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Global and European Constraints Upon National Right to Regulate: The Services Sector

This volume brings together research aimed at shedding light on a general problem, by focusing specifically on the services sector. In the WTO system, the services sector is regulated by the General Agreement on Trade in Services (GATS); in the European system, it is regulated by a broad and complex body of rules, combining judge-made principles with those embodied in the secondary legislation, which codifies and applies these principles to different regulated sectors. The general problem at the core of this study stems from the difficulty in striking a balance between two important needs. One the one hand, there is the need to recognise national authorities' right to autonomously regulate and govern in their own territory. On the other hand, there is the need to limit this power of autonomous regulation, mainly to protect the right of foreign economic operators to access the national market and function in conditions of equality with respect to all other operators. This problem is addressed from the particular perspective of administrative law. The premise underlying the various contributions is that supranational (global and European) law constrains domestic regulation (and domestic administrations) largely through techniques and procedures drawn from administrative law. Sovereignty-limiting procedures developed by national legal systems in order to protect citizens have been readapted by supranational public powers to protect the rights of foreign economic operators and to realise the goal of market integration. This administrative law perspective also gives shape to the structure of this volume, which is divided into three thematic areas. Each area corresponds to a category of constraints imposed by supranational administrative law upon States' right to regulate. Keywords: wto, european union, administrative law, services

US—India Visa Fee Controversy before the WTO: A Migration-Mobility Nexus for the WTO?

This is more about the outrageous DS-503 WTO dispute case that would allow unlimited guest workers to be imported into the US and other countries by foreign corporations, allowing them to do an end run around wage and labor laws and possibly ending the middle class most of us grew up with, and decent work for decent wages forever, possibly as soon as next year.

Bernie Sanders should not drop out for a very simple reason. Doing so would be abandoning us to the "mercy" of a merciless and evil 32 year old scheme to turn our democracy and our world's present and future over to corporations and the oligarchs that run them, that most Americans would consider to be an unspeakable crime, literally, if they knew about it. But we don't.

Decades ago we were consigned to an unspeakable fate by the signing of certain "agreements" which nobody would have agreed with. Under a pretext of trade, they and their chilling effects on our regulatory freedom have been intentionally hidden from us.

Achmea search on italaw_com

The Achmea case shows how a small country that, while part of a country, Czechoslovakia, that did/does not exist any more mistakenly signed a trade deal that was highly unfavorable to their ability to determine their own health care through voting. When the Czech and Slovak nations split, both countries inherited these bad deals between powerful and legally savvy Western European countries rushing to take advantage of the naivete of the Eastern Europeans in matters of trade, after communism fell. (this happened all throughout eastern Europe in a problem that was collectively called the IntraEUBITS. ) The case also spotlights the destruction of democracy by ISDS because after voting in a landslide for single payer in 2006 the country was immediately sued by a health insurer for the tort of "indirect exxpropriation" of "their property" (the policy space was treated like a piece of property) in an ISDS case. Notable for many reasons, particularly to me because in the end (Slovakia eventually won on a EU-specific technical issue) the EU high court did NOT touch what I consider to be the core issue, whether countries (in this case EU Member States) have the right to regulate, especially important in life and death issues like health care. The case could have decided that but did not, leaving that all important issue alone. In fact, if one looks at the later documents and the legal articles on it later on the health insurance versus single payer issue is almost never mentioned. Showing how out of touch the international law community in Europe is with the common peoples needs, among other things. Something like it could easily happen here - Look at what happened to South Africa and it's NHI, for example. South Africa voted for NHI a long time ago but it's voters wishes have been frustrated by GATS, and politicians have not been straightforward with the country about why, similar to the US, GATS has become a mother lode of politician dishonesty that will cause endless corruption and lock in as long as the country remains bound by it. In South Africa's case, GATS is also a binding but little known legacy of the apartheid regime that continues to frustrate the hopes of South Africans for change.

