The Conflict Between Market Access And National Treatment In GATS

In this paper, combined with the China--Electronic Payment Services Panel Report, the conflicts were studied under GATS XVI market access principles and XVII national treatment principles. Market access and national treatment in the service trade are specific commitment obligations of Member’s, and the differences and relationships between them had been much frequently discussed in the context of GATS. Although the definition of national treatment and market access are not the same, whether discriminatory measures are only imposed to foreign service and its suppliers(mainly embodied restrictions upon national treatment), or existing restrictions upon service and its suppliers of domestic and foreign(mainly embodied conditions of market access), they are likely to impede in Services Trade Liberalization. Due to the intangibility of Services Trade, there are overlap and confusion between them in practical application, which leads to some conflicts. Thus, the major research objects are contents of conflicts, forms of conflicts, the specific embodiment in the case of China--Electronic Payment Services and the resolution of this inconsistencies. This paper is divided into five parts, the major contents can be summarized as:The first chapter expounds the basic theory of GATS market access and national treatment, theoretically studying the market access and national treatment of GATS 2from aspects of definition, rules, intension, characteristic and function. Market access in GATS XVI mainly means nondiscrimination to the related restrictions that a government imposed upon a possible foreign product or service into its domestic market; national treatment in GATS XVII mainly means that a Member treats other members’ services and service suppliers the same as the treatment for domestic similar services and service suppliers.The second chapter mainly analyzes the contents of conflicts between market access and national treatment in GATS, including theoretical conflict and practical conflict. Theoretical conflict mainly lies in the confusion of scope of boundaries in texts, and its origin is further analyzed; practical conflict mainly lies in the conflict of the scope of obligation application and the overlap of their specific schedules. On the overlap of specific schedules, the list forms of national treatment and market access and the methods of list when overlapping are recommended.The third chapter is studying on market access and national treatment in GATS by cases, combined with China—Electronic Payment Services. Firstly, this paper briefly introduces the background, the main arguments and the report of the case. Secondly, as for the Panel Report, detailed analysis was carried out on arguments report, including such three aspects: the confused structural relationship of them, relationship of Chinese reservation on market access and national treatment entry, and Chinese violation of the Schedule. Thereby, the version and decision of the conflict of the Panel are analyzed.The fourth chapter proposed solutions of the conflicts of market access and national treatment. Firstly, distinguishing schedule interpretation rules and substantive scope of regulations could help discern the scope of regulations from the Panel’s suggestion. Secondly, evaluate rules for consistency with the GATS text and with Members’ expectations, according different principles, including entry in market access column prevails, entry in national treatment column prevails, or determining according to the specific circumstances of claim or restriction trade liberalization.The fifth chapter makes a prospect and consideration on reconciling the conflicts between GATS market access and national treatment conflict, including summary, lessons and inspiration of the China—Electronic Payment Services. Facing the similar conflicts in the future, the Panel should be more reasonable explanation and ruling. China should learn lessons from the China—Electronic Payment Services, perfect and complete the contents of Schedule, accelerate the formulation of laws and regulations, and play an active role as a GATS Member. At the end of the paper, the Trade in Service Agreement(TISA) that China had participated in and negotiated in 2013 is prospected.