WORLD TRADE  
ORGANIZATION  RESTRICTED 
S/C/W/96  
1 March 1999 
 (99-0769) 
Council for Trade in Services  
  
 
ARTICLE VI:4 OF THE GATS: DISCIPLINES ON DOMESTIC REGULATION 
APPLICABLE TO ALL SERVICES 
 
Note by the Secretariat 
  
I. INTRODUCTION  
1. This Note provides an overview of some of th e issues that Members may wish to consider in 
the process of developing disciplines on domestic regulation applicable to all services sectors, as required by Article VI:4.  The analysis of the lega l issues in this Note is not exhaustive and does not 
represent an authoritative interpretation of GATS pr ovisions.  Moreover, it does not prejudge in any 
manner the outcome of Members’ work under Article VI:4. 
2. Article VI paragraph 4 of the GATS requires the Council for Trade in Services, or appropriate 
bodies the Council might establish, to develop disciplines aimed at ensuring that qualification requirements and procedures, technical standa rds and licensing requirements do not constitute 
unnecessary barriers to trade in services.  It is noteworthy that the first draft of the GATS 
(MTN.GNS/35 of 23 July 1990) contained a bi nding discipline on domestic regulation in its 
Article VII.  This reads as follows: 
“Parties may require that services or providers of services of other parties meet certain 
regulations, standards or qualifications. Su ch requirements shall be based upon objective 
criteria, such as competence and the ability to  provide such services, and not be more 
burdensome than necessary to achieve  the national policy objectives.” 
 3. It might be worth considering why Article VI:4  contains a mandate for the development of 
disciplines rather than a simpler binding rule similar to that contained in the first draft of the GATS.  
Of course, the drafting above is very simple indeed but it seems to cover the essence of what is stated 
essentially in the form of an objective in Article VI:4.   It appears that the simple transformation of the 
principles listed in VI:4 into binding rules would in itself bring domestic regulation within the GATS 
legal framework.  Such a general rule, however, w ould probably have been insufficient to provide 
guidance for the settlement of disagreements or di sputes about particular measures;  the purpose of 
developing these general principles into “discip lines” could be seen as being to give them enough 
specificity to make them operationally useful. 
4. Definitions of the categories of measures covered by Article VI:4 of the GATS are contained 
in the Secretariat’s Background Note S/WPPS/W/9.  Th ey are: qualification requirements, that is to 
say substantive requirements which a professional ser vice supplier is required to fulfil in order to 
obtain certification or a licence; qualification procedur es, administrative or procedural rules relating to 
the administration of qualification requirements;  licensing requirements, comprising substantive 
requirements other than qualification requirements, which a service supplier is required to comply 
with in order to obtain a formal permission to supply a service; licensing procedures, administrative 
procedures relating to the submission and processing of an application for a licence; and technical S/C/W/96 
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 standards, requirements which may apply both to the characteristics or definition of the service and to 
the manner in which it is performed. 
5. The Decision on Professional Services adopted by the Council on 1 March 1995 (S/L/3) 
called upon Members to begin work under Article VI:4 in Professional Services, with priority given to 
the accountancy sector.  This, however, does not represent a decision by WTO Members to carry out 
work under Article VI:4 on a sector-by-sector basis.  At the 1996 Singapore Ministerial Meeting 
Members restated their commitment to pursue the Article VI:4 mandate  in the Services Council for all 
services and in the Working Party on Professional Services (WPPS) for the accountancy sector.  The 
broader Article VI:4 work programme was discu ssed by the Services Council after the Singapore 
Ministerial Conference and some Members suggest ed to conclude the WPPS work on accountancy, 
before beginning horizontal work on domestic regul ation disciplines.  The WPPS concluded its work 
on accountancy at the end of 1998 and the Council approved the text of the accountancy disciplines on 14 December 1998. 
6. Although the work of the WPPS on accountancy does not pre-empt future work at the 
horizontal level and in other sectors, much of the discussion held in the WPPS on the accountancy 
disciplines constitutes helpful background for future  work under Article VI:4 in general.  Other 
relevant background information can be found in other WTO agreements, dealing with aspects of 
domestic regulations in goods sector s, and in the work of other international organizations, in 
particular regarding the issue of international standards. 
II. ARTICLE VI:4  
7. The GATS approaches the progressive liberali sation of trade in services through the 
elimination of restrictions to trade rather than through deregulation.  In the Uruguay Round Members 
identified categories of restrictions, mainly of a quantitative and discriminatory nature, which were 
made subject to the disciplines of Articles XVI a nd XVII.  In sectors where they have no specific 
commitments Members remain free to impose market access and national treatment restrictions.  In sectors where specific commitments have been undertak en, all restriction falling within the scope of 
Articles XVI and XVII are prohibited, unless they have been inscribed in a Member’s schedule. 
8. Although it aims at minimising the trade restrictive effects of all regulatory barriers, including 
those not subject to the disciplines of Articles XVI and XVII, the GATS does not prejudice Members’ 
right to regulate.  The fourth recital to the in troduction to the GATS reaffirms Member’s regulatory 
autonomy in the services area: 
“Recognizing  the right of Members to regulate, and to introduce new regulations, on the 
supply of services within their territories in order to meet national policy objectives and, 
given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of  developing countries to exercise this right.” 
 9. Members’ right to regulate did not prevent the inclusion in the GATS of rules allowing for the 
minimisation of the trade restrictive effects of dom estic regulation which did not fall within the scope 
of Articles XVI and XVII.  Such rules are to be found in Article VI of the GATS, which contains: 
(a) some binding provisions; (b) a mandate for the development of multilateral disciplines; and (c) a 
mechanism for the provisional application of the ma in principles underlying the future disciplines. 
10. There are several rules in Article VI which already apply to domestic regulation in services.  
Paragraph 1 requires Members to administer all me asures of general application affecting trade in 
services in a reasonable, objective and impartial manner in sectors where specific commitments have 
been undertaken.  Paragraph 2 provides for the est ablishment of mechanisms for the review of 
administrative decisions affecting trade in services.  For this purpose Members are required to  S/C/W/96 
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 maintain or institute judicial, arbitral or admi nistrative tribunals or procedures, which if not 
independent of the agency entrusted with the admini strative decision concerned, shall at least provide 
for an objective and impartial review.  According to  paragraph 3, where an authorization is required 
for the supply of a services for which specific commi tments have been undertaken, the competent 
authorities of Members shall inform an applicant of  the decision concerning the application within a 
reasonable period of time after the submission of a co mplete application and shall keep the applicant 
informed about the status of the application upon request.  Finally paragraph 6 requires the establishment of adequate procedures to verify the competence of foreign professionals in sectors 
where specific commitments regarding professional services have been undertaken.  Paragraph 6, 
however, does not impose other obligations beyond the verification of competence, such as the 
establishing of equivalence between requirements fulfilled in the home country of the professional 
and host country requirements. 
