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Before the suspension of GATS talks, members were divided over proposals aimed at developing new restrictions on domestic regulation. This refers to measures adopted with respect to qualification requirements and procedures, licensing procedures and requirements, and technical standards. Some countries were pressing to include a “necessity test” in the new restrictions that would require governments to show that the regulations they adopt are “not more burdensome than necessary”.

In its ongoing lobbying work, Education International has warned against the inclusion of a necessity test in the GATS.

“Applying a necessity test to domestic regulations ignores the reality of how educational standards and regulations and are developed,” explains EI’s deputy general secretary Elie Jouen. “These rules and standards are developed through compromises that impose neither the greatest burden nor the least burden on service providers. Requiring all regulations to be the least burdensome would limit both the content and the process for democratic decision-making.”

Jouen notes that all WTO members, but developing countries in particular, require flexibility to maintain and to extend their regulation of education services.

“As education systems develop, the need for additional regulation may arise,” says Jouen. “Therefore, it is important for countries to retain the flexibility to enact regulations suited to their developmental goals.”

Domestic regulation and education services

The scope of GATS coverage of education services may be broadened by proposed new disciplines on domestic regulation. The new obligations would build upon Article VI of GATS and would cover measures adopted by governments and professional bodies related to qualification requirements and procedures, technical standards, and licensing procedures and requirements. These categories are defined very broadly, leaving few service sector regulations untouched.

Qualification requirements and procedures refer both to the educational credentials or professional/trade certification requirements needed to provide a specified service, and to the ways that the qualification of a service provider is assessed. This is intended to capture all regulations related to examinations, documentation requirements, and verification of qualifications.

Technical standards, according to the WTO secretariat, refer not just to regulations affecting “technical characteristics of the service itself,” but also to “the rules according to which the service must be performed.” This is an extremely broad definition that would cover standards related to virtually all service sectors. In the area of education, it would likely apply to quality assurance requirements.

Licensing requirements could apply to not only professional licensing but also school accreditation as well as broadcast licenses, licensing of health facilities and laboratories, waste disposal permits, and municipal zoning procedures.]

At an informal meeting of the working party on domestic regulation in January, the chair, Peter Govindasamy of Singapore, circulated a paper on the necessity test in an attempt to broker a compromise. One suggested proposal would see the reference to the necessity test put into the preamble of any agreement on domestic regulation.

According to those attending the meeting, the chair’s paper was greeted with some skepticism from all sides.

An additional paper from the chair was distributed on proposed provisions on the transparency of regulations that would require governments to provide interested parties an opportunity to comment on them prior to their implementation. At the meeting, discussions on “prior comment” proved quite contentious, with developing countries from the African, Caribbean and Pacific (ACP) group raising concerns about the increased burden this would place on their regulators.