Public Services and Trade Liberalization: Mapping the Legal Framework

The European Union, the World Trade Organization and Cultural Diversity

“…9 Except for services supplied in the exercise of governmental authority according to Article I:3(b) GATS. For a detailed interpretation, see Krajewski (2003). in goods, the GATS offers substantially more wiggle room for national policy-makers and is less aggressive in terms of opening markets. While under the GATT, obligations regarding national treatment and quantitative restrictions apply across the board, the GATS framework adopted a 'bottom-up' (or 'positive list') approach.…”

The General Agreement on Trade in Services (GATS): What's in it for Social Security?

“…Finally, var i ous safe guards per mit gov ern ments to re verse or with draw from com mit ments and to pro tect hu man health through mea sures which might oth er wise con tra vene the Agree ment. Crit ics (Krajewski, 2003;Pollock and Price, 2000;Sex ton, 2001;Sinclair, 2000;Wesselius, 2002;WDM, 2001) have not been con vinced by these ar gu ments, as sert ing that Ar ti cle I.3c may only pro tect pub lic ser vices that are pro vided by com pletely non-com mer cial, abso lute pub lic mo nop o lies; the GATS em bod ies a neo-lib eral con cep tion of pub lic goods pro vi sion that chal lenges the fund ing and ad min is tra tion of services as pri mar ily pub lic sec tor do mains; and the pres sure to "open up" public ser vices to the GATS is likely to in crease over time ow ing to the "built-in agenda". They also em pha size that it is ex tremely difficult in prac tice for mem bers to re ne go ti ate their com mit ments, as they must wait three years after hav ing listed a com mit ment be fore al ter ing it and then ne go ti ate a sub stitute com mit ment in a way that sat is fies all other WTO mem bers.…”

“…More over, it is un clear whether man da tory sav ings schemes, such as Asian prov i dent funds, count as stat u tory so cial se cu rity schemes; they may be com pul sory, in tended to cover some so cial risks and be mem bers of the In ter na tional Social Se cu rity As so ci a tion, but are ar gu ably sav ings/in vest ment schemes rather than so cial se cu rity schemes. Should a nar row in ter pre ta tion of the ex emp tion pre vail, as Krajewski (2003) and Sinclair (2000) ar gue would be con sis tent with general rules of treaty interpretation, the GATS net could be cast over a wide range of income-support-related schemes and functions that members may not have envisaged or wish to be covered by the Agreement.…”

“…Given the ab sence of any GATS rul ings on com pe ti tion in the pub lic services sec tor, it may be in struc tive to draw on rul ings of Gen eral Agree ment on Tar iffs and Trade (GATT) dis pute pan els in de ter min ing the cir cumstances un der which com pe ti tion ex ists (GATT, Ar ti cle III.2) (Krajewski, 2003). GATT rul ings have dis tin guished be tween "like" and "di rectly compet i tive and substitutable prod ucts" in de ter min ing what is the rel e vant mar ket and whether en ti ties op er at ing in that mar ket are com pet ing against each other.…”

Workplace partnership and public service provision

“…While the ideological drive for all of this had been from the Thatcherite New Right during the 1980s and 1990s, since 1997 the core elements of this modernization agenda have been adopted by the Labour Government as part of its Third Way (Giddens, 1998) policy agenda. In addition, further pressures are emanating from the wider economic environment, notably the monetary convergence criteria of the Maastricht treaty and, more recently, the General Agreement on Trade in Services (GATS) (Krajewski, 2003;Leys, 2001: 207-210).…”