1 On the incompleteness of the WTO agreements, see H. Horn, G. Maggi, and R. Staiger, ‘Trade Agreements as Endogenously Incomplete Contracts’, NBER Working Paper No. 12745, December 2006; and S. Schropp, Trade Policy Flexibility and Enforcement in the WTO – A Law and Economics Analysis (Cambridge University Press, 2009), Chapter 3.

2 Sectoral initiatives such as those on financial, telecommunications, and accountancy services are the notable exceptions.

3 Under the GATS jargon, domestic regulation relates to national measures that are aimed to ensure the quality of the service supplied and which do not discriminate (and thus do not fall under the national treatment obligation of Art. XVII GATS) or constitute quantitative limitations (and thus do not come under the market access obligation of Art. XVI GATS).

4 At issue was a total prohibition, imposed by the United States, of the remote (including cross-border) supply of gambling and betting services. The dispute attracted the interest of many authors who expressed diverging views on the rightness of the Appellate Body ruling. See, inter alia, Pauwelyn, J., ‘Rien ne Va Plus? Distinguishing Domestic Regulation from Market Access in GATT and GATS’, World Trade Review, 4(2) (2005), 131CrossRefGoogle Scholar; Delimatsis, P., ‘Don't Gamble with GATS – The Interaction between Articles VI, XVI, XVII and XVIII GATS in the Light of the US–Gambling Case’, Journal of World Trade, 40(6) (2006), 1059Google Scholar; Mavroidis, P., ‘Highway XVI Re-visited: The Road from Non-Discrimination to Market Access in the GATS’, World Trade Review, 6(1) (2007), 1CrossRefGoogle Scholar. That the measure at issue was indeed a protectionist, self-defeating one was later proven during the Article 21.5 DSU proceedings. See Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services – Recourse to Article 21.5 of the DSU by Antigua and Barbuda (US–Gambling (Article 21.5 – Antigua and Barbuda)), WT/DS285/RW, adopted 22 May 2007, DSR 2007:VIII, 3105, paras. 6.31, 6.126, 6.130–6.135.

5 See, generally, J. Jackson, Sovereignty, the WTO, and Changing Fundamentals of International Law (Cambridge University Press, 2006); also Raustiala, K., ‘Rethinking the Sovereignty Debate in International Economic Law’, Journal of International Economic Law, 6(4) (2003), 841CrossRefGoogle Scholar.

6 Alter, K., ‘Agents or Trustees? International Courts in their Political Context’, European Journal of International Relations, 14(1) (2008), 33CrossRefGoogle Scholar.

7 For an economic viewpoint regarding judicial completion of the contract, see G. Maggi and R. Staiger, ‘On the Role and Design on Dispute Settlement Procedures in International Trade Agreements’, NBER Working Paper No. 14067, 2008.

8 Appellate Body Report, EC – Measures Concerning Meat and Meat Products (EC–Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, para. 115. The WTO adjudicating bodies form a sort of epistemic community which appears to be fully aware of its mission. Cf. Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico (US–Stainless Steel (Mexico)), WT/DS344/AB/R, adopted 20 May 2008, paras. 160–161 and fn 313; also J. Bacchus, ‘Leeky's Circle: Thoughts from the Frontier of International Law’, Address to the Institute of Advanced Legal Studies, University of London, 10 April 2003, p. 7, quoted in A. Cortell and S. Peterson, ‘Dutiful Agents, Rogue Actors, or Both? Staffing, Voting Rules, and Slack in the WHO and WTO’, in D. Hawkins, D. Lake, D. Nielson, and M. Tierney, Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006), p. 274.

9 As Howse and Nicolaidis argue, this type of ambiguity has ‘merely served to delay confronting hard questions’. See R. Howse and K. Nicolaidis, ‘Legitimacy through “Higher Law”? Why Constitutionalizing the WTO Is a Step Too Far’, in T. Cottier and P. Mavroidis (eds.), The Role of the Judge in International Trade Regulation – Experience and Lessons for the WTO (Michigan University Press, 2003), p. 317.

