Papel de la Organización Mundial del Comercio

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Este artículo está tomado del ICT Regulation Toolkit Módulo 6-3-2-1


ICT Regulation Toolkit

└► Módulo 6: Aspectos Legales e Institucionales
└► Contexto Legal de la Reforma Regulatoria
└► Impacto de los Acuerdos Multilaterales y Regionales
└► Papel de la Organización Mundial del Comercio


6.3.2.1 Role of the World Trade Organization

Created in 1994 as a result of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), the World Trade Organization (WTO) is a global international trade organization that develops international commerce rules and mediates trade disputes among its members. The WTO brings together 148 members[1] that participate in negotiations and binding commitments concerning the promotion of competition and the liberalization of international trade of goods and services.

General Agreement on Trade in Services

Concluded in 1997 under the auspices of the WTO, the Fourth Protocol to the General Agreement on Trade in Services (GATS) represents one of the major steps towards liberalization of the global telecommunications marketplace and the establishment of liberalization.[2] The purpose of GATS is to facilitate liberalization of trade in services. Two types of obligations exist under GATS: (i) general obligations that apply to all members and all service sectors covered under GATS regardless of whether or not specific commitments have been made; and (ii) sector-specific commitments regarding market access and national treatment for sectors and activities that members agree to open to international trade. Under the general obligations, there are two main principles: (i) WTO member countries must afford each other most favored nation (MFN) treatment (i.e., prohibition on discrimination that requires countries to afford “treatment no less favourable than that accorded to like services and service suppliers of any other country”);[3] and (ii) countries must ensure transparency of local regulations (e.g., countries should publish measures of general application, and allow a period of public comment prior to their issuance). Sector-specific commitments are made regarding market access,[4] national treatment[5] and other additional commitments.[6] WTO members make commitments on market access and national treatment based on one of the following four modes of supply: (i) cross border supply;[7] (ii) consumption abroad;[8] (iii) commercial presence;[9] and (iv) presence of natural persons.[10] Studies show that since 1997, countries that made GATS commitments have experienced faster levels of fixed-line penetration, mobile subscribership, and telecommunications sector revenues.[11] In particular, low-income Sub-Saharan Africa countries that have scheduled commitments out-performed those that did not (see Figure 3-B).[12]


Figure 3-B: Development/Economic Impact of WTO
Figure 3-B: Development/Economic Impact of WTO


Basic Telecommunications Agreement

The series of telecommunications commitments that make up a portion of the GATS are referred to as the WTO Basic Telecommunications Agreement (BTA).[13] (See Box 3-1.) The BTA established the basis for structural reform of the telecommunications sector aimed at removing barriers to entry and competition, and the adoption by the majority of members of certain pro-competitive regulatory principles that are set out in the “Reference Paper on Regulatory Principles.”[14] These telecommunications commitments apply to basic telecommunications and certain value-added services, but not to audiovisual services. To date, 105 of the 148 WTO members have made commitments under the BTA. Ninety-eight WTO members have made specific commitments on basic telecommunications and 89 members with respect to value-added telecommunications services.[15]

ECOWAS has undertaken a Telecommunications Regulation Harmonization Project[16] aimed at designing a strategy for the harmonization of telecommunications policies in ECOWAS. To date, each ECOWAS country, with the exception of one, has commenced liberalization of the telecommunications sector and has separated postal and telecommunications operation from regulation. In addition, 11 ECOWAS countries[17] have established telecommunications regulatory authorities.[18]

As ECOWAS progresses in its harmonization efforts, some of the challenges it may face include harmonization of existing national ICT policies (e.g., regional spectrum and licensing); evolving common principles for interconnection and universal access; safeguarding the interests of citizens (e.g., control of content); and using ICTs to reduce distance barriers among communities.[19] See Box 3-3 for a description of other African regional harmonization initiatives.


Cuadro 3-1: El Sector de las Comunicaciones en el GATS
Definitions/Coverage:

Telecommunications services (covered under the BTA):

  • basic telecommunications services are public and private telecommunications services that involve end-to-end transmission of customer supplier information. These include voice telephone services, packet-switched data transmission services, circuit-switched data transmission services, telex services, telegraph services, facsimile services, and private leased circuit services.
  • value added-services are services for which suppliers enhance the form or content of the customer’s information, thereby “adding value” to the customer’s information, and include electronic mail, voice mail,

on-line information and data base retrieval, Electronic Data Interchange (EDI), enhanced/value-added facsimile services, including store and forward, and store and retrieve, code and protocol conversion, on-line information and/or data processing (including transaction processing), and other services.

