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GATS & Telecom Reasonable regulation. Right to Regulate Members,... Recognizing the right of Members...
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Transcript of GATS & Telecom Reasonable regulation. Right to Regulate Members,... Recognizing the right of Members...
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GATS & Telecom
Reasonable regulation
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Right to Regulate
Members, ...
Recognizing the right of Members to regulate, and to introduce new regulations, ... in order to meet national policy objectives and
given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of developing countries to exercise this right ...
Agree as follows ...
GATS Preamble
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Reasonable Regulation
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What is “reasonable”?
Transparent Non-discriminatory Objective Impartial Timely Least burdensome Necessary Least (trade) restrictive
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Non-discrimination
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Most-favoured-nation TreatmentMFN is critical - it makes WTO truly multilateral
“… each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country”
GATS Art. II:1
Non-discrimination
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Non-discrimination
MFN TreatmentNo discrimination among the foreign
services or service suppliers of Members
Moreover...MFN applies whether or not a commitments has made on telecom in its schedule !
In telecom, MFN is particularly important in privatization, licensing or tendering
GATS Art. II
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Non-discrimination
National TreatmentEach Member shall accord to foreign services and services suppliers treatment no less favorable than that it accords to its own like services and service suppliers
GATS Art. XVII
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National Treatmentno discrimination against foreign services or service suppliers compared with domestic ones applies to any degree of discrimination in all types of measuresno discrimination on a de jure or de facto basis
In Schedules, “limitations” can allow preferences to domestic services or suppliers but, national treatment departures are not common in telecom commitments
GATS Art. XVII
Non-discrimination
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Access and use
ensure that any service supplier ... is accorded access to and use of [PTTNS] on reasonable and non-discriminatory* terms and conditions, for the supply of a service in its Schedule
*"non-discriminatory" is understood to refer to most-favoured-nation and national treatment ... as well as ... sector-specific usage ... "terms and conditions no less favourable than those accorded to any other user of like [PTTNS] under like circumstances"
Non-discriminationIn telecom ...
Annex on Telecoms, Sec. 5(a)
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Interconnection with a major supplier will be ensured ...
• under non-discriminatory terms, conditions ... and rates
• and of a quality no less favourable than that provided for its own like services or for like services of non-affiliated service suppliers or for its subsidiaries or other affiliates;...
Reference Paper, Para. 2.2(a)
Non-discriminationIn telecom ...
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Universal service
Such obligations will not be regarded as anti-competitive per se,
provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary...
Reference Paper, Para. 3
Non-discriminationIn telecom ...
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Allocation & use of scarce resources
Procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, will be carried out in an objective, timely, transparent and non-discriminatory manner.
Reference Paper Para. 6
Non-discriminationIn telecom ...
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Reasonableness
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Core obligation
Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Reasonableness
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Access and use
ensure that any service supplier ... is accorded access to and use of [PTTNS] on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule
Annex on Telecoms, Sec. 5(a)
ReasonablenessIn telecom
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Ensure interconnection is provided ...
... in a timely fashion, on terms, conditions (including technical standards & specifications) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, ...
Reference paper, Para. 2.2(b)
ReasonablenessIn telecom
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Interconnection Dispute SettlementA service supplier ... will have recourse, either:
• at any time or
• after a reasonable period of time ...
to an independent domestic body... to resolve disputes regarding appropriate terms, conditions and rates for interconnection within a reasonable period of time ...
Reference paper, Para. 2.5
ReasonablenessIn telecom
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Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Define it?
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"measure" means any measure by a Member,
. . . a law, regulation, rule, procedure, decision, administrative action, or any other form
GATS Art. XXVIII(a)
“measures”?
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Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Define it?
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Includes measures related to
• purchase, payment or use of a service
• access to and use of, in connection with the supply of a service, services required to be offered to the public generally
• the presence, including commercial presence, of persons of a Member for the supply of a service in the territory of another Member
GATS Art. XXVIII(c)
“affecting trade in services”?
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“supply of a service” includes
– production
– distribution
– marketing
– sale
– delivery
GATS Art. XXVIII(b)
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Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Define it?
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• to manage or supervise the execution of
• carry out, govern, render
“administer”?
Merriam-Webster Online
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The core obligation concerns
the manner in which measures are administered or implemented...
but not the nature or content of the measures themselves ... other obligations may apply in this respect
“administer”?
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Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Define it?
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• not extreme or excessive
• having a rational ground or motive
• logical, sensible, sound
“Reasonable”
Merriam-Webster Online
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Precedent: Panel Reports
– appropriate or suitable to the circumstances or purpose
– Flexibility and balance are also part of the notion of "reasonable"
“Reasonable”
Report of the Panel, Mexico – Measuresaffecting Telecommunications Services
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Precedent: Panel Reports The word 'reasonable' implies a degree of flexibility that
involves consideration of all of the circumstances of a particular case. What is 'reasonable' in one set of circumstances may prove to be less than 'reasonable' in different circumstances. ...
In sum, a "reasonable period" must be interpreted consistently with the notions of flexibility and balance that are inherent in the concept of "reasonableness", and in a manner that allows for account to be taken of the particular circumstances of each case.
“Reasonable”
Appellate Body Report, US – Hot-Rolled Steel
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ObjectiveImpartial Timely
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Ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner
GATS Art. VI:1
Define it?
