Regulatory Cooperation for Trade in Services in the EU and US Trade Agreements with the Republic of Korea: How Deep and How Compatible?
Laurenza, Eugenia Costanza, Mathis, James, Melbourne Journal of International Law
This article compares domestic regulation provisions in the field of international trade in services for two economic integration agreements with the Republic of Korea: the Free Trade Agreement between the United States of America and the Republic of Korea (2011) and the Free Trade Agreement between the European Union and the Republic of Korea (2011). It examines the subjects of transparency, regulatory cooperation, competition law and policy and their institutional context in order to assess the depth of integration generated and the level of compatibility that results between the agreements. The article determines that many of the subjects are treated in a softer law manner that establishes ongoing systems of cooperation in order to realise the agreements' objectives of addressing regulatory barriers for foreign services and service providers. In some cases these softer law approaches may reflect the policy space parties choose to retain in their own domestic systems for balancing trade and regulatory objectives. For most of the subjects', the approaches' employed are similar, suggesting that the two agreements are rendered generally compatible for the types of regulatory activities incurred by the common signatory. The two subject areas of transparency and sector-specific domestic regulation present some more legally binding and actionable elements and there are some differences between the agreements in how these elements are addressed. For these, there is more risk of regulatory fragmentation as between the agreements and questions can be raised as to how this is resolved by a national regulatory system. Finally, the article considers some implications for the multilateral trading system of the World Trade Organization presented by the provisions examined in these agreements. To the extent that softer regulatory approaches emphasise the building of agency relationships over time, one can question whether this is a likely possible model of a larger group of WTO members. For those subjects that present somewhat more rigorous legal approaches, one can more easily consider how these models might translate to the WTO discussion as potential benchmarks for enhancing multilateral trade in services.
CONTENTS I Introduction II The US-Korea Free Trade Agreement A Transparency 1 General Provisions 2 Sector-Specific Provisions B Regulatory Cooperation 1 Domestic Regulation 2 Sector-Specific Provisions C Recognition 1 Sector-Specific Provisions D Competition Policy E Institutional Aspects/Dispute Settlement III The EU Korea Free Trade Agreement A Transparency 1 General Provisions 2 Sector-Specific Provisions B Regulatory Cooperation 1 Domestic Regulation 2 Sector-Specific Provisions 3 Mutual Recognition C Competition Policy D Institutional Aspects/Dispute Settlement IV Discussion A Transparency 1 Publication and Right to Comment 2 Right of Inquiry and Response 3 Administrative Reviews 4 Sector-Specific Transparency Provisions 5 Transparency Conclusions B Regulatory Cooperation 1 Domestic Regulation 2 Sector-Specific Regulation Provisions C Mutual Recognition D Competition E Institutional Aspects/Dispute Settlement V Conclusions
This article makes a comparative analysis of the approaches used for the treatment of regulatory barriers to trade in services by the European Union and the United States in their respective General Agreement on Trade in Services ('GATS') (1) art V economic integration agreements with the Republic of Korea. Both trade agreements have made commitments to eliminate barriers and provide national treatment for trade in cross-border commercial presence and professional services. (2)
Of particular interest are the approaches being developed in these agreements for the subjects of regulatory cooperation, as these rules affect the delivery of a service and the ability of foreign firms and service providers to function in the market. …