Proceedings of the Workshop - United Nations Office for Outer ...

186 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONregulations, on the supply o f services within theirterritories in order to meet national policy objectives.The GATS consists o f six parts and includesseveral annexes, including, inter alia, on air transportservices, financial services, negotiations on maritimetransport services, telecommunications, andnegotiations on basic telecommunications.Part I lays down the scope and definition o f theagreement. It applies to measures by Members affectingtrade in services (Art. I (1)) Trade in services is definedas the supply of a service through four modes ofdelivery: cross-border, movement o f consumers,commercial presence and movement o f personnel. (Art.I (2)). In practice, cross-border supply o f services (i.e.,database access) and commercial presence are the mostimportant for telecommunications services. Measuresby Members include not only measures taken bycentral, regional or local governments and authorities,but also by non-governmental bodies in the exercise ofdelegated powers (Art. I (3)(a)). However, the termservices excludes services supplied in the exercise ofgovernmental authority, which, in essence, is defined byits non-commercial, non-competitive nature (Art. I(3)(b) & (c).Part II deals with General Obligations andDisciplines containing, inter alia, traditional GATTprinciples,such as the ”most-favoured-nation” (MFN)clause and the transparency of rules and procedures(Arts. II and III), to ensure equity in treatment of allservice providers. The MFN principle stipulates thattrade must be conducted on the basis o f non-discrimination.Liberal rules agreed between any two GATTsignatories must be extended immediately andunconditionally to all others (Art. II). MFN treatmentmust be granted without demanding a consideration inthe form o f additional advantages or reciprocity. -However, if no foreign service provider is allowed toenter a national market, then the MFN clause has nopractical effect. Measures inconsistent with the MFNprinciple may be maintained if such a measure is listedin, and meets the conditions of, the Annex on Article IIExemptions (Art. II (2)).Another interesting provision concerns monopoliesand exclusive service providers. If a member statesmonopoly supplier competes, either directly or throughan affiliated company, in the supply o f a service outsidethe scope of its monopoly rights and which is subject tothat Member's specific commitments, the Member shallensure that such a supplier does not abuse its monopolyposition to act in its territory in a manner inconsistentwith such commitments (Art. VIII (2). This is relevantbecause o f the possibility for monopolytelecommunications service providers to delay or denyinterconnection or access to their networks forcompetitors. Moreover, the issues o f tariffs and accesscharges are becoming increasingly important in thissector.Other Articles of Part II of the GATS deal withdisclosure o f confidential information (III bis),increasing participation of developing countries (TV),economic integration (V), labour markets integrationagreements (V bis), domestic regulation (VI),recognition (VII), business practices (EX), emergencysafeguard measures (X), payments and transfers (XI),restrictions to safeguard the balance o f payments (XII),government procurement (XIII), general exceptions(XIV), security exceptions (XIV bis) and subsidies(XV).Part III addresses specific commitments, such asmarket access and national treatment. Art. XVI (1)provides that with respect to market access through themodes of supply identified in Article I, each Membershall accord services and service suppliers o f any otherMember treatment no less favourable than that providedfor under the terms, limitations and conditions agreedand specified in its Schedule. The concept of nationaltreatment in Article XVII is closely connected to theMFN principle. It deals with discrimination againstforeign countries, whereas MFN concerns discriminationbetween foreign countries. Its intention is toprovide equal conditions o f competition, once goods orservices have crossed the border. An importantconsideration is that it is subject to existing domesticlegislation. The clause on its own is not suited toprovide access to monopolistic foreign markets.Furthermore, the national treatment principle is onlyaimed at discrimination caused by state regulations.