Troubled Relationships under the GATS: Tensions between Market Access (Article XVI), National Treatment (Article XVII), and Domestic Regulation (Article VI)

"The General Agreement on Trade in Services (GATS) was adopted in order to establish meaningful liberalization rules, while preserving the right of Members to regulate. To that end, three provisions form the centerpiece of liberalization: market access (Article XVI GATS), national treatment (Article XVII GATS), and domestic regulation (Article VI GATS). Although these provisions contain different obligations, in certain conditions they can overlap. How this issue is resolved could undermine the delicate balance between liberalization and the right to regulate. As the GATS provides no guidance, the task of determining the applicable rules has been delegated to the World Trade Organization (WTO) adjudicating bodies. This paper examines how the three provisions have been interpreted, and analyzes the most applicable way to address the diversity of barriers to trade in services."

Industry Lobbyists Gloss Over Red Flags: Trade and Public Policy Expert Lori Wallach's Testimony to the European Union

LORI WALLACH's EXPERT TESTIMONY TO THE EU: GOOD LEGISLATORS ARE BEING DECEIVED BY INSIDER BAD APPLE LEGISLATORS AND LOBBYISTS TO THINK THEY STILL HAVE POWER, THAT THEY DON'T, THAT HAS BEEN STOLEN FROM THEM. This is why Biden will veto Medicare For All, as HE IS ONE OF THE INSIDER BAD APPLES. Wallach:"Indeed, in parliaments around the world, many legislators consider that service sector policy – how to ensure that residents have health care, safe water, affordable electricity and gas and quality education – is within their jurisdiction rather than subject to distant “trade” negotiations. And, to the extent that most legislators are even aware of the negotiations now underway at the WTO on the GATS, their information largely comes from the perspective of service sector businesses who view the negotiations as a tool to go on the offensive to seek service sector business opportunities in other countries."

Trilemma

The trilemma of hyper-globalization.

Book: Blame It On the WTO: A Human Rights Critique

by Sarah Joseph 365 pages Oxford University Press, Oxford When the World Trade Organisation (WTO) was established in 1995, few human rights lawyers at the time realized the significance of this event for their discipline. In part, this may have been because the creation of the WTO followed more than a decade of neoliberal policies characterized by deregulation and the removal of barriers to trade and investment in many regions. Although it strengthened the system originally established under the General Agreement on Tariffs and Trade in 1947, the WTO was not seen to represent a seismic shift: it was the final stage of a gradual evolution, rather than the beginning of something radically new... The relative indifference of human rights lawyers also stemmed from a lack of understanding of the consequences of this ambitious overhaul of the global trade system. The WTO was deliberately placed outside the remit of the United Nations. With its establishment, the international trade system included for the first time a dispute settlement mechanism of a quasi-judicial nature, binding upon the WTO Members, and which could allow economic sanctions to be imposed on States that failed to comply with the disciplines imposed on them. Indeed, in retrospect, it is this aspect of the WTO Agreement that appears both the most novel and that has the most far-reaching consequences. Most notably, it created an imbalance between the commitments of States under the WTO framework and their other international obligations, including those under human rights treaties: should conflicts emerge between the two sets of obligations, States may be tempted systematically to prioritize their duties under the WTO, because of the sanctions attached to non-compliance, leaving aside the comparatively ‘softer’ commitments made under human rights treaties. As this important book by Sarah Joseph shows, things are now changing. The problems arising from the fragmentation of international law are increasingly being acknowledged, and solutions are being explored to overcome them. Due to the ‘special nature’ of human rights treaties, which are irreducible to exchanges of undertakings between States, merely to state that these treaties are paramount, will not suffice. We need to work towards practical ways of avoiding conflicts whenever possible, and of solving conflicts when they emerge, in ways that do not lead to the sacrifice of human rights on the altar of increased trade, even for the sake of economic growth.

TISA - backdoor services liberalisation on a global level!

The Trade in Services Agreement (TISA) currently under negotiation on the side-line of the World Trade Organization (WTO) poses significant deregulatory threats for the majority of services sectors. International trade in services is dealt with by the General Agreement on Trade in Services (GATS) and its annexes. Each WTO country so far autonomously decides which sectors are to be opened up to cross-border competition. Services sectors liberalisation is carried out once governments gave their explicit agreement to do so (positive lists). TISA intends to reverse this logic and implement a negative listing of liberalisation commitments. Only explicitly targeted sectors in the agreement would not be subject to further liberalisation. This poses significant risks of liberalising all services sectors of the economy unless explicitly exempted from the agreement. TISA would contain “Standstill” and “Ratchet” clauses. Standstill clauses effectively freeze the degrees of regulation in particular sectors and countries are no longer free to implement more strident regulatory provisions. A recently leaked text showed that the financial services industry, through TISA, intends to freeze international financial regulatory efforts by setting a minimum regulatory floor which could not be subsequently superseded by any government wishing so. Ratchet clauses effectively impede government to reverse achieved liberalisation floors. Once a sector is liberalised, there cannot be a turning back. These clauses mean that governments will no longer be able to challenge decisions and choices made by previous governments. The combination of the ratchet and standstill clauses renders the reversal of liberalisation levels impossible. Additionally, TISA could prescribe necessity tests for regulatory measures. Governments would have to prove the necessity of a regulatory instrument before implementing it. For example, in a discussion of universal coverage, a Government would have to prove the necessity of re-regulating already privatised services such as postal services.