11. Pending the entry into force of the disciplines pursuant to paragraph 4, Article VI:5 provides 
for the application of the main principles contained in paragraph 4 to licensing and qualification requirements and procedures and technical standards, in sectors where specific commitments have 
been undertaken.  However, paragraph 5 only applie s where measures taken nullify or impair specific 
commitments, and this of course requires demonstrati on.  In other words, Article VI:5 would provide 
the basis for complaint about a measu re in the area of licensing, qualification and standards which was 
believed to nullify or impair a specific commitment.  The impact of the discip line is further weakened 
by indent (ii) which exempts measures which could reasonably have been expected of a Member at 
the time the specific commitments in the relevant sectors were made. Indent (ii) would therefore seem 
to exempt from Article VI:5 at least all tho se measures which were already in place in 1995. 
12. The Article VI:4 mandate was first taken up by the Working Party on Professional Services in 
the accountancy sector.  The WPPS devoted a consider able amount of time to the discussion of the 
nature and scope of Article VI:4, before and during the negotiation of the disciplines.  The outcome of 
the WPPS work only applies to the accountancy sector , but it is useful in this context to summarize 
the conclusions reached by the WPPS on th e role and the scope of Article VI:4. 
13. Although Members’ submissions initially in cluded proposals on discriminatory measures 
(XVII) and on measures listed as market access r estrictions in Article XVI, the accountancy 
disciplines do not address measures falling within th e scope of Articles XVI or XVII.  In the 
discussions it was noted that there was a fundament al legal distinction in the GATS between those 
provisions: while Articles XVI and XVII belonged to Part III of the Agreement on Specific 
Commitments, Article VI belonged to Part II on  General Obligations and Disciplines.  As a 
consequence the elimination of restrictions on mark et access and national treatment is subject to the 
negotiation of specific commitments, whereas the obligation to minimise the trade-restrictive 
elements of domestic regulation is a general obliga tion which would be subject to the disciplines to be 
developed under Article VI:4.  The legal status of these measures also naturally differs.  Measures 
restricting market access and national treatment ar e prohibited,  unless scheduled, in sectors where 
specific commitments have been undertaken, whereas they can be maintained in sectors which are not 
committed.  The right to maintain domestic regulat ory measures is however specifically recognized 
and will be subject to the disciplines to be devel oped under Article VI:4 with the aim of minimizing 
their negative impact on trade.  These measures ca nnot be entered as limitations in a Member’s 
schedule. 
14. The WPPS came to the conclusion that, in order to ensure legal certainty and the conformity 
of the disciplines with the structure of the GATS, there should not be any overlap between 
Articles XVI and XVII on the one hand and Article VI on the other hand.  It agreed that the 
accountancy disciplines “would not address measures subject to scheduling under Articles XVI and 
XVII of the GATS, which restrict access to the domestic market or limit the application of national 
treatment to foreign suppliers.”  Some typical ma rket access and national treatment restrictions in S/C/W/96 
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 accountancy were listed in a separate Informal Note by the Chairman, where it was indicated that the 
elimination of such restrictions would be subject to negotiations on specific commitments and not to 
rules under Article VI:4. 
15. The WPPS also discussed at length whether the Article VI.4 disciplines on accountancy 
should constitute unconditional or c onditional obligations, that is to say whether they  should apply 
regardless of the existence of specific commitments  or only where specific commitments in the sector 
had been undertaken.  Nothing in  Article VI:4 suggests that its disciplines were to be limited to 
services on which specific commitments are undertaken.  Indeed, the fact that four other paragraphs in this Article are specifically stated to apply only where there are commitments  strongly suggests that 
the absence of any such limitation in Article VI:4 was intentional.  Article VI:5 provides for the 
temporary application of the principles listed in  VI:4 only in sectors in which a Member has 
undertaken specific commitments, but that is so in or der that, pending the entry into force of the VI:4 
disciplines, specific commitments should not be underm ined by their absence.  However, the Decision 
on Disciplines Relating to the Accountancy Sector stat es that the “disciplines are to be applicable to 
Members who have entered specific commitments in  accountancy in their schedules.”  The choice of 
the WPPS for accountancy, however, does not prejudge th e scope of application of the disciplines to 
be developed under Article VI.4. 
16. The experience of the WPPS is important not on ly for the nature and the scope of future 
Article VI:4 disciplines, but also for the definiti on of their content.  Similarly domestic regulation 
disciplines in other WTO areas can help to identify th e content of provisions applicable to services.  
On the basis of the text of Article VI:4, of the accountancy disciplines and of other WTO Agreements 
on regulation in goods (TBT and SPS), it is possibl e to identify the following policy areas, where 
domestic regulation disciplines in services could be developed: necessity, transparency, equivalence 
and international standards.  The first two areas,  necessity and transparency could help to develop 
rules on domestic regulation applicable to all types of measures listed in Article VI:4: qualification 
and licensing requirements and procedures and technical  standards.  The last two areas, equivalence 
and international standards could in stead help to develop rules limite d to some of the measures listed 
in Article VI:4: qualification and licensing  requirements and technical standards. 
III. THE NECESSITY TEST  
17. Article VI:4 adopts “necessity” as the central rule to assess the compatibility with the GATS 
of trade restrictive domestic regulatory measures.  The chapeau of Article VI:4 identifies the main 
objective of the disciplines on domestic regulati on, which the Services Council is called upon to 
develop:  to ensure that “measures relating to qualification requirements and procedures, technical 
standards and licensing procedures do not constitu te unnecessary barriers to trade in services.” 
18. The disciplines for the accountancy sector developed by the WPPS contain a binding 
necessity test, which only applies to non-discrimin atory and non-quantitative measures.  Section I, 
paragraph 2 ( General Provisions ) states that: 
“Members shall ensure that measures not subject to scheduling under Articles XVI or XVII of 
the GATS, relating to licensing requirements and procedures, technical standards and qualification requirements and procedures are not pr epared, adopted or applied with a view to 
or with the effect of creating unnecessary barri ers to trade in accountancy services.  For this 
purpose, Members shall ensure that such me asures are not more trade-restrictive than 
necessary to fulfil a legitimate objective.  Legitimate objectives are, inter alia , the protection 
of consumers (which includes all users of acc ounting services and the public generally), the 
quality of the service, professional competence, and the integrity of the profession.” 
  S/C/W/96 
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 19. The concept of necessity exists also in other WTO Agreements.  Article XX of the GATT, the 
General Exceptions, require that some measures a dopted by Members as exceptions to the agreement 
be “necessary” to achieve certain policy objectives.  A similar necessity test is also contained in 
Article XIV of the GATS (General Exceptions): 
“Subject to the requirement that such measures are not applied in a manner which would 
constitute a means of arbitrary or unjustifia ble discrimination between countries where like 
conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement 
shall be construed to prevent the adoption or  enforcement by any Member of measures:  
 
