Positive and negative listing
In trade agreements, the parties can inscribe their commitments and exceptions in their schedules according to two different techniques – using a positive list or a negative list.
The choice of the technique, however, is not decisive for the range of commitments undertaken in a trade agreement.
The same degree of opening or protection can be achieved with a positive list as with a negative list.
When using a positive list, a trade partner has to explicitly (“positively”) list those sectors and subsectors in which it undertakes Market Access and National Treatment commitments.
As a second step, the trade partner lists all exceptions or conditions to these commitments, stating the Market Access and/or National Treatment limitations it wants to apply.
When using a negative list, trade partners only need to go through the second step.
They do not have to list the sectors for which they take commitments. All sectors or sub-sectors that are not listed are, by default, open to foreign service suppliers under the same conditions as for domestic service suppliers.
The parties list only those sectors or subsectors that they limit or exclude.
Where to find the lists in an agreement?
The trade partners typically uses two different annexes to inscribe their reservations in a negative list
- Annex I explicitly lists all existing national legislation which derogates from Market Access and/or National Treatment
- Annex II lists the sectors and subsectors for which the right to derogate in the future from Market Access and/or National Treatment is retained, including in cases where no measures currently exist
The EU has used both negative lists (for instance in the agreements with Canada and Japan) and positive lists (in the agreements with Korea, Singapore and Vietnam).
The EU has also accepted the use of the so-called ‘hybrid approach’ in TISA. Read more
The trade partners can also introduce so-called ‘standstill’ and/or ‘ratchet’ clauses when negotiating a trade agreement.
Such clauses frame the scope for introducing Market Access restrictions or discriminatory measures in the future.
Even when parties to a trade agreement open a sector, be it through a positive or negative list (and with or without standstill or ratchet), they can still maintain or introduce non-discriminatory legislation, such as for instance
- standards of treatment for patients
- capital requirements for banks
- qualification requirements for certain professions
- universal services obligations (e.g. for the postal sector)