II and XVII. If a doctor is a doctor, a regulation that imposed greater qualification requirements on a doctor trained in Country A than on a doctor trained in Country B would violate Article II, or on a doctor trained abroad than on a domestic doctor would violate Article XVII. On the other hand, the narrower the definition of "likeness" the more measures will conform to Articles II and XVII. If a doctor trained in country A is not "like" a doctor trained in country B, then the treatment of the doctor trained in country A would have to be compared with the treatment of a doctor trained in a country with similar training standards, and the additional qualification requirement could then be found consistent with Article II. Crucially, the national treatment (Art XVII) and MFN (Art II) obligations would have limited force if likeness is in the eye of the regulator.

The market access (Article XVII) obligation differs from the other two provisions in that it prohibits only de jure quotas but not de facto quotas. So, it is only to be expected that the schedules under Article XVII list only explicit quantitative restrictions. Crucially, a Member is free today to implicitly restrict the number of service providers, for example by varying qualification standards – as the Japanese body responsible for regulating the accountancy profession reportedly used to do in order to limit the annual flow of qualified chartered accountants – or by imposing prohibitive entry fees –as the Zambian telecommunications ministry used to do in order to prevent foreign providers from establishing their own international gateways.

# **II.2** **_Challenges in implementing key trade disciplines_**

Whether there is de facto discrimination or a de facto quota depends entirely on how policy is implemented. The key mechanism for allowing entry in services is the license.<sup>5</sup> The license is defined broadly to cover any decisions or administrative actions, including authorizations or approvals, which allow a service provider to enter the market and provide a service. In this broad sense, virtually every service provider in virtually every country needs a license to operate – from an accountant and an architect to a bank and a builder. While licenses are almost always required, they are almost never issued in a non-discretionary manner. The limited evidence available from the World Bank Services Trade Restrictions Database suggests that licensing criteria are usually made public, reasons for denial are often provided, but the fulfillment of publicly stated criteria does not automatically lead to a license being issued (Figure 3).

Figure 3: Transparency, accountability and predictability

> 5 GATS Article XXVIII defines a “measure” to be “any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form.”  It is convenient to distinguish, as the GATS does, between “measures of general application” and other measures.  Measures of general application include laws, regulations and rules (which inhabit the GATS schedules) as well as standard administrative procedures.  Other measures include decisions and administrative actions, which are one-off acts implementing measures of general application.

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