(a) necessary to protect public morals or to maintain public order; 
(b) necessary to protect human, animal or plant life or health; 
(c) necessary to secure compliance with laws or  regulations which are not inconsistent 
with the provisions of this Agreement …” 
20. Article 2.2 of the Agreement on Technical Barriers to Trade (TBT) contains a necessity test 
for technical regulations and standards: 
“Members shall ensure that technical regulations  are not prepared, adopted or applied with a 
view to or with the effect of creating unnecessar y obstacles to international trade.  For this 
purpose, technical regulations shall not be more  trade-restrictive than necessary to fulfil a 
legitimate objective, taking account of the risks non-fulfilment would create.  Such legitimate 
objectives are, inter alia:   national security requirements;  the prevention of deceptive 
practices;  protection of human health or safety, animal or plant life or health, or the 
environment.  In assessing such risks, relevant elements of consideration are, inter alia:   
available scientific and technical informati on, related processing tec hnology or intended end-
uses of products.” 
 21. Article 2.2 of the SPS Agreement contains also a necessity test for sanitary and phytosanitary 
measures: 
“Members shall ensure that any sanitary or phytosanitary measure is applied only to the 
extent necessary to protect human, animal or  plant life or health, is based on scientific 
principles and is not maintained without suffici ent scientific evidence, except as provided for 
in paragraph 7 of Article 5.” 
 
