gats & telecom reasonable regulation. right to regulate members,... recognizing the right of...

GATS & Telecom

Reasonable regulation

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

Reasonable Regulation

What is “reasonable”?

Transparent Non-discriminatory Objective Impartial Timely Least burdensome Necessary Least (trade) restrictive

Non-discrimination

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

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

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

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

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)

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)


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


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


Reasonableness

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

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

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)


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



GATS Art. VI:1

Define it?

"measure" means any measure by a Member,

. . . a law, regulation, rule, procedure, decision, administrative action, or any other form

GATS Art. XXVIII(a)

“measures”?


GATS Art. VI:1

Define it?

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”?

“supply of a service” includes

– production

– distribution

– marketing

– sale

– delivery

GATS Art. XXVIII(b)


GATS Art. VI:1

Define it?

• to manage or supervise the execution of

• carry out, govern, render

“administer”?

Merriam-Webster Online

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”?


GATS Art. VI:1

Define it?

• not extreme or excessive

• having a rational ground or motive

• logical, sensible, sound

“Reasonable”


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

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

ObjectiveImpartial Timely


GATS Art. VI:1

Define it?

• expressing or dealing with facts or conditions as perceived without distortion

• reducing subjective factors to a minimum

• fair, equitable, impartial, nondiscriminatory, unbiased,

“Objective”


• treating or affecting all

equally

• fair, equal, equitable, just

• nondiscriminatory, objective, unbiased

“Impartial”


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

The decisions of and procedures used by regulators shall be impartial with respect to all market participants

Reference Paper, Para. 5

Impartiality in Telecom ...

• 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

Timely?

Reference Paper ---

Ensure interconnection is provided ...

... in a timely fashion, on terms, conditions ... and cost-oriented rates that are transparent, reasonable ...

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?

Domestic Regulation Work Program

A GATS Work Program is underway to ensure that Qualifications, technical standards, &

licensing

do not constitute unnecessary barriers to trade

GATS Art. VI:4

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

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”

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

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 ...

Necessary

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

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)

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

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

Necessity?

• “legitimate” policy objectives?

• “proportionality”?

• least trade restrictive measures available to achieve the desired policy objective?

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

Who, how & when

Independent regulator

The regulatory body is separate from, and not accountable to, any supplier of basic telecommunications services

Who?

Reference Paper, para. 5

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

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

Always !

When?

gats & telecom reasonable regulation. right to regulate members,... recognizing the right of...

Documents

telecom slide

nondiscrimination slide

reasonableness slide

gats preamble slide

service suppliers gats

services suppliers treatment

trade restrictive slide

service access