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§ 2. Teoretiko-legal aspects of the coordination of the determinate obligations defined in the course of negotiations on joining to the Marrakeshsky agreement on establishment of the World Trade Organization

As integral part of conditions of joining to the Agreement on WTO establishment obligations which are adjusted with each new candidate on an accession to WTO within the limits of negotiating process on an individual basis, - so-called specific obligations act.

Specific obligations contain in the Report on joining of the state to the Agreement on establishment of the WTO and documents applied on it - the Report of Working group, the List of concessions and obligations on the goods and the List of specific obligations on services [282 [283].

Lists are integral part GATT and GATS and have the same legal status, as well as these agreements. It causes importance of process of negotiations as agreed and to the statement of Lists. Lists fix legally connecting obligations of member states of the WTO on access on their commodity markets, services and service providers. "Linkage" is the centre of obligations on the WTO and has crucial importance for maintenance of legality and maintenance of stability and a transparency of the international commercial policy. It is important to understand also, that "linkage" is applied to all obligations provided in Lists each

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Member of the WTO.

According to article II GATT each state on an individual basis defines and establishes in the List of concessions and obligations on the goods the maximum rate of the customs duties which can be collected from the imported goods [284 [285]. Rules of given article urged to prevent detour of the level of linkage fixed in the List by means of introduction over this level of additional gathering and the duties which have been not specified in the List. It is obvious, that application of the rate of the customs duties above its maximum level will be infringement of the connected obligation. Besides, infringement will be also the establishment an importing monopolist of the margin on cost of the imported goods, decrease in the rate of the excise on a competitive domestic production, introduction of the tax to luxury [286 [287] [288]. Maintenance of the adjusted tariff concessions and prevention of their infringement is one of overall objectives GATT. Thereupon norms of articles I, II and III GATT are complementary.

GATT gives to members of the WTO the right to change or a response of concessions from the List. This right arises in the first day of each three-year period. For the given purpose members of the WTO are subdivided into three categories: members with whom the concession has been originally adjusted; the members who are the basic interested suppliers; the members essentially interested in a concession. Members from first two categories have the right to carry on negotiations on making agreement for indemnification. Members from the third category have the right only to participation in consultations. If the agreement on indemnification has not been reached, the concession can be all the same withdrawn, but in reply to it members from all three categories can withdraw originally adjusted essentially

294

Equivalent concessions.

Specific obligations on GATS are accepted regarding access on the market and grantings of a national treatment [289]. Also acceptance by the state of additional specific obligations [290] is provided.

For providing of access on the market by means of provided GATS ways of delivery of member state of the WTO are obliged to give each other not less favorable mode in comparison with what is fixed in its List

Specific obligations. The list resolved GATS restrictive measures is resulted in point 2 of article XVI GATS. The given list is settling. Differently, if standard documents,

Regulating import of services to the concrete state, other restrictions they do not join in the List of specific obligations [291 [292] will be established.

In spite of the fact that GATT and GATS have the identical purpose, process of liberalisation of services essentially differs from the same process concerning the goods within the limits of GATT. While liberalisation process on GATT provides carrying out of negotiations on linkage of tariff rates concerning the certain goods, features of trade in services

Cause more difficult character of process of negotiations on liberalisation. According to the state GATS independently defines sektory and podsektory services in relation to which it resolves access on the market, and also ways of delivery of services in these sectors. The state does not incur any obligations on liberalisation if the given sector is not specified in its List [293].

One more difference GATS from GATT concerns obligations on national treatment granting as which it is understood

Granting to foreign services and service providers of not less favorable mode in comparison with a mode which is established for domestic services and service providers [294]. The given norm represents simultaneously both the purpose, and the obligation. It is the purpose in the sense that each round of negotiations is intended for work in a direction of observance of the obligation on national treatment granting. But it as well

The obligation in the sense that members should apply a national treatment concerning all measures mentioning delivery of services in sectors, included in the List, and taking into account any conditions stated in it. Feature GATS consists that the national treatment in this case is not the community debt and it is given selectively - only in sectors and only on conditions in which relation the state has assumed liability [295 [296]. Such flexible approach allows the state to keep the considerable control over level of liberalisation of services that was especially important for reception of support of developing countries during the Uruguayan round [297 [298]. The obligation on granting of a national treatment within the limits of GATS is wider on volume, but is more limited in application in comparison with GATT. GATT extends only on trade in the goods, GATS operates not only concerning services, but also and concerning service providers. While GATT extends on «internal taxes and other internal gathering, laws, rules and requirements», influencing internal commercial operations concerning the goods, norms GATS are applied simply «concerning all measures mentioning delivery of services». In our opinion, exists a little

Questions in treatment of the obligation on granting of a national treatment within the limits of GATS which make the important impact on functioning of the given Agreement. The first question is caused by a parity of the maintenance of article XVI GATS with obligations on a national treatment under article XVII GATS. Uncertainty concerning sense of specific obligations arises because spheres of distribution of obligations on access on the market and to a national treatment accurately are not differentiated. Restrictions which are forbidden by article XVI GATS, include as discrimination, and