22. It is important to distinguish the necessity t est of the exception provisions (and to a certain 
extent of the SPS) from the necessity test contained in the TBT Agreement and in Article VI:4 of the 
GATS.  The first intervenes in the context of a general exception and is aimed at containing 
Members’ actions, which can be in violation of oblig ations under an agreement, within the boundaries 
of necessity.  Measures taken under a general exception can  also be discriminatory, provided that they 
do not arbitrarily or unjustifiably discriminate nor constitute a disguised restriction on international 
trade.  In contrast, the TBT and VI:4 necessity test  only applies to trade restrictive measures which are 
non-discriminatory and which can be objectively ju stifiable if they are necessary to achieve a 
legitimate policy objective.  Moreover, the necessity t est in the TBT and in VI:4 cannot be used to 
justify any violation of an obligation un der other provisions of the Agreement. 
23. The list of policy objectives in the general excep tions is an exhaustive one, while the list of 
policy objectives in the TBT and in the VI:4 account ancy disciplines is a non-exhaustive one.  This is 
due to the fact that the scope of application of th e general exceptions is more limited than that of 
domestic regulation provisions.  M easures taken under a general exception are in violation of an S/C/W/96 
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 agreement and therefore should be confined to some fundamental and li mited policy objectives 
(public morality, public health, public security, et c.), while TBT and VI:4 measures fall within WTO 
Members’ broad “regulatory autonomy” and are not in  violation of an agreement if they are necessary 
to achieve a wider range of legitimate policy objectives. 
B. L
EGITIMATE OBJECTIVES  
24. The necessity test links the measure with a legitimate policy objective.  The 1994 Panel 
Report on “United States – Taxes on Automobiles” found that the first step in the analysis under 
Article XX(g) of the GATT was to determine: 
“… whether the policy  in respect of which these provisions were invoked fell within the range 
of policies to conserve exhaustible natural resources.”1 
25. The 1990 Panel Report on “Thailand – Restricti ons on Importation of and Internal Taxes on 
Cigarettes” focused on the legitimacy of policy obj ective invoked by the Member, before testing the 
necessity of the measure to achieve that objective: 
“The Panel … defined the issues which arose unde r [Article XX(b)].  In agreement with the 
parties to the dispute and the expert from the WHO, the Panel accepted that smoking 
constituted a serious risk to human health and that consequently measures designed to reduce 
the consumption of cigarettes fell within the sc ope of Article XX(b).  The Panel noted that 
this provision clearly allowed contracting parti es to give priority to human health over trade 
liberalization;  however, for a measure to be  covered by Article XX(b) it had to be 
‘necessary’“2 
26. The determination of whether a policy objectiv e qualifies as a legitimate one is probably 
simpler in the case of an exception as the policy objectives listed in Article XX of the GATT (and 
XIV of the GATS) are a closed group.  The policy ob jectives in Article VI:4 disciplines might not be 
a closed group, but they would have to be relate d to the broad objective of ensuring the quality of the 
service, which is stated in indent (b) of VI:4.  For instance objectives such as consumer protection and 
ensuring professional competence woul d qualify as legitimate objectives. 
C. NECESSITY  
27. Once the legitimacy of the policy objective invoke d to justify a measure has been established, 
the next step consists in establishing whether that measure is “necessary” to achieve that objective.  A 
measure cannot be deemed necessary if satisfactory and effective alternative means to achieve the 
same objective are reasonably available to the Memb er enacting it.  In this respect the 1983 Panel 
Report on “United States - Imports of Cert ain Automotive spring Assemblies” conducted the 
following analysis: 
“The Panel considered whether the ITC ac tion, in making the exclusion order, was 
‘necessary’ in the sense of paragraph (d) of Article XX to secure compliance with 
United States patent law.  In this connecti on the Panel examined whether a satisfactory and 
effective alternative existed under civil cour t procedures which would have provided the 
patent holder Kuhlman with a sufficiently effectiv e remedy against the violation of its patent 
by foreign producers including the Canadian producer Wallbank Manufacturing Co. Ltd (Wallbank).”
3 
                                                      
1 DS31/R, (unadopted) 11 October 1994, para. 5.56. 
2 DS10/R, adopted on 7 November 1990. 
3 L/5333, adopted on 26 May 1983, para. 37.  S/C/W/96 
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28. If it is established that equally satisfactory and effective alternative means exist, the necessity 
test requires the Member whose measure is at i ssue to use, among the measures reasonably available 
to it, that which entails the least degree of trade restrictiveness.  An analysis of the meaning of 
“reasonably available least restrictive of trade means” was conducted by the 1989 Panel Report on 
“United States - Section 337 of the Tariff Act of 1930”: 
“It was clear to the Panel that a contracting pa rty cannot justify a measure inconsistent with 
other GATT provisions as “necessary” in terms of Article XX(d) if an alternative measure which it could reasonably be expected to employ  and which is not inconsistent with other 
GATT provisions is available to it.  By the sa me token, in cases where a measure consistent 
with other GATT provisions is not reasonably ava ilable, a contracting party is bound to use, 
among the measures reasonably available to it, that which entails the least degree of 
inconsistency with other GATT provisions.  The Panel wished to make it clear that this does 
not mean that a contracting party could be asked  to change its substantive patent law or its 
desired level of enforcement of that law, provided that such law and such level of 
enforcement are the same for imported and dom estically-produced products.  However, it 
does mean that, if a contracting party could r easonably secure that level of enforcement in a 
manner that is not inconsistent with other GATT provisions, it would be required to do so.”
4 
 
IV. TRANSPARENCY  
29. New domestic regulation disciplines should take  account of and build on Article III of the 
GATS.  It is therefore necessary to consider whether it would desirable to develop rules on 
transparency specific to licensing and qualifi cation requirements and procedures and technical 
standards, which would add value to the existing obligations contained in Article III and namely:  
(i) publishing promptly all relevant measures of ge neral application which pertain to or affect the 
operation of the GATS;  (ii) informing the Council for Trade in Services of the introduction of any 
new, or any changes to existing, laws, regulati ons or administrative guidelines which significantly 
affect trade in services covered by its specific commitments under the GATS;  and (iii) responding 
promptly to all requests by any other Member fo r specific information on any measures of general 
application and establishing enquiry points. 
30. Some of the rules on transparency contained in the Accountancy Disciplines clarify the 
application of Article III to the accountancy sector, rath er than add obligations to Article III.  This 
appears to be the case for paragraphs 3, 4 and 7 requiring Members to make publicly available 
specific information concerning the re quirements in the accountancy sector. 
“Members shall make publicly available, in cluding through the enquiry and contact points 
established under Articles III and IV of the GATS, the names and addresses of competent authorities (i.e. governmental or non-government al entities responsible for the licensing of 
professionals or firms, or accounting regulations).” (§3) 
 
“Members shall make publicly available, or sha ll ensure that their competent authorities make 
publicly available, including through the enquiry  and contact points: (a) where applicable, 
information describing the activities and professional titles which are regulated or which must comply with specific technical standards;  (b) requirements and procedures to obtain, renew 
or retain any licences or professional qualificati ons and the competent authorities’ monitoring 
arrangements for ensuring compliance;  (c) info rmation on technical standards;  and (d) upon 
request, confirmation that a particular professional or firm is licensed to practise within their jurisdiction.” (§4) 
                                                      
4 L/6439, adopted on 7 November 1989, para. 5.26. S/C/W/96 
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  … 
 
“Details of procedures for the review of administrative decisions, as provided for by Article VI:2 of the GATS, shall be made public , including the prescribed time-limits, if any, 
for requesting such a review.” (§7) 
 
