Renegotiate the WTO "schedules of commitments"?: Technological development and treaty interpretation

Abstract

The interpretation of schedules has been the subject of several Panel and Appellate Body reports in recent years, and it is anticipated that challenges to schedules related to information and communication technologies before the dispute settlement body will increase. The recent decisions of the Panel and the Appellate Body in EC-IT Products and China-Audiovisual Services may become significant leading cases on the issues of how to interpret "schedules of commitments" in this rapidly changing digital era. I conclude in this article that the Panel appropriately recognized in EC-IT Products that the Information Technology Agreement is not relevant in determining the object and purpose of the WTO Agreement and therefore the complainants' interpretative approach is overbroad and may compromise the legal certainty and predictability of tariff concessions. However, I argue that the Panel should have elaborated upon the question of how "technological development" and "product evolution" should be dealt with in interpreting concessions. I also stress that in China-Audiovisual Services the Appellate Body took a "brave" but necessary position on the issue of whether the definition of "sound recording distribution services" is alterable and evolutionary through time. In addition, the Appellate Body clarified that the fact that a service was technically feasible and commercially viable at the time of a member's World Trade Organization accession does not necessarily mean that that member's commitments under the General Agreement on Trade in Services include that service. As the Appellate Body's view alone is not a satisfactory basis for such an important holding, the final part of this article suggests that the reasoning ought to be supported in light of the principle of technological neutrality.