Plan B: Declaration For a Democratic Rebellion in Europe

Democratic Europeans are fighting back against state capture: "A movement to place human rights, civil, political, social, economic, cultural and democratic rights, at the heart of the european project, as an intrinsic part of democracy."

"Achmea: The Beginning of the End for ISDS in and with Europe?"

"The Achmea case essentially concerned a preliminary reference by the German Federal Court of Justice over whether EU law precluded the application of an arbitration clause in an IIA between EU member states. Slovakia had challenged before German courts the jurisdiction of an investment tribunal constituted under the Dutch–Slovak bilateral investment treaty (BIT). A Dutch investor (Achmea) had seized that investment tribunal over a partial reversal of the Slovak government’s decision in 2004 to privatize the health insurance market. In 2007 Slovakia had prohibited the distribution of profits generated by private health insurance activities. The investment tribunal considered this a breach of the BIT and awarded Achmea damages of EUR 22.1 million."

Global Trade and Public Health

"Global trade and international trade agreements have transformed the capacity of governments to monitor and to protect public health, to regulate occupational and environmental health conditions and food products, and to ensure affordable access to medications". (This basically means they have stolen the right to regulate, or are in the process of stealing it.)

The General Agreement On Trade In Services: Implications For Health Policymakers (Health Affairs)

The General Agreement on Trade in Services (GATS), created under the auspices of the World Trade Organization, aims to regulate measures affecting international trade in services—including health services such as health insurance, hospital services, telemedicine, and acquisition of medical treatment abroad. The agreement has been the subject of great controversy, for it may affect the freedom with which countries can change the shape of their domestic health care systems. We explain the rationale behind the agreement and discuss its scope. We also address the major controversies surrounding the GATS and their implications for the U.S. health care system

The Scope of GATS and of Its Obligations by Bregt Natens, Jan Wouters

Bregt Natens, Jan Wouters - KU Leuven - Leuven Centre for Global Governance Studies Date Written: August 1, 2013 Abstract The GATS preamble already highlights the inevitable conflict between on the one hand achieving progressively higher levels of liberalization of trade in services in order to expand trade in services and promote growth, and on the other hand the right to introduce new regulation to meet national policy objectives. Hence, it was clear from the outset that the balance between trade liberalisation and domestic regulatory autonomy would be key in interpreting the constructively ambiguous GATS. The outcome of this exercise depends on three factors: the interpretation of (i) GATS’ overarching objectives, (ii) of the general scope of GATS and of the obligations arising from it (and the exceptions to them) and (iii) of the inherent individual flexibility of GATS. Whilst also touching on the first, this contribution mainly focuses on the second factor by addressing the scope of GATS, of its unconditional obligations, of obligations applying to sectors for which specific commitments have been scheduled and of obligations in GATS Annexes. Additionally, it provides an overview of the structure of GATS obligations. The third factor is mainly addressed throughout textboxes which provide an illustrative insight into how the European Union has used the inherent GATS flexibility to shape its obligations. Keywords: WTO, World Trade Organization, GATS, General Agreement on Trade in Services, services, scope, obligations, governmental authority exception

GATS Backgrounder from Public Citizen (2005)

“Governments are free in principle to pursue any national policy objectives provided the relevant measures are compatible with the GATS.” –WTO, Oct. 1999 “GATS provides guarantees over a much wider field of regulation and law than the GATT; the right of establishment and the obligation to treat foreign services suppliers fairly and objectively in all relevant areas of domestic regulation extend the reach of the Agreement into areas never before recognized as trade policy.” Good intro to/overview of GATS-

Ellen Gould discusses GATS on Talking Stick TV.