10 Cf. among manifold examples, the intepretation of the Schedules of Commitments in the US–Gambling case or the acceptance of amicus curiae briefs in the US–Shrimp case. One should add to this the practical problems that Panels and the Appellate Body have to tackle. These problems are associated with the increasing workload and the lack of coordination among parties, or the fact that sometimes evidence is submitted and claims are raised at an advanced stage of the process. Cf. Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC–Biotech), WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 847, paras. 7.37–7.45.

11 For instance, the disparate impact of a legislation has been regarded by the US Supreme Court as a proxy for intent to discriminate. See Primus, R., ‘The Future of Disparate Impact’, Michigan Law Review, 108 (2010Google Scholar, forthcoming). The European Court of Justice (ECJ) has also adopted a similar reasoning in cases relating to the fundamental freedoms of free movement, for instance by striking down residency requirements, as they have a heavier impact on non-nationals. See, among others, C-145/99, Commission v Italy [2002] ECR I-2235.

12 See WTO, Council for Trade in Services, ‘Article VI:4 of the GATS: Disciplines on Domestic Regulation Applicable to All Services’, Note by the Secretariat, S/C/W/96, 1 March 1999, p. 4.

13 WTO, WPDR, ‘Report of the Meeting Held on 1 April 2009’, S/WPDR/M/40.

14 Delimatsis, P., ‘Due Process and “Good” Regulation Embedded in the GATS – Disciplining Regulatory Behaviour in Services through Article VI of the GATS’, Journal of International Economic Law, 10(1) (2007), 15–17CrossRefGoogle Scholar.

15 P. Delimatsis, International Trade in Services and Domestic Regulations – Necessity, Transparency, and Regulatory Diversity (Oxford University Press, 2007), p. 41.

16 WTO, Trade in Services, ‘Disciplines on Domestic Regulation in the Accountancy Sector’, S/L/64, 17 December 1998.

17 Anecdotal evidence suggests that a recent attempt by a Member representative to link further progress in the negotiations on domestic regulations to advancements in agriculture and NAMA was fiercely criticized. However, in the recent Ministerial Conference held in Geneva in December 2009, several Members suggested that progress in services should go in tandem with other negotiating areas.

18 This, again, will often depend on the bargaining power of the parties involved (for instance US PTAs tend to deliver more substantial results) or the level of ambition and the sectoral interests of the parties involved. See Fink, C. and Moliuevo, M., ‘East Asian Preferential Trade Agreements in Services: Liberalization Content and WTO Rules’, World Trade Review, 7(4) (2008), 641CrossRefGoogle Scholar. Also J. Marchetti and M. Roy (eds.), Opening Markets for Trade in Services – Countries and Sectors in Bilateral and WTO Negotiations (Cambridge University Press, 2009).

19 Art. 8.8:3 of the US–Singapore PTA.

20 Art. 11.8:3 of the US–Chile PTA.

21 Art. 7-11.5 of the Singapore–Australia FTA.

22 Art. 28 EFTA–Chile FTA.

23 Such PTAs also tend to require that PTA partners coordinate in these multilateral negotiations within the WPDR.

24 Annex C to the Hong Kong Ministerial Declaration, adopted on 18 December 2005, WT/MIN(05)/DEC, para 5.

25 In the case of intellectual property rights, Part III of the TRIPS Agreement also incorporates enforcement procedures which ‘provide for an internationally-agreed minimum standard which Members are bound to implement in their domestic legislation’. See Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 1998 (US–Section 211 Appropriations Act), WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589, paras. 206–7, 221.

26 Viewed from this angle, Article VI complements and serves the object and purpose of Article VII GATS. See, generally, A. B. Zampetti, ‘Market Access through Mutual Recognition: The Promise and Limits of GATS Article VII’, in P. Sauvé and R. M. Stern (eds.), GATS 2000: New Directions in Services Trade Liberalization (Brookings Institution, 2000), pp. 283–306.