Audiovisual services involve the dissemination of content, including motion picture and video tape production and distribution services, motion picture projection services, radio and television services, radio and television transmission services, and sound recording.

Key Documents:

  1. GATS (general obligations and Fourth Protocol);
  2. GATS Annex on Telecommunications;
  3. Schedules of specific commitments and exemptions (country-specific); and
  4. Reference Paper.

The purpose of GATS is not to regulate competition, but to ensure that members that have made commitments do not establish regulations that would hinder the international trade of services.

WTO membership does not entail automatic submission to the BTA as countries must expressly make commitments through their respective schedule of commitments. These schedules may contain modifications or derogations from the overall text. Members are free to include in their schedules the sectors and activities that will be covered under the commitments. Commitments are made by identifying a particular subsector in the respective schedule and therefore only the services listed in a schedule are open to international trade, subject to any limitations or conditions set forth in the applicable schedule. As a result, if a sector or activity does not appear listed in a schedule it means that a commitment has not been made regarding that sector or activity, and it is not open to international trade.[20]

Countries can make BTA commitments as part of their accession to the WTO, as part of a formal round of negotiations (e.g., the Doha round of negotiations launched in November 2001), or unilaterally. As a result of the MFN treatment imposed under GATS, a telecommunications commitment made by a WTO member benefits all members regardless of whether or not such other members have made commitments. GATS rules also apply to the provision of services by monopoly service providers, to the extent the provider has been granted special or exclusive rights to provide the service under monopoly (i.e., the rules do not apply to de facto monopolies).[21]

Telecommunications services and audiovisual services appear as different subsector classifications under the main “Communications” sector heading of the GATS Services Sector Classification List.[22] While the structure of these schedules is the same, countries were given the flexibility of creating distinctions or sub-divisions within the telecommunications sector heading (i.e., local, long distance and international; wire and radio-based; public or non-public; and resale or facilities-based services), making limitations on market access or national treatment, and in certain cases, adding technological conditions (e.g., for satellite access). As a result, the items and terms included under each classification vary among members, creating potential discrepancies in the manner in which countries classify different types of services.[23]

These commitments are important documents that establish international obligations undertaken by countries and are a clear reference for potential foreign investors on the countries’ liberalization strategy. Countries may decide to gradually open their market to competition or to take a more aggressive approach. However, they must clearly specify in their commitments where and for how long they wish to restrict their commitments.

Ghana, for example, undertook commitments aimed at phasing in competition over a given period. More specifically, Ghana committed to:[24]

  • Duopoly operators for the provision of local, domestic and international long distance services, and private leased circuit services for an exclusive five-year period, ending in 2002. Additional suppliers of local services can be licensed to supply underserved areas where duopoly operators have declined right of first refusal.
  • Full competition in data transmission, Internet and Internet access (excluding voice) and teleconferencing.
  • Mobile services (terrestrial and satellite-based) including mobile data services, fixed satellite services, paging and cellular with the reservation that cross-border voice services can only be supplied through commercial arrangements with the duopoly operators.
  • The Reference Paper on regulatory principles.

However, Ghana stated in its commitments that the government would conduct a review of its policy after the duopoly period so as to determine whether to license additional telecommunications services suppliers.

This is different from Jordan’s WTO commitment where the Government specified that no restrictions would exist after 1 January 2005. Jordan’s commitments are based on a WTO Chairman’s Note S/GBT/W/2/Rev.1 dated 16 January 1997. This Note foresees that unless otherwise noted in the sector column, any basic telecommunications service listed encompasses local, long distance, and international services for public and non- public use; that it may be provided on a facilities-basis or by resale; and that it may be provided through any means or technology (e.g., cable, wireless, or satellites).[25]

Jordan’s commitments also indicate that it has removed market access limitations on spectrum availability pursuant to another WTO Chairman’s Note S/GBT/W/3 dated 3 February 1997. This Note recognizes the right of all WTO members to exercise spectrum/frequency management that may affect the number of service suppliers provided this is done in accordance with the relevant provisions of GATS.

The effects of the BTA extend beyond the countries that have made commitments thereunder, with some countries, such as the United States, adopting parallel commitments under bilateral agreements beyond the scope of the WTO (see Box 3-2).


Cuadro 3-2: Más allá de la OMC - Esfuerzos de Armonización de EE.UU.
Given the slow progress of the Doha Round of negotiations and the uncertainty as to the treatment of certain converged services under the WTO classification framework, the United States has sought to fulfil certain of its trade objectives by means of such bilateral and regional trade agreements. As a result, numerous countries have adopted telecommunications commitments outside the scope of the WTO that are similar to, or which extend beyond, those under the BTA pursuant to these bilateral and regional free trade agreements.