Not discrimination measures that creates crossings between sphere of application of obligations on access on the market and to a national treatment. Thus, measures which contradict both article XVI GATS, and article XVII GATS, cause potential divergences between obligations on access on the market and to a national treatment and lead to ambiguity of interpretation of these obligations. Article XX GATS defines a mode of operation in the given situation: if the measures incompatible with article XVI GATS and article XVII GATS are brought in a column with restrictions on access on the market it will be considered also as instructions on a condition or the reservation to the obligation on a national treatment [299]. The second question - whether extends the considered obligation for all ways of delivery of the services, provided GATS, or the state reserves the right to define ways of delivery of services in the territory. Unlike article XVI GATS, accurately specifying in necessity of granting of access on the market by means of all ways of delivery, concerning a national treatment in article GATS XVII such concrete definition is absent. There are only instructions that the national treatment is applied in sectors in which relation the given obligation is accepted, and on conditions and the requirements defined in the List. These positions cause uncertainty concerning, whether supposes the obligation on granting of a national treatment differentiation of ways of delivery, or it extends in an equal measure for all ways of delivery in sectors of services in which the obligation on access on the market was accepted. Besides, accurately it is not defined, whether the obligation on national treatment granting is independent in relation to the obligation on access on the market, or the national treatment is applied only in case the obligation on access on the market [300] was accepted.

Unlike the obligation on access on the market, concerning a national treatment the list of restrictions in GATS is not provided, that is the state independently defines measures by means of which it has the right to discriminate service providers of other state and includes them in the List of the obligations. At the same time GATS supposes application of withdrawals from a national treatment without their inclusion in the List in case they are formal and do not cause changes in conditions of a competition in favour of national services or service providers. Distinction in modes also is supposed, if it is caused by aspiration to provide fair or effective taxation by direct taxes of foreign services or service providers [301 [302] [303]. It is necessary to pay attention that the state is not obliged to give indemnification for the loss of competitive advantages caused by foreign character of services or service providers. It can be interpreted as granting to the possibility state to apply additional restrictions in the market of services without infringement of obligations

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On GATS.

The maintenance of specific obligations on GATS is defined by members of the WTO independently. The state defines what sector (podsektor) services it opens, and what keeps closed (completely or with withdrawals). All national lists of specific obligations correspond to a standard format which urged to facilitate carrying out of the comparative analysis. According to it obligations are divided into two kinds - horizontal and sectoral (vertical) obligations. Horizontal obligations cover simultaneously all sectors or podsektora services. In the list of sectoral obligations restrictions concerning concrete sectors or podsektorov services [304] are specified. The name of sectors of services is based on the classification list of sectors of the services, prepared by Secretary

GATT [305 [306] [307] according to the analytical list of the Organization of the Incorporated nations. Inclusion of sector or podsektora services in the List means acceptance by the state of obligations on access granting on the market and a national treatment concerning the given sector or podsektora on the conditions specified in the List. If the state does not wish to incur the obligation concerning any sector or podsektora in the List it is fixed by a phrase that in this case the state keeps regulation freedom in the given sector or podsektore "is not connected" with instructions. If the state has connected itself obligations on access on the market and to a national treatment it undertakes not to enter the new measures limiting trade by services. "Linkage" of obligations protects from possible negative changes in the relation of conditions of access on the market and a national treatment for services and service providers.

At the same time GATS the same as and GATT, fixes possibility of change or a response of any obligation from the List. It becomes possible after three years from an effective date of the given obligation. The control over the given procedure is provided by means of duty fastening to notify Council about trade in services not later than three months prior to date of planned changes. Besides, the member of the WTO, which benefit are mentioned as a result of changes, is allocated by the right to initiate negotiations on achievement of the agreement on indemnification. If the agreement is not reached, the question can be betrayed on Body consideration under the WTO resolution of disputes. If its decision is not executed, the dissatisfied party as a reciprocal measure can change or withdraw equivalent obligations. If darraigning procedure is not initiated by the dissatisfied party it means legalisation of modification of the List the party interested in it without indemnification [308].

Summing up to consideration of a question on specific obligations, it is possible to draw a conclusion on imbalance of the rights and obligations of the states within the limits of the WTO. It is connected by that the volume of specific obligations is not defined in advance and formed for each concrete state within the limits of negotiating process. The state joining the Agreement on establishment of the WTO, independently defines the maintenance of specific obligations and adjusts them within the limits of negotiating process on an individual basis. A consequence of it are different conditions of access on the markets of the foreign goods, services and service providers within the limits of the WTO.

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A source: Vaskina Anastas Jurevna. INTERNATIONAL LEGAL OBLIGATIONS of the STATE CONNECTED With JOINING To the MARRAKESHSKY AGREEMENT ON ESTABLISHMENT of the WORLD TRADE ORGANIZATION. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2017

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  2. § 3. The basic aspects of procedure of joining to the Marrakeshsky agreement on World Trade Organization establishment
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