GATS and the Regulation of International Trade in Services: Some thoughts on the concept of ‘likeness’ in the GATS

Introduction The concept of ‘like services and service suppliers’ under the General Agreement on Trade in Services (GATS) is still very much uncharted territory. One explanation may be the limited jurisprudence – only five disputes – existing so far under the GATS. In two disputes, the Panels and the Appellate Body made findings with respect to national treatment, but likeness was addressed in a very cursory manner. Moreover, in WTO services bodies, Members have shown little interest in discussing these issues in abstracto and have expressed a preference for leaving it to the Panels and the Appellate Body to determine likeness on a case-by-case basis, as has been done under the GATT. There is perhaps one point on which there is general agreement: that the application of the national treatment obligation and the determination of likeness give rise to a wider range of questions – and uncertainties – under the GATS than under the GATT. The intangibility of services, the difficulty of drawing a line between the product and the producer, the existence of four modes of supply, the combined reference to services and service suppliers, the lack of a detailed nomenclature and the customised nature of many transactions are some of the factors that complicate the task of establishing likeness in services trade. In brief, ‘the concept of likeness… is more elusive in services than in goods’.