In 2002, the U.S. Congress passed the Trade Promotion Authority Act allowing the executive branch to negotiate trade agreements where Congress can only vote to approve or reject the agreements, without making any modifications (this process is referred to as “fast-track authority”).[26] Within this authority is the mandate for the United States Trade Representative (USTR) to ensure that the agreements concluded foresee and prevent trade barriers in digital services, including the trade of digital services and goods (the “digital trade agenda”).[27] Under such fast-track authority and the USTR mandate, to date the United States has concluded eight free trade agreements (and is in the process of negotiating three other agreements, including the U.S.-Andean FTA with Peru, Ecuador and Colombia, and the U.S. SACU FTA, with five member countries of the Southern African Customs Union (SACU) -- Botswana, Lesotho, Namibia, South Africa and Swaziland) where countries have generally agreed to an open and competitive telecommunications market, and removing barriers to the trade of digital goods and services.[28] In broad terms, all trade commitments under the FTAs (except for few carve-outs – e.g., Costa Rica, under the CAFTA), provide for: (i) reasonable and non-discriminatory access to the networks of the signatory parties; (ii) the right of telecommunications companies to interconnect with networks in the signatory countries at nondiscriminatory, cost-based rates; (iii) non-discriminatory access to facilities, such as telephone switches and submarine cable landing stations; (iv) the ability to lease elements of telecommunications networks on non-discriminatory terms and to resell such telecommunications services; (v) the recognition by each signatory of the importance of supplying services by electronic means as a vehicle to establish a vibrant e-commerce environment; (vi) non-discriminatory treatment of digital products; and (vii) the protection of intellectual property rights. To a large extent, these principles parallel those under the WTO’s Reference Paper, but extend these obligations to digital services and goods that may not be covered under certain countries’ WTO commitments.

The United States has also used the FTA as a means to further expand the scope of WTO commitments of certain countries or to achieve some of the same objectives sought under the WTO. For example, the recently approved U.S.-Central American Free Trade Agreement (CAFTA) is directed to promote trade liberalization between the United States and Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua. Although some of the CAFTA countries are WTO members, they had not fully adopted the BTA or the WTO Information Technology Agreement. However, in signing CAFTA these countries committed to a chapter on telecommunications services that incorporates many elements of the BTA and the Reference Paper. In addition, CAFTA, which was substantially modeled after the ten-year old North American Free Trade Agreement (NAFTA), also contains a relevant section directed to the liberalization of telecommunications among the signing parties. Thus, through CAFTA, Costa Rica, for the first time made a commitment to open its market to foreign competition in Internet services, private data networks, and wireless services. CAFTA also requires the Dominican Republic, Guatemala, Honduras and Nicaragua to join the WTO ITA so that U.S. high-tech exports enter their markets duty-free.[29]

WTO Reference Paper

The Reference Paper, which consists of six principles that serve as a “checklist of ‘success’ of telecommunications reform in many countries,”[30] was conceived as a necessary instrument for the removal of regulatory barriers to market access, and its implementation is aimed at preventing anticompetitive practices by major suppliers.[31] Members may adopt the Reference Paper in whole or in part, and by doing so, they commit to maintain appropriate regulatory measures to ensure a competitive marketplace, as well as transparent and fair regulatory procedures. The six Reference Paper principles are:


  1. Competitive safeguards: Members are required to establish competitive safeguards preventing major suppliers from engaging in anticompetitive conduct. The Reference Paper does not define competitive safeguards or anticompetitive practices; this is left for each member to determine in its national legislation. However, the Reference Paper lists certain examples of anticompetitive practices including: anticompetitive cross-subsidization; use of information obtained from competitors with anticompetitive results; and withholding technical data.
  2. Interconnection: Major suppliers (i.e., those with the ability to materially affect the terms of price and supply in the market by exploiting their control over “essential facilities” or their position in the market) of members are required to provide interconnection upon request, under non-discriminatory terms and conditions, and at cost-orientated rates that are transparent and feasible.
  3. Universal service: Members have the right to define the kind of universal service obligation they wish to maintain, provided such obligations are not anticompetitive per se, and are administered in a transparent, non-discriminatory and competitively neutral manner. Universal service obligations may not create unnecessary burdens on service suppliers.
  4. Public availability of licensing criteria: To the extent a licence is required, members should make publicly available: (i) the licensing criteria and the time it will take to decide on a licence application; and (ii) the terms and conditions of individual licences.
  5. Independent regulators: Members should ensure that the regulatory authority is separate from, and not accountable to, any supplier of basic telecommunications services, and that their decisions are impartial with respect to market participants. This requirement seeks equal, transparent and objective treatment of all operators in the market.
  6. Allocation and use of scarce resources: Allocation and use of scarce resources (i.e., frequencies, numbers, and rights of way) should be carried out in an objective, timely, transparent and non-discriminatory manner, and the allocation of frequency bands should be made publicly available. Details of government-use frequencies do not have to be made publicly available.

To date, close to 90 countries have committed to adopting the Reference Paper.[32] The Reference Paper has been criticized for its general nature and the fact that it does not prescribe the manner in which these principles should be applied. However, it has provided countries with a baseline approach of what are considered the “minimum standards of international good practice.”[33] Moreover, it can be, and has already been, used as a vehicle to evaluate the appropriateness of existing measures or the lack thereof under the WTO’s dispute settlement mechanism (the decisions of which are binding upon WTO members). (See Section on “WTO Dispute Settlement Mechanism” below for a discussion on the U.S.-Mexico Panel Report.)

Annex on Telecommunications

Concluded at the Uruguay Round, the GATS Annex on Telecommunications recognizes that access to and use of public telecommunications networks are essential to the effective provision of services covered under GATS and requires WTO members to allow suppliers of scheduled services to use the “public telecommunications transport network and services” on reasonable and non-discriminatory terms.[34] This obligation extends to any kind of service sector for which a schedule has been made accepting specific market access and national treatment (e.g., value-added services, banking services, legal services, and computer services) regardless of whether the particular country has liberalized its basic telecommunications sector. As a result, the Annex on Telecommunications does not deal with market access to basic telecommunications (as this is dealt with in each member’s schedule) and does not specifically require liberalization of telecommunications services; rather it deals with the ability of service suppliers to access such services.[35] Such ability is limited by the right of the network owner to establish access and use conditions that address public service responsibilities, the protection of the technical integrity of the network or to deny use of the network for services not covered under any schedule of commitments.

Audiovisual Services

Also under the “Communications” sector list are audiovisual services (i.e., motion picture and videotape production services, motion picture projection services, radio and television services, sound recording, and others). These services are not covered under the BTA, and the national laws of each country are used to interpret the services that fall under the audiovisual subsector (e.g., for most WTO member countries, satellite services fall under broadcasting/audiovisual activities, but under U.S. legislation these are considered telecommunications services).[36]

Audiovisual services are not as liberalized as telecommunications services and many countries maintain rules prohibiting foreign ownership of broadcasters and reception of foreign satellite television programming. Some countries expect to achieve greater liberalization of these services through the Doha Round of negotiations; however, there have been challenges in achieving a unified approach since a division exists between those countries with a strong interest to export audiovisual services and those whose cultural and/or economic objectives direct them to protect their domestic industries.

New Round of Services Negotiations

WTO members commit to progressively liberalize trade in services through periodical rounds of negotiations.[37] The Doha Round of negotiations launched in 2001 includes negotiation of telecommunications services and audiovisual services, and there have been proposals to: (i) update the listing of services; (ii) negotiate an e-commerce classification; (ii) enhance provisions on regulatory independence; and (iii) limit licensing and universal services fees. Negotiations (expected to conclude in 2005) are still underway and WTO members are expected to address the following issues:[38]

  • (i) reduction of national treatment exemptions and increase of market access on basic telecommunications and value-added services, and negotiation on the coverage of new convergence services and technologies (i.e., VoIP and broadband);
  • (ii) increasing the number of countries that adhere to the Reference Paper;
  • (iii) reclassification of basic telecommunications and value-added services; and
  • (iv) recognizing the maturation of e-commerce related to market access fortelecommunications-related services that also form the basis for e-businesses, as well as those that use networks for this purpose.

Regulatory Impact of WTO commitments

WTO commitments constitute legally binding obligations on members, enforceable through the WTO’s binding dispute settlement process. As a result, the impact of WTO commitments on a country’s regulatory framework can be seen through voluntary compliance of a member’s commitments or as a result of enforcement through the WTO’s dispute settlement mechanism.

Voluntary Compliance

WTO commitments may have a greater impact on developing countries than on developed countries. For many developed countries, adoption of the GATS principles was a reinstatement of pro-competitive liberalization policies that were already in place and compliance with GATS did not require substantial legislative reform. However, for many developing countries, liberalization of their telecommunications market required certain reforms to their telecommunications legislation and structure.

GATS seeks the establishment and enforcement of a framework without creating unnecessary barriers to trade.[39] It explicitly recognizes members’ right to regulate the supply of services in order to meet national policy objectives, and therefore liberalization does not imply deregulation. One of the main objectives of GATS with respect to developing countries is to increase their participation through progressive liberalization, taking into account their development levels.[40] To achieve such liberalization and comply with GATS telecommunications commitments, many WTO members were required to modify their laws to reflect compliance with their international commitments (e.g., implementing transparent regulatory structures and procedures,establishing an independent regulator; and removing market access barriers). While GATS does not require members to privatize the incumbent operators, many countries did engage in privatization and liberalization efforts as a means to introduce competition in the market. However, even when countries have adopted the legal and structural reforms necessary to comply with their WTO commitments, effective competition and adequate enforcement of a regulatory framework may sometimes be hindered by the size of the market and the country’s lack of technical, financial, and human resources.

For example, Bangladesh has been WTO a member since its inception in 1995. Bangladesh did not expressly agree to adopt the Reference Paper, [41] but rather to review the creation of regulatory disciplines, including specific commitments to:[42]

  • issue licences to two additional fixed-line operators;
  • introduce full competition in voice and data transmission over closed user groups and Internet access services;
  • grant licences to four mobile telephone service suppliers; and
  • make no limitations on national treatment (subject to certain subsidies and tax benefits that may only be extended to national operators).

In 2001, Bangladesh approved the Telecommunications Act, establishing an independent regulator and setting the stage for telecommunications reform. Mobile licences were also issued to four companies, which has permitted growth and competition in the sector. Licences were also granted to fixed-line operators, but competition and growth in this market has been slower as a result of interconnection issues with the fixed incumbent telecommunications operator.[43] Bangladesh is expected to privatize the incumbent operator and remove additional barriers that still exist in the mobile services market (i.e., restrictions on interconnection with the incumbent operator).[44]

Also illustrative of the impact of the WTO is Uganda. Although a founding WTO member, Uganda made GATS commitments on basic telecommunications unilaterally (i.e., not as a part of formal negotiating rounds) and revised these commitments in 1999 as a result of the introduction of competition and privatization of the incumbent operator. In its schedule of specific commitments Uganda:

  • agreed to adopt the Reference Paper;
  • maintained the right of duopoly major licence holders and other pre-existing licence holders over international gateway services (including international roaming for mobile services) “according to the terms of those licences”; and
  • agreed to grant licences to three mobile carriers.

Uganda began its telecommunications liberalization process in 1994 with the introduction of competition in the mobile sector where three operators currently compete. Liberalization of the fixed-line market began in 1997 when it awarded a second licence to a fixed-line operator, granting it “shared-exclusivity” with the incumbent telecommunications operator until 2005. In 1997, Uganda issued the Telecommunications Act establishing an independent regulatory body, as well as a neutral supervisory body for the settlement of telecommunications disputes.

Other countries that were not WTO founding members, but have acceded to the WTO post BTA, have been required to undertake significant market restructuring as part of their accession, including dismantling of their monopoly telecommunications operators. For example, Croatia and Georgia, which entered telecommunications commitments in 2000, were required to open their telecommunications market to competition by removing existing monopolies by 2003 and 2004, respectively.[45] In 2001, Moldova also agreed to lift the existing monopoly by 2003.[46]

WTO Dispute Settlement Mechanism - Effects of the DSB decision within Mexico

The impact of WTO commitments in the shaping of national legislation also can be seen in the context of the dispute settlement mechanism provided in GATS.[47] WTO Dispute Settlement Body (DSB) rulings are binding for the members upon which judgment has been passed, and are automatically adopted unless there is a consensus to the contrary.[48] In this sense, dispute settlement constitutes a coercive mechanism for enforcing members’ WTO commitments in such cases where voluntary compliance is not forthcoming. Hence, such disputes may arise, for example, when one member takes, or omits to take, certain actions that another member state deems a breach of pre-existing WTO commitments. WTO rules exclude individual service providers from directly seeking relief, but the service provider may seek its country of origin government to put pressure on another country’s government to comply with its GATS obligations, and ultimately activate the dispute settlement procedure.

To date, only one telecommunications case has been submitted to the DSB: a case involving trade of services between the United States and Mexico, which resulted in the Report of the Panel on Mexico’s Measures Affecting Telecommunications Services (the Panel Report).[49] In 2000, after failed bilateral talks, the United States initiated a WTO consultation proceeding claiming Mexico’s failure to comply with its commitments under the GATS Annex on Telecommunications and the Reference Paper with respect to basic and value-added services. Mexico’s schedule of commitments (adherence to the Reference Paper, market access, and national treatment) required it to:

  • ensure cost-orientated interconnection;
  • prevent anticompetitive practices; and
  • ensure that foreign service suppliers have access to Mexican public telecommunications networks.

The United States claimed that Mexico:

  1. Failed to ensure that local operator, Telmex, provide interconnection to U.S. suppliers on cost-orientated, reasonable rates, terms and conditions (i.e., inconsistency with interconnection principles under the Reference Paper).
  2. Maintained legislation that failed to prevent anticompetitive practices by Telmex, allowing it to establish international interconnection rates on behalf of all of the suppliers in the market (i.e., inconsistency with the competitive safeguards principles under the Reference Paper).
  3. Failed to comply with the Annex on Telecommunications, as U.S. suppliers were unable to access Mexico’s public telecommunications network for the provision of certain international services (i.e., non-facilities based services through Mexican commercial agencies, “comercializadoras,” and international simple resale through cross-border leased circuits).

As a result of the failed consultation proceedings, in 2002, a Panel was constituted, concluding with the DSB Panel Report in June 2004 which found that Mexico had breached several of its WTO telecommunications obligations. As a result, the United States and Mexico agreed on an implementation timetable addressing the compliance issues laid out in the Panel Report. According to such compliance agreement, Mexico was required to:

  1. Revise its International Long Distance Rules (the ILD Rules), eliminating those aspects of the existing ILD Rules that implemented the “uniform settlement rate” system, the “proportional return” system, and the requirement that the carrier with the greatest proportion of outgoing traffic to a country negotiate the settlement rate on behalf of all Mexican carriers for that country. All such practices were deemed by the Panel Report to be a breach of Section 1.1 of the Reference Paper.[50] Thus, the new ILD Rules had to allow the competitive commercial negotiation of international settlement rates.
  2. Maintain regulations authorizing the issuance of permits for the resale of international long distance public switched telecommunications services. Such regulations would have to regulate commercial agencies (comercializadoras) established in Mexico and permit them to purchase and resell these telecommunications services through the use of capacity of concessionaires. The absence of such regulations was deemed by the Panel Report to be a breach of Article 5 (a) and (b) of the Annex on Telecommunications.

In light of this compliance schedule, Mexico has undertaken the following reforms:

  1. New international long distance telecommunications rules[51] were approved providing for the competitive negotiation of settlement accounting rates or international interconnection rates, including prices for incoming and outgoing traffic.[52] In addition, foreign operators now are free to decide which Mexican operator they wish to use to terminate their traffic in Mexico.[53]
  2. With regards to the rules for licensing of “comercializadoras,” Mexico issued Regulations for the Resale of Long distance and International Long distance Telecommunications Services, allowing the commercial resale of long distance and international long distance services originating in Mexico. This regulation authorizes the issuance of licences for the resale of international long distance public switched telecommunications services.

Converged Services in the WTO Framework

Regulatory frameworks that are vertically structured around industries and more service-orientated, face greater challenges in adapting to and enabling convergence. While the WTO framework was an important step towards removing traditional barriers to trade and competition in the telecommunications market, its vertically segmented structure may lead to an un-harmonized approach towards convergence. As shown above, communications subsectors are technology oriented, and may not provide the flexibility necessary to accommodate new converged services.

A 1998 note by the WTO Secretariat highlighted that the GATS “classification of services [may be] inadequate […] to meet the rapid changes of the sector […] and any other list that might be devised could become quickly out of date.” Moreover, the lack of specificity regarding the scope and services under each commitment creates a degree of uncertainty about members’ commitments in connection with converged services. Moreover, WTO members have the flexibility to use their national legislation to interpret or define the category of services for which commitments have been made and therefore the treatment and liberalization of the same service may vary by country. The evolution of convergence has caused the vertical separation of services and industries to disappear, making the WTO’s service-based classification obsolete. This also leads to uncertainty regarding the commitments applicable to newly developed services, as such services may potentially fall outside of the scope of existing classification headings and therefore not be subject to any commitment.

Referencias

  1. ↑ As of February 2005, the WTO was comprised of 148 members. The list of members and their respective dates of accession may be found at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm.
  2. ↑ Note that liberalization of value-added services had occurred during the Uruguay Round in 1994, but basic telecommunications services were not liberalized until 1997 with the Fourth Protocol to the GATS. This is because at the time of the Uruguay Round, most basic telecommunications services were provided by operators holding legal monopoly rights, whereas value-added services were considered less “fundamental to society” and member states were more willing to open these services to foreign trade. (See Nihoul, P.L.G., Audiovisual and telecommunications services: a review of definitions under WTO law, The WTO and Global Convergence in Telecommunications and Audiovisual Services (edited by Damien Geradin and David Luff), 2004, at 362).
  3. ↑ Article II of the General Agreement of Trade in Services [hereinafter GATS]. This rule also extended to suppliers that have been granted rights to provide services on an exclusive basis (i.e., monopoly suppliers authorized by law, not de facto monopoly).
  4. ↑ Article XVI, of GATS. Market access refers to the ability of foreign investors to provide services in a WTO member state and prohibits members from limiting the number of service suppliers in their domestic market.
  5. ↑ Article XVII of GATS. The national treatment obligation implies that WTO members must treat domestic and foreign suppliers in the same manner – i.e., foreign services and service suppliers must be treated on terms that are no less favourable than a member state accords its domestic services and service suppliers.
  6. ↑ Article XVIII of GATS.
  7. ↑ Cross-border supply refers to the delivery of a service from the territory of the service supplier to that of the consumer (e.g., international long distance telephone calls).
  8. ↑ Consumption abroad - refers to a consumer’s use of services outside of the consumer’s territory.
  9. ↑ Commercial presence refers to the supply of services by the service supplier in a foreign market through the establishment of an enterprise in such market.
  10. ↑ Presence of natural persons refers to the supply of services in a foreign market where the service supplier has an individual or employee in such foreign market.
  11. ↑ Analysys and Harris, Wiltshire & Grannis, Telecommunications Trade Liberalization and the WTO, Final Report for the World Bank, 2004, at 1 [hereinafter Analysys and Harris, Wiltshire & Grannis. Telecommunications Trade Liberalization].
  12. ↑ Ann Buckingham, Camilla Bustani, David Satola, and Tim Schwarz, Telecommunications Reform in Developing Countries, in Telecommunications Law and Regulation (Ian Walden and John Angel eds., 2005), at 591 and 592 (citing to the Bressie, K, M Kende, and H. Williams, Participation in the WTO Global Trading System in Telecommunications is a Motor for Domestic Sector Reform, (mimeo, Global ICT Department, the World Bank (2003)).
  13. ↑ Note that there is no freestanding Basic Telecommunications Agreement, as the term is used to reference the schedule of specific commitments and Article II (MFN exemptions) initially submitted WTO members under the Fourth Protocol to the GATS. These commitments, originally concluded by 69 countries, accounting for more than 90% of global telecommunications revenues, entered into force on 5 February 1998. See Background Note by the Secretariat, Telecommunications Services, WTO, December 8, 1998, S/C/W/74. [hereinafter WTO Secretariat Background Notes].
  14. ↑ GATS Fourth Protocol, the Reference Paper is available at http://www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.htm.
  15. ↑ Analysys and Harris, Wiltshire & Grannis, Telecommunications Trade Liberalization and the WTO, Final Report for World Bank, 2004, at 6.
  16. ↑ This project is a joint European Union-ITU project aimed at assisting ECOWAS countries in harmonizing legislation in the sector, and consists of assistance in harmonization of legislation and policy and of capacity building assistance to ECOWAS countries. See http://www.itu.int/ITU-D/treg/Events/Seminars/ITU-EC-Project/Ghana/Ghana.html for the full text of the guidelines.
  17. ↑ Although Benin has established an interim Directorate within the Ministry Direction de la Politique des Postes et Télécommunications, it cannot be considered an independent and autonomous regulator.
  18. ↑ Sofie Maddens, Support to the Establishment of an Integrated ICT Market in West Africa, ITU-EU West Africa Common Market Project, Report 2: Licensing Report, August-October 2004.
  19. ↑ Id.
  20. ↑ For a complete list of member states’ commitments and exemptions, please refer to “Telecommunications Commitments and Exemptions” at http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_commit_exempt_list_e.htm.
  21. ↑ Article VIII:1 of GATS.
  22. ↑ GATS Services Sectoral Classification List (MTN.GNS/W/120).
  23. ↑ See WTO Secretariat Background Notes at p. 3 where the secretariat notes that “this breakdown does not necessarily reflect and does not need to correspond to any particular government’s national practice with respect to classifying services as basic or value added” (e.g., in some countries, mobile telephony, paging or data transmission may be designated as value-added services).
  24. ↑ GATS/SC/35/Suppl1, available at http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_commit_exempt_list_e.htm.
  25. ↑ Jordan’s current commitments may be found in the document GATS/SC/128 dated 15 December 2000. Id., at 26.
  26. ↑ Trade Act of 2002, 19 U.S.C. §3801 (2000).
  27. ↑ Wunsch-Vincent, Sacha, The Digital Trade Agenda of the US: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization, Institute for International Economics (2003) at 8.
  28. ↑ FTA with Singapore (January 15, 2003), Chile (January 1, 2004), Morocco (June 15, 2004), Bahrain (September 14, 2004), Australia (May 18, 2004), Bahrain (September 14, 2004), Central America, CAFTA (August 2, 2005). Negotiations are currently underway with the Colombia, Ecuador and Peru (the Andean FTA) and Panama.
  29. ↑ See Final Text, CAFTA, http://www.ustr.gov/assets/Trade_Agreements/Bilateral/CAFTA/CAFTA-DR_Final_Texts/asset_upload_file498_3933.pdf.
  30. ↑ Angus Henderson, Iain Gentle and Elise Ball, WTO principles and telecommunications in developing nations: challenges and consequences of accession, Telecommunications Policy 29 (2005), at 205-331, (citing recent initiatives by the World Bank and APEC-Tel to examine whether WTO principles represent best practices for certain countries in the developing world.)
  31. ↑ At the time the Reference Paper was conceived, most basic telecommunications services were provided by legal monopolies or state-owned operators. The Reference Paper does not prohibit the existence of such monopolies or state-owned operators, rather it requires member states to ensure that such operators do not abuse of their dominant position to the detriment of competition in the marketplace.
  32. ↑ WTO Services Database, response of 7 October 2005.
  33. ↑ Ann Buckingham and Mark Williams, Designing Regulatory Frameworks for Developing Countries, in Telecommunications Law and Regulation (Ian Walden and John Angel eds., 2005), Section 15.2, at 645.
  34. ↑ Article 5(a) of the Annex on Telecommunications.
  35. ↑ Article 2cl(x) of the Annex on Telecommunications.
  36. ↑ Nihoul, P.L.G., Audiovisual and telecommunications services: a review of definitions under WTO law, The WTO and Global Convergence in Telecommunications and Audiovisual Services (Damien Geradin and David Luff eds.), 2004, at 375.
  37. ↑ Article XIX of GATS.
  38. ↑ Analysys and Harris, Wiltshire & Grannis, Telecommunications Trade Liberalization, at 20.
  39. ↑ See GATS Training Module, Chapter 1, Basic Purpose and Concepts, available at http://www.wto.org/english/tratop_e/serv_e/cbt_course_e/c1s2p1_e.htm.
  40. ↑ Preamble to GATS, and Article XIX.
  41. ↑ See id. Additional Commitments.
  42. ↑ See Bangladesh Schedule of Specific Commitments. GATS/SC/8/Suppl.1.
  43. ↑ Analysys, Harris, Wiltshire & Grannis, Telecommunications Trade Liberalization, at A-25.
  44. ↑ Id. at 20.
  45. ↑ Croatia’s Schedule of Specific Commitment (GATS/SC/130); Georgia’s Schedule of Specific Commitments (GATS/SC/129).
  46. ↑ Moldova’s Schedule of Specific Commitments (GATS/SC/134).
  47. ↑ For a more detailed review of this dispute settlement mechanism see Section 7.4 of this handbook.
  48. ↑ Any country that has the intention to block a particular ruling has to persuade all other WTO members including its adversary in the case to share its view.
  49. ↑ The great majority of cases that arise are settled between the member countries via consultations.
  50. ↑ This provision establishes that: “Appropriate measures shall be maintained for the purpose of preventing suppliers who alone or together, are major suppliers from engaging in or continuing anti-competitive practices.”
  51. ↑ See the resolution “Pursuant to Which the Federal Telecommunications Commission Issues International Telecommunications Rules” (Resolucion Mediante la cual la Comisión Federal de Telecomunicaciones Expide las Reglas de Telecomunicaciones Internacionales), issued by Cofetel, and published in the Official Gazette of the Federation on 11 August 2004, effective as of 12 August 2004.
  52. ↑ Interestingly, however, Cofetel did not make reference to the WTO panel resolution and to its commitment with the United States to revise the ILD Rules as a factor that brought about the reform. Instead, it cited as one of Mexico’s international commitments leading to the issuance of the IT Rules, ITU Recommendation D.140 (Accounting Rate Principles for International Telephone Services), pursuant to which the ITU recommended to its members, as one of the principles that should be applied when establishing or revising accounting rates for international telephone services, that “accounting rates for international telephone services should be cost-orientated and should take into account relevant cost trends.”
  53. ↑ For further analysis, see Björn Wellenius, Juan Galarza, and Boutheina Guermazi, Telecommunications and the WTO: The Case of Mexico, World Bank, June 2005, at 12.


Notas Prácticas

Understanding GATS 3.2.1

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