27 A.-M. Slaugther, A New World Order (Princeton University Press, 2005).

28 Our comments are based on the most recent draft text submitted by the WPDR Chairman. See WPDR, ‘Disciplines on Domestic Regulation Pursuant to GATS Article VI:4’, Room Document, 20 March 2009 (on file with the author).

29 This right forms part of the object and purpose of the GATS. See Panel Report, US–Gambling, paras 6.107–9 and 6.314–17.

30 cf. Panel Report, US–Gambling, para. 6.316.

31 Directive 2006/123 on services in the internal market (the Services Directive) [2006] OJ L 376/36.

32 This limitation of the coverage of the disciplines goes against the letter of Article VI:4. See Delimatsis, above n. 15, pp. 187–189.

33 Cf. Appellate Body Report, European Communities – Selected Customs Matters (EC–Selected Customs Matters), WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791, paras. 224–6.

34 Cf. WTO, Council for Trade in Services (Special Session), ‘Economic Needs Tests’, Note by the Secretariat, S/CSS/W/118, 30 November 2001, para. 7.

35 Cf. Kingsbury, B., Krisch, N., and Stewart, R.B., ‘The Emergence of Global Administrative Law’, Law and Contemporary Problems, 68 (2005), 15Google Scholar.

36 Cf. Chapter II of the EU Services Directive on ‘administrative simplification’.

37 For an analysis of the ‘prompt publication’ concept, see P. Delimatsis, ‘Article III GATS’, in R. Wolfrum, P.-T. Stoll, and C. Feinäugle (eds.), Max-Planck Commentaries on World Trade Law, Volume 6: WTO – Trade in Services (Brill Publishers, 2008), p. 97.

38 Cf. in the EU context, the landmark decisions on Heylens and Vlassopoulou. Case 222/86 Unected v Heylens [1987] ECR 4097, paras. 14–16; and C-340/89, Vlassopoulou [1991] ECR I-2357, para. 17.

39 Cf. Appellate Body Report, US–Shrimp, para. 183. The requirement to give reasons is also very useful for judicial review purposes. See M. Shapiro, ‘The Giving Reasons Requirement’, University of Chicago Legal Forum (1992), 179.

40 For a discussion on residency requirements, see Delimatsis, above n. 15, pp. 195–196.

41 Cf. C-31/00, Dreessen [2002] ECR I-663, para. 24. A landmark case as to how such a comparison can occur in practice in an EU Member State is the ECJ judgment of 10 December 2009 in the case C-345/08, Peśla (not yet published).

42 See WTO, Council for Trade in Services, above n. 12, p. 3; also Delimatsis, above n. 14, pp. 47–48.

43 European Commission, ‘Third Strategic Review of Better Regulation in the European Union’, COM(2009)15, 28 January 2009.

44 See, among others, Mandelkern Group on Better Regulation – Final Report, 2001, available at: http://ec.europa.eu/governance/better_regulation/documents/mandelkern_report.pdf.

45 Similar initiatives have been launched earlier in other countries such as the US (‘reinventing government’) or Canada (‘smart regulation’). The OECD has a multi-year programme on regulatory reform, which culminated in the ‘OECD Guiding Principles for Regulatory Quality and Performance’ adopted in 2005. In the same year, APEC and OECD agreed on an ‘Integrated Checklist on Regulatory Reform’.

46 For an analysis of these obligations, see Delimatsis, above n. 1.

47 Panel Report, US–Gambling, para. 6.107. Also Appellate Body Report, United States – Restrictions on Imports of Cotton and Man-made Fibre Underwear (US–Underwear), WT/DS24/AB/R, adopted 25 February 1997, DSR 1997:I, 11, p. 21; and Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China–Publications and Audiovisual Products), WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, para. 7.1219.

48 WTO, WPDR, ‘Report on the Meeting Held on 22 June 2005’, S/WPDR/M/30, 6 September 2005, paras. 40ff.

49 J. Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society (Beacon Press, 1981); Esty, D., ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’, Yale Law Journal, 115 (2006), 1530CrossRefGoogle Scholar.

50 Viewed through this prism, the exercise of sovereignty becomes a collective and cooperative enterprise calling for an anthropocentric approach. Cf. Hobe, S., ‘Statehood at the end of the 20th Century – The Model of the “Open State”: A German Perspective’, Austrian Review of International and European Law, 2 (1997), 127CrossRefGoogle Scholar.

51 European Commission (2001), ‘European Governance – A White Paper’, COM(2001)428. See also Art. 11:2 of the Lisbon Treaty. See, however, T-135/96, UEAPME v Council [1998] ECR II-2335.

52 Also Harlow, C., ‘Global Administrative Law: The Quest for Principles and Values’, European Journal of International Law, 17(1) (2006), 201CrossRefGoogle Scholar. The EU adopts this stance in its external relations as well. See European Commission, ‘On the External Dimension of the Lisbon Strategy for Growth and Jobs: Reporting on Market Access and Setting the Framework for More Effective International Regulatory Cooperation’, COM(2008)874.

53 European Commission (2002), ‘Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission’, COM(2002)704.

54 Some EU law scholars would even argue for an incremental ‘Europeanisation’ of international law. See F. Snyder (ed.), The Europeanisation of Law: The Legal Effects of European Integration (Hart Publishing, 2000).

55 See Cassese, S., ‘Global Standards for National Administrative Procedure’, Law and Contemporary Problems, 68 (2005), 121Google Scholar.

56 R. Keohane, S. Macedo, and A. Moravcsik, ‘Democracy-Enhancing Multilateralism’, International Law and Justice Working Paper No. 2007/4, New York University.

57 For a discussion on residency requirements, see Delimatsis, above n. 15, pp. 195–196.

58 See WTO, Trade in Services, above n. 16, para. 24.

59 See Art. 14:1(b) of the EU Services Directive. However, this prohibition is a corollary of the different approach that the EU adopts, which is based on achieving an internal market of services.

60 The EU rules relating to the recognition of professional qualifications are now contained in the Directive 2005/36, OJ L 255/22. Also C. Nicolaidis, ‘Globalization with Human Faces: Managed Mutual Recognition and the Free Movement of Professionals’, in F. Schioppa (ed.), The Principle of Mutual Recognition in the European Integration Process (Palgrave, 2004).

61 Cf. Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather (Argentina–Hides and Leather), WT/DS155/R and Corr.1, adopted 16 February 2001, DSR 2001:V, 1779, paras. 11.91, 11.100. For a similar case in the EU see Case C-250/03, Mauri [2005] ECR I-1267.

62 See Article 4:6 and 4:7 as well as Recital 39 of the EU Services Directive.

63 Appellate Body Report, European Communities – Trade Description of Sardines (EC–Sardines), WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359, paras. 240–5

64 Ibid., paras. 275, 282, 287.

65 See, generally, C. Cutler, Private Power and Global Authority – Transnational Merchant Law and the Global Political Economy (Cambridge University Press, 2003).

66 H. Schepel, The Constitution of Private Governance (Hart Publishing, 2005).

67 See, along these lines, R. Adlung, ‘Services Liberalization from a WTO/GATS Perspective: In Search of Volunteers’, WTO Staff Working Paper ERSD-2009-05, 2009, p. 18.

68 See Chaudhuri, S., Mattoo, A., and Self, R., ‘Moving People to Deliver Services: How can the WTO help?’, Journal of World Trade, 38(3) (2004), 365Google Scholar.

69 At the EU level, the ECJ has consistently found that requiring original documentation from applicants is disproportionate to the objective pursued relating to the protection of the public interest that service suppliers indeed have certain qualifications attested by a recognized diploma, and that other forms of evidence which are less burdensome such as certified copies or even simple copies can allow the attainment of the public policy objective. See C-298/99, Commission v Italy [2002] ECR I-3129, paras 37–39.

70 See Protocol No. 2 on the application of the principles of subsidiarity and proportionality, annexed to the Treaty on the Functioning of the European Union (TFEU); also European Commission (2009), ‘Third strategic review of Better Regulation in the European Union’, COM(2009)15 final.

71 See WTO, WPDR, above n 13.

72 Mattli, W. and Büthe, T., ‘Global Private Governance: Lessons from a National Model of Setting Standards in Accounting’, Law and Contemporary Problems, 68 (2005), 226–227Google Scholar.

73 Also Delimatsis, P., ‘Determining the Necessity of Domestic Regulations in Services – The Best is Yet to Come’, European Journal of International Law, 19(2) (2008), 365CrossRefGoogle Scholar.

74 Also M. Krajewski, ‘Article VI GATS (Domestic Regulation)’, in R. Wolfrum, P.-T. Stoll, and C. Feinäugle (eds.), above n. 37, p. 178.

75 A positive analysis of the mandate and a critical review of the concept of necessity, its interpretation by the WTO judiciary, and the relevant doctrine is offered in Delimatsis, above n. 73. In this section, we rather focus on a normative analysis of a possible framework that endorses a necessity test applicable to all services sectors.

76 Recognition has here a broad meaning to also incorporate cases where requirements and procedures or standards, while different, are considered as equivalent because they equally achieve the desired level of protection or ensure the quality of the service supplied.

77 For a study suggesting that a shift of regulatory authority is occuring within the WTO to the benefit of the judicial branch, see J. Goldstein and R. Steinberg, ‘Regulatory Shift: The Rise of Judicial Liberalization at the WTO’, UCLA Law and Economics Research Paper No. 07-15, 2007.

78 Cf. Panel Report, Mexico – Measures Affecting Telecommunications Services (Mexico–Telecoms), WT/DS204/R, adopted 1 June 2004, DSR 2004:IV, 1537, para. 7.3.

79 WTO, Trade in Services, above n. 16, para. 2.

80 Appellate Body Report, Japan – Taxes on Alcoholic Beverages (Japan–Alcoholic Beverages II), WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, p. 16; also GATT Panel Report, United States – Taxes on Petroleum and Certain Imported Substances (US–Superfund), L/6175, adopted 17 June 1987, BISD 34S/136, para. 5.2.2.

81 GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages (US–Malt Beverages), DS23/R, adopted 19 June 1992, BISD 39S/206; GATT Panel Report, United States – Taxes on Automobiles, DS31/R, 11 October 1994, unadopted. See also Hudec, R., ‘GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test’, International Lawyer, 619 (1998), at 626Google Scholar.

82 This was regarded as leading to a resurrection of the aims and effects test. See Porges, A. and Trachtman, J., ‘Robert Hudec and Domestic Regulation: The Ressurection of “Aim and Effects”’, Journal of World Trade, 4 (2003), 783Google Scholar; also Leroux, E., ‘Eleven Years of GATS Case Law: What Have we Learned?’, Journal of International Economic Law, 10(4) (2007), 749CrossRefGoogle Scholar, at 780.

83 Cf. J. Trachtman, ‘Lessons for the GATS from Existing WTO Rules on Domestic Regulation’, in A. Mattoo and P. Sauvé (eds.), Domestic Regulation and Service Trade Liberalization (World Bank/Oxford University Press, 2003), pp. 68–69.

84 Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (EC–Asbestos), WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243, para. 174.

85 Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes (Dominical Republic–Import and Sale of Cigarettes), WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, 7367, para. 70.

86 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (Brazil–Retreaded Tyres), WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527, paras. 156, 171, 174–5.

87 In this direction, see Australia's intervention in WTO, WPDR, ‘Report of the Meeting held on 19 and 20 June 2006’, S/WPDR/M/35, 14 August 2006, paras. 7–8, and Switzerland's position in WTO, WPDR, above n. 13, para. 10.

88 Cf. Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear (Argentina–Footwear (EC)), WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515, para. 81; Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea–Dairy), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 81.

89 Cf. Appellate Body Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products (Canada–Dairy), WT/DS103/AB/R, WT/DS113/AB/R and Corr.1, adopted 27 October 1999, DSR 1999:V, 2057, para. 133; Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000 (US–Offset Act (Byrd Amendment)), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, DSR 2003:I, 375, para. 271.

90 The same applies to the role of Article VI:5 GATS.

91 Similar tests are to be found in Articles 2.3 and 5.5 SPS or VII:3 GATS.

92 Cf. the chapeau of Article XIV GATS or para. 5(d) of the Telecoms Annex; also T. Cottier, P. Delimatsis, and N. Diebold, ‘Article XIV’, in Wolfrum, Stoll, and Feinäugle (eds.), above n. 37, p. 325.

93 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (US–Gasoline), WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3, p. 25.

94 Ibid, p. 28.

95 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (US–Shrimp), WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, paras. 136, 141.

96 Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Korea–Beef), WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5, para. 161.

97 Delimatsis, above n. 14, p. 34.

98 See, generally, Kingsbury, Krisch, and Stewart, above n. 35.

99 A similar point, although in a broader international law context, is made by Judge Simma, who argues for effective judicial review to protect individuals. See Simma, B., ‘Universality of International Law from the Perspective of a Practitioner’, European Journal of International Law, 20(2) (2009), 265CrossRefGoogle Scholar, at 296; also Petersmann, E.-U., ‘Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice’, Journal of International Economic Law, 10(3) (2007), 529.CrossRefGoogle Scholar

100 J. Jackson, ‘Direct Effect of Treaties in the US and the EU, the Case of the WTO: Some Perceptions and Proposals’, in A. Arnull, P. Eeckhout, and T. Tridimas (eds.), Continuity and Change in EU Law (Oxford University Press, 2008), p. 361.

101 See, inter alia, C-149/96, Portugal v Council [1999]. I-8395, paras. 47–49, and more recently, C-351/04, Ikea Wholesale [2007] ECR I-7723, paras. 29–30. The ECJ accepted direct effect only in two concrete cases, that is when, by adopting a given Community act, the Community aims to execute a particular obligation taken under the WTO (C-69/89, Nakajima [1991] ECR I-2069, 27–31) or the Community act explicitly refers to concrete provisions of any WTO agreement (70/87, Fediol [1989] ECR 1781, 19–22).

102 C-53/96, Hermès International [1998] ECR I-3603, paras. 25–29; also C-260/08, HEKO Industrieerzeugnisse GmbH, nyr, para 22.

103 C-431/05, Merck Genéricos Produtos Farmacêuticos [2007] ECR I-7001, paras. 34, 46, 48. Established ECJ case-law suggests that a provision should be considered as being directly applicable ‘when, regard being had to the wording, purpose and nature of the agreement, it may be concluded that the provision contains a clear, precise and unconditional obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure’. See C-392/98, Dior and Others [2000] ECR I-11307, para. 42.

104 Ibid, para. 47; also C-431/05, Merck Genéricos Produtos Farmacêuticos, para. 35. This is in line with the broader principle of treaty-consistent interpretation within the EU. See Bronckers, M., ‘From “Direct Effect” to “Muted Dialogue” – Recent Developments in the European Courts’ Case Law on the WTO and Beyond', Journal of International Economic Law, 11(4) (2008), 888CrossRefGoogle Scholar.

105 Being a highly incomplete contract with a high level of legal insecurity, the GATS generally encourages a risk-averse approach from the side of Members, which may be also explaining – partly, at least – the present negotiating deadlock. Cf. Hoekman, B., Mattoo, A., and Sapir, A., ‘The Political Economy of Services Trade Liberalization: A Case For International Regulatory Cooperation?’, Oxford Review of Economic Policy, 23(3) (2007), 367CrossRefGoogle Scholar, at 385ff.