PUBLIC SERVICES AND THE SCOPE OF THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS)

The document analyzes the ambiguity of GATS Article I:3(b)(c), which excludes services supplied in the exercise of governmental authority if they are neither supplied on a commercial basis nor in competition. The author argues that while a broad interpretation of GATS coverage is legally possible under the Vienna Convention on the Law of Treaties, restrictive or effective interpretative principles could narrow this scope to protect national policy objectives. Because the WTO Secretariat and members lack a coherent consensus on these definitions, the paper suggests 'legislative' remedies, such as authoritative interpretations or amendments, to provide legal certainty for public services.

• There is no agreed or coherent understanding of Article I:3(b)(c) GATS among WTO Members or within the WTO Secretariat, as evidenced by contradictory positions in Secretariat publications.
• Under Article I:3(c), a service is excluded from GATS only if it meets two cumulative conditions: it must be supplied neither on a commercial basis nor in competition with one or more service suppliers.
• A broad interpretation of 'commercial basis'—encompassing any service not supplied free of charge—and a broad view of 'competition' would result in most public services being covered by GATS.
• The author argues that the principle of restrictive interpretation (in dubio mitius) could be used to narrow GATS scope by favoring the meaning that involves fewer restrictions on state sovereignty.
• The principle of effective interpretation (effet utile) could potentially limit GATS scope by balancing trade liberalization with the preambular goal of recognizing the right of Members to regulate to meet national policy objectives.
• The WTO Appellate Body's comment in the Bananas-case suggests a tendency toward broad coverage of the GATS.
• The author recommends 'legislative' steps to narrow the scope of GATS rather than relying on dispute settlement, suggesting an authoritative interpretation by the Ministerial Conference or General Council as the most viable policy option.

APA

Krajewski, M. (2001). PUBLIC SERVICES AND THE SCOPE OF THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS). Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2015/03/PublicServicesScope.pdf

Chicago

Krajewski, Markus. PUBLIC SERVICES AND THE SCOPE OF THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS). Center for International Environmental Law, 2001. https://www.ciel.org/wp-content/uploads/2015/03/PublicServicesScope.pdf.

Wikipedia

{{cite report |last1=Krajewski |first1=Markus |title=PUBLIC SERVICES AND THE SCOPE OF THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS) |publisher=Center for International Environmental Law |date=May 2001 |url=https://www.ciel.org/wp-content/uploads/2015/03/PublicServicesScope.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{krajewski2001public, author = {Krajewski, Markus}, title = {{PUBLIC SERVICES AND THE SCOPE OF THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS)}}, institution = {Center for International Environmental Law}, year = {2001}, month = may, url = {https://www.ciel.org/wp-content/uploads/2015/03/PublicServicesScope.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }