Less than the Gats: 'Negative Preferences' in Regional Services Agreements

Rudolf Adlung and Peter Morrison

Journal of International Economic Law, 2010, vol. 13, issue 4, 1103-1143

Abstract: Regional trade agreements in services are a relatively recent, but rapidly expanding phenomenon. Their relationship with commitments undertaken under the General Agreement on Trade in Services (GATS) or offered in the Doha Round has attracted some attention in the literature. Relevant publications tend to focus on the 'value added' that such agreements might generate through broader sectoral coverage or deeper levels of liberalization. This article takes a different perspective, however, and focuses on provisions that fall short of the same countries' GATS commitments. Such 'negative preferences' are more than an isolated occurrence: they can be found in most recent agreements, including agreements involving some of the largest World Trade Organization (WTO) Members. The existence of 'negative preferences' or 'GATS-minus commitments' may prove relevant for several reasons: in particular, they could impinge on an agreement's legal status under the GATS and help create a trading system beyond the WTO. It is conceivable that such minus-commitments are mutually conceded in 'sensitive' sectors or tacitly accepted in view of 'side-payments' in non-WTO currency (including development finance). Those who subscribe to Bhagwati's comparison of PTAs with termites might thus have additional reason to be alarmed: the bugs' unconventional table manners. Oxford University Press 2010, all rights reserved, Oxford University Press.

Date: 2010
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