31. If on the one hand this might serve a useful  purpose in the context of sector-specific 
disciplines, it is less clear whether it would be n ecessary to do the same at the horizontal level, 
considering the scope of application of Article III of the GATS.  There are, however, some transparency provisions, which would add value to Article III and which might  be worth considering 
in the development of horizontal disciplines on domes tic regulation.  For example, (i) providing the 
rationale for the requirements which a Member deem s necessary to achieve a certain policy objective 
and (ii) providing the opportunity for comments befo re the adoption of measures which significantly 
affect trade in services.  The first provision is  contained in paragraph 5 of the Accountancy 
Disciplines and in Article 2.5 of the TBT Agreement: 
“Members shall inform another Member, upon request, of the rationale behind domestic 
regulatory measures in the accountancy sector, in relation to legitimate objectives as referred 
to in paragraph 2.”  (Accountancy Disciplines, §5) 
 
“A Member preparing, adopting or applyi ng a technical regulation which may have a 
significant effect on trade of other Members shall, upon the request of another Member, 
explain the justification for that technical regula tion in terms of the provi sions of paragraphs 2 
to 4.”  (TBT, 2.5) 
 32. This type of provision could a dd an important element of transparency to the administration 
of domestic regulation by Members.  It would also strengthen the necessity test for domestic 
regulatory measures, by requiring Members to explai n the link between domestic regulatory measures 
and the policy objectives listed in the necessity provision. 
33. Paragraph 6 of the Accountancy Disciplines also contain a provision on the opportunity for 
comments on legislation significantly affecting tr ade in services, which might be relevant to 
horizontally applicable disciplines: 
“When introducing measures which significantly affect trade in accountancy services, 
Members shall endeavour to provide opportunity for comment, and give consideration to such 
comments, before adoption.” 
 
V. EQUIVALENCE  
34. In order to ensure that foreign service supp liers meet the qualification and other standards 
imposed on suppliers of national origin, regulators are often called upon to assess the equivalence of 
domestic and foreign qualifications .  In many cases they may require foreign applicants for  licences or 
other authority to provide a service to undergo tests or to fulfill conditions to demonstrate 
equivalence.  Since such tests are imposed in order to ensure that a domestic standard is met, they 
may be regarded as domestic regulations.  Article VI .4 disciplines, when they have been developed, 
would therefore require that such requirements should be no more burdensome than necessary to 
ensure the quality of the service.  Regulators in these situations could be ob liged to take account of 
qualifications already earned in the home country of the foreign service supplier and to modify 
accordingly any additional requirements imposed upon them.  This concept of equivalence has 
already been used in the qualification require ments section of the accountancy disciplines, in 
Article 2.7 of the TBT Agreement and in  Article 4.11 of the SPS Agreement:  S/C/W/96 
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 “A Member shall ensure that its competent au thorities take account of qualifications acquired 
in the territory of another Member, on the b asis of equivalency of education, experience 
and/or examination requirements”  (Accountancy Disciplines, para 19). 
 
“Members shall give positive c onsideration to accepting as equivalent technical regulations of 
other Members, even if these regulations diffe r from their own, provided they are satisfied 
that these regulations adequately fulfil the objectives of their own regulations.” 
(TBT, Art. 2.7) 
 
“Members shall accept the sanitary or phytosantiary measures of other Members as 
equivalent, even if these measures differ from their own or from those used by other Members 
trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve th e importing Member’s appropriate level of 
sanitary or phytosanitary protection.  For this purpose, reasonable access shall be given, upon 
request, to the importing Member for inspection,  testing and other relevant procedures.”  
(SPS, Art. 4.1) 
 
VI. INTERNATIONAL STANDARDS  
35. GATS Article VI:5(b) says that in determining whether the requirements are compatible with 
the principles of necessity, transparency and objec tivity, account shall be taken of international 
standards of relevant international organizati ons applied by Members. The term “relevant 
international organizations” refers to international bodies whose memb ership is open to the relevant 
bodies of at least all Members of the WTO.  This provision falls short of creating a presumption of “necessity” in favor of requirements based on international standards.
5  A presumption in favor of 
international standards could facilita te the application of the necessity test and would also constitute a 
strong incentive for the use of international standards. 
36. A strong presumption in favour of international standards within the necessity test is 
contained in Articles 2.5 of the TBT Agreement and 3.2  of the SPS: 
“… Whenever a technical regulation is prepared, adopted or applied for one of the legitimate 
objectives explicitly mentioned in paragraph 2, and is in accordance with relevant 
international standards, it shall be rebuttabl y presumed not to create an unnecessary obstacle 
to international trade.” (TBT 2.5) 
 