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• expressing or dealing with facts or conditions as perceived without distortion
• reducing subjective factors to a minimum
• fair, equitable, impartial, nondiscriminatory, unbiased,
“Objective”
Merriam-Webster Online
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• treating or affecting all
equally
• fair, equal, equitable, just
• nondiscriminatory, objective, unbiased
“Impartial”
Merriam-Webster Online
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Administrative appeals maintain or institute procedures for the prompt review of, and where
justified, appropriate remedies for, administrative decisions
Where such procedures are not independent of the agency entrusted with the decision concerned ...ensure that the procedures in fact provide for an objective and impartial review
GATS Art. VI:2(a)
Objective & impartial
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The decisions of and procedures used by regulators shall be impartial with respect to all market participants
Reference Paper, Para. 5
Impartiality in Telecom ...
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• Each Member shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application... (Art III:1)
• Where authorization is required ... within a reasonable period of time ... inform the applicant of the decision ... (Art VI:3)
• At the request of the applicant, ... without undue delay, information concerning the status of the application. (Art VI:3)
Timely?
GATS Articles
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Timely?
Reference Paper ---
Ensure interconnection is provided ...
... in a timely fashion, on terms, conditions ... and cost-oriented rates that are transparent, reasonable ...
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Interconnection Dispute SettlementA service supplier ... will have recourse, either:
• at any time or
• after a reasonable period of time ...
to an independent domestic body... to resolve disputes regarding appropriate terms, conditions and rates for interconnection within a reasonable period of time ...
Reference paper, Para. 2.5
Timely?
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Domestic Regulation Work Program
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A GATS Work Program is underway to ensure that Qualifications, technical standards, &
licensing
do not constitute unnecessary barriers to trade
GATS Art. VI:4
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Three principles guiding the work programSuch requirements should be ...
• based on objective & transparent criteria
• not more burdensome than necessary
• and that licensing procedures, not in themselves a restriction on the supply of the service
GATS Art. VI:4
Domestic Regulation:Principles
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Qualifications - technical standards - licensing
Pending results of the work program, Members cannot apply requirements that nullify or impair commitments in a manner which could not reasonably have been expected when commitments were made
This means: NEW requirements and related laws and regulations must comply with principles of the work program
When was the last time you revised your telecom laws or regulations?
GATS Art. VI:5
A “standstill”
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Qualifications - technical standards – licensing
• based on objective & transparent criteria e.g. standards & criteria relate to competence and ability to supply the service
• not more burdensome than necessary e.g. standards and criteria relate ensuring the quality of the service
• licensing procedures not a restriction on the supply of the service e.g. streamlined or simplified procedures
GATS Art. VI:4
The 3 principles
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Qualifications - technical standards – licensing
• based on objective & transparent criteria ... QUALITATIVE
• not more burdensome than necessary ... QUALITATIVE ... LEAST BURDENSOME ... PROPORTIONATE TO THE OBJECTIVE
• licensing procedures not a restriction on the supply of the service e.g. ... LEAST TRADE RESTRICTIVE
GATS Art. VI:4
In a nutshell ...
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Necessary
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Necessity?
• not constitute unnecessary barriers to trade (VI:4)
• not more burdensome than necessary (VI:4(b))
• necessary to protect public morals or to maintain public order; ... to protect human, animal or plant life or health; ... to secure compliance with laws or regulations (XIV)
GATS Articles
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Necessity?
...ensure that no condition is imposed on access to and use of public telecommunications transport networks and services other than as necessary
...
Annex on Telecoms, Sec. 5(e)
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Necessity?
Universal service Such obligations will not be regarded as anti-
competitive per se,
provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary...
Reference Paper Sec. 3
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Necessity “test”? ... may import absolute physical necessity or
inevitability, or ... that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought
...can refer to a range of degrees of necessity, depending on the context, and the object and purpose of the provision in which it is used
... can be understood to mean "indispensable" to achieving a policy goal; [or] ... taken to mean simply "making a contribution to" a policy goal [*]
Report of the Panel, Mexico – Measuresaffecting Telecommunications Services*Appellate Body Report, Korea – Various Measures on Beef
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Necessity?
• “legitimate” policy objectives?
• “proportionality”?
• least trade restrictive measures available to achieve the desired policy objective?
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Policy objectivesEnsure no condition is imposed on access & use
other than as necessary
• to safeguard public service responsibilities• to protect technical integrity • to ensure that services supplied are permitted
pursuant to commitments
Also relevant to licensing & technical standards?Does this also help shed light on “reasonableness”?
Annex on Telecoms, Para 5(e)
Necessity & Reasonablenessin Telecom
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Who, how & when
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Independent regulator
The regulatory body is separate from, and not accountable to, any supplier of basic telecommunications services
Who?
Reference Paper, para. 5
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How?
Independence of the regulator
• Clear & adequate authority & powers?
• Selection & appointment mechanisms?
• Funding mechanisms?
• Legal mechanisms?
GATS leaves the decisions on these issues to individual governments
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How?To achieve “reasonable” regulationMaintain independence of regulatory
authorities (legal and actual)
Give regulator adequate enforcement authority & powers
Maintain clear goals & objectivesAlways question the need for a
regulation or requirement
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Always !
When?