Video - Ellen Gould is a trade expert whose insight here is quite accurate. See what she tells us here about domestic regulations, technical standrds, licensing, medical standards, everything. Lots of info on what they want to do with healthcare. The WTO could sanction us if we wanted our doctors to meet higher standards than those in the developing countries. (around 25:00) The WTO also wants us to allow for profit offshoring of poor patients. Which would be subject to the same problems as the for profit system does now, except likely worse, with less accountability.

GATS and Financial Services Deregulation by Patricia Arnold

Medicare, Social Security and other governmentally subsidized financial services are put in grave danger by the GATS - This paper by a noted professor in accounting who has written a great deal of highly readable material on the WTO and its interaction with financial regulation is a short and concise intro to many of the major issues, particularly the threats GATS poses to Social Security and Medicare if those areas are allowed to compete with commercial banks or insurers. Caution is needed because millions could see huge changes in their only retirement benefits just as they were needed the most if Social Security and/or Medicare lose their protection from GATS rules, which is likely if current proposals are implemented,- see the Annex on Financial Services.

GATS and Public Service Systems

This is a must-read article as its by far the most concise and understandable explanation of the "governmental authority exception" an all important "two-pronged test" or definition, that defines the scope of what is allowed to be a public service and what is not, in the GATS agreement. In other words, what is subject to privatization rules, and what isn't. This definition is also borrowed or imported, in the computer programming sense, "as is" into hundreds of other trade agreements all around the globe. So this essay is extremely useful in understanding which healthcare or higher education proposals could work (and which ones would be subjected to a death of a thousand cuts, and couldn't) for example. The essay was originally written and published by the government of British Columbia province in Canada.

Putting Health First - Canadian Centre for Policy Alternatives

Canadian Health Care Reform, Trade Treaties and Foreign Policy - this essay describes the traps in the GATS agreement for Canadian health care, and it also would totally apply to a hypothetical US healthcare plan if it had prexisted the creation of the WTO. it also discusses 'carve outs' and why they are needed by Canada to protect their Medicare (public health care) from Trade Agreements put forward by countries like the US that try to destroy, and privatize them. Note: the situation of the Canadian system is different than the UK's as Canadian Healthcare is exempt from GATS, and the UK's public option the NHS like US's optional short term public experiments like the ACA are subject to the GATS privatization agreements progressive liberalization ratchet, etc. requirements. Unfortunately.

Public Citizen: Health Care Memo

"...However, many of today’s international trade agreements establish binding obligations constraining federal, state and local government policy and actions in numerous service sectors, including health services. These rules are not limited to trade in services across borders, but also constrain government regulation of foreign service sector firms operating within the United States. As a result, today’s “trade” pacts are delving deeply into domestic regulatory issues that have little or nothing to do with the traditional concept of trade between nations".

Public Citizen: Threats to Health Care Policy

"The WTO’s GATS delves into “areas never before recognized as trade policy"... "The GATS represents a 180-degree turn from the U.S. approach to health care policy − away from regulating industries for the benefit of the consumer, and towards regulating governments for the benefit of multinational firms and industries".

Lori Wallach discusses 'standstill' in this short video on Democracy Now

Note: THIS ALSO APPLIES TO TODAY'S US HEALTH INSURANCE, because it is a financial service, and IMPORTANT- people will always try to confuse you saying (GATS or) TISA does not apply to "public services" HA! Let me clue you in, that's an old GATS trick. THAT TERM DOES NOT APPLY TO ANY US PUBLIC SERVICE I CAN THINK OF, and the only UNDER ANY GATS DEFINITION, SO NOT EXEMPT. It doesn't even apply to the UK's NHS, although their government claims it does. It should apply to Canada. Because they don't sell any health insurance that competes with their Medicare, and it also predated the WTO's creation. Just them. See our info on "government authority exclusion" - Sorry! - The Trade in Services Agreement extends the WTO GATS agreement and does so in a way that attempts to legitimize it retrospectively, it seems. IMPORTANT!- It even uses the (1990s) dates from the GATS agreement. Could it really act as a standstill effective in the 1990s exposing later attempts at regulation to challenge and roll back? It seems as if that is what is happening. (speculation on my part) Why?