“Sanitary or phytosanitary measures which conf orm to international standards, guidelines or 
recommendations shall be deemed to be necessary to protect human, animal or plant life or 
health, and presumed to be consistent with the relevant provisions of this Agreement and of 
GATT 1994.” (SPS 3.2) 
37. The TBT and the SPS Agreements also contai n important rules requiring Members to use 
international standards as a basis for their technical regulations: 
“Where technical regulations are required and re levant international standards exist or their 
completion is imminent, Members shall use them, or the relevant parts of them, as a basis for 
their technical regulations except when such in ternational standards or relevant parts would 
be an ineffective or inappropriate means for the fulfilment of the legitimate objectives 
pursued, for instance because of fundamental clim atic or geographical factors or fundamental 
technological problems.” (TBT 2.4) 
                                                      
5A similar provision has been repeated in the section on technical standards of the Accountancy 
Disciplines. S/C/W/96 
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“To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measu res on international standards, guidelines or 
recommendations, where they exist, except as ot herwise provided for in this Agreement, and 
in particular in paragraph 3.” (SPS 3.1) 
 
38. Articles 2.6 of the TBT and 3.4 of the SPS require WTO Members to become involved in the 
work of international standardizing bodies: 
“With a view to harmonizing technical regulations on as wide a basis as possible, Members 
shall play a full part, within the limits of thei r resources, in the preparation by appropriate 
international standardizing bodies of internationa l standards for products for which they either 
have adopted, or expect to adopt, t echnical regulations.”  (TBT 2.6) 
 
“Members shall play a full part, within the limits of their resources, in the relevant international organizations and their subsidiary bodies, in particular the Codex Alimentarius 
Commission, the International Office of Epiz ootics, and the international and regional 
organizations operating within the framework  of the International Plant Protection 
Convention, to promote within these organizati ons the development and periodic review of 
standards, guidelines and recommendations with respect to all aspects of sanitary and phytosanitary measures.” (SPS 3.4) 
 
39. Article 3.5 of the SPS Agreement involves WT O Members even further in the work of 
international bodies on harmonization: 
“The Committee on Sanitary and Phytosanitary Measures provided for in paragraphs 1 and 4 
of Article 12 (referred to in this Agreement as the “Committee”) shall develop a procedure to 
monitor the process of international harmonization and coordinate efforts in this regard with 
the relevant international organizations.” 
40. The Decision on Professional Services mandating work on multilateral disciplines in the 
accountancy sector asked Members to make recomme ndations on the use of international standards 
and encouraged cooperation with the releva nt international standards organizations. 
41. Reference to the work of international standa rd setting bodies and to Members’ involvement 
in the adoption of international standards is al so contained in GATS Ar ticle VII:5 (Recognition): 
“Wherever appropriate, recogniti on should be based on multilaterally agreed criteria.  In 
appropriate cases, Members shall work in cooper ation with relevant intergovernmental and 
non-governmental organizations towards the establishment and adoption of common international standards and criteria for recogn ition and common international standards for the 
practice of relevant services trades and professions.” 
 
42. The presumption in favour of domestic regulator y measures based on inte rnational standards 
which exists in the TBT and SPS Agreements creates  an important benchmark for the necessity test 
by pointing at the least trade-restric tive measures which are adequate to secure  the policy objective in 
view.  In this respect, the TBT and SPS rules appear to be more focused than the existing reference to 
international standards in Article VI:5(b).  Other rules such as a requirement to use international 
standards or Members’ further involvement in the work of standard setting bodies would go even 
further, but would probably need to take account of the characteristics of the various services sectors.   
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