Unit 5 - Readings & Viewings

Read closely the text of GATT/WTO Article I.  Note that this is an agreement only governing trade in goods, although looking forward you can think about how the individual principles might or might not be extended to the budding liberalization of trade in services as covered by the GATS (General Agreement on Trade in Services).  Then read:

a. Yanai, The Function of the MFN Clause in the Global Trading System (2002)

b. Yanai, Rethinking Special and Differential Treatment in the WTO (2013)

Remember the “cinema screens” in WTO/GATT Article 4 back to 1947?  Why would any state care about national origin and media content, now that you can get 500 channels on cable, and young digital natives famously live in cyberspace?  Concerning cultural industries and protectionism, they have received protection in FTAs, including NAFTA 1.0 (see NAFTA Article 2106 and Annex 2016), but the current issues arise in audio-visual services negotiations under the GATS.  Please read Maule, Trade and Culture, Rhetoric and Reality, then consider the 2005 UNESCO Convention on the Protection of the Diversity of Cultural Contents, with now approximately 160 member states including Indonesia, but not the US.  Is the UNESCO Convention more about external pressures on Canadian publications like magazines and TV shows produced in Toronto, or is it more aimed at internal concerns like preservation of First Nations culture (or in the Indonesian context Dayak or Papuan or Asmat culture, claimed to be under pressure), and so is directed more at dominant national cultures than “cultural imperialism” from abroad?

How is cultural industry protection to be justified, is it the same or different from “national security,” just being about spiritual rather than physical security?  For US students, what would we say is the matter with declaring media and culture strategic industries that should be subject to government control, if not ownership?  Meanwhile, American lawyers’ tendency to invoke the first amendment is probably an outlier in international terms, and this is not an idle question in the digital age given the “Great Firewall of China.”   Closer to home public neo-nazi websites, also those directed at European audiences, tend to be hosted in the US (because the display and invocation of symbols and rhetoric of the Third Reich is a criminal offense in many Western countries like Germany and France).  Why does media and culture seem so important, and can you avoid these concerns as trade law begins to address the digital economy in FTAs?

Concerning services generally, read GATS Articles I, II & V.  Article I actually covers modes of service delivery, while Article II is the MFN provision itself, and Article V is the exception for FTAs (phrased in terms of economic integration).  Then concerning MFN and services, read Mattoo, MFN and GATS (1999). Understand that most trade in services liberalization since 1994 has proceeded under FTAs, with a limited amount already in the 1994 NAFTA Agreement 1.0 (for example, liberalization of engineering services), and more recently the AEC Agreement effective 2015 (for example, medical services).  Medical services delivery is also being changed in very basic ways via technology (telemedicine, also in the US particularly in the wake of the COVID-19 Pandemic).  The traditional regulatory issues with telemedicine include most prominently concerns whether a distant medical services provider is licensed in the jurisdiction where telemedicine services are provided.  On the other hand, the approach to medical services liberalization in the FTA setting is typically to provide for some form of mutual recognition of medical education and professional licenses (as under the AEC).