppliers (Art 8) General Exceptions (Art 14) Security Exceptions (Art 14 bis) Denial of Benefits (Art 28) Government Procurement (Art 13) (Subsidies: Art 15)
PART II SCHEDULING COMMITMENTSScheduling of Market Access Commitments (cf Art 20) Scheduling of National Treatment Commitments (cf Art 20) Scheduling Measures Inconsistent with both Market Access and National Treatment (cf Art 20) Scheduling of Additional Commitments (cf Art 20)
[PART III: NEW AND ENHANCED DISCIPLINES
PART IV INSTITUTIONAL PROVISIONSResolution of disputes Future participation in Agreement Multilateralisation Institutional provisions ANNEXES] Standard provisions of GATS in TISA Because the core text reflects the strategy of creating a text that can ‘dock’ with the GATS many of
the core definitions and rules about coverage are also the same:
definitions, measures supply of services ‘modes’ of supplying services, sector commercial presence application to local government services supplied in exercise of government authority monopoly.