MEXICO – MEASURES AFFECTING TELECOMMUNICATIONS SERVICES
WT/DS204/R
2 April 2004
Report of the Panel
Ⅶ. FINDINGS
A.INTRODUCTION
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1. Telecommunications in the WTO
7.4 This case concerns obligations undertaken by Mexico as part of the GATS. The GATS, which is an integral part of the WTO Agreement, consists of a number of articles in its main body and several annexes, including an Annex on Telecommunications (the "Annex"). Both the main body of the GATS and the Annex are applicable to every WTO Member. In addition, each WTO Member has attached its own schedule to the GATS, in which the Member makes individual specific commitments on market access, national treatment, and any additional commitments the Member may wish to make. These specific commitments are inscribed by service sector and mode of supply of the service, and may be subject to limitations on market access and national treatment.
7.5 Special GATS negotiations intended to deepen and widen commitments in basic telecommunications were concluded in 1997. Members participating in these negotiations made commitments, or further commitments, in their schedules on market access or national treatment. Many, including Mexico, also made additional commitments in the form of a "Reference Paper", which contained a set of pro-competitive regulatory principles applicable to the telecommunications sector.
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4. Rules of interpretation (注：GATS解释时所需依照的规则)
7.14 The GATS constitutes an integral part of the WTO Agreement. As such, the GATS (including its annexes and schedules of specific commitments that are made an integral part of it under GATS Article XX:3) is one of the "covered agreements" and is therefore subject to the Dispute Settlement Understanding (the "DSU"). （注：GATS受到DSU协定调整）
7.15 Article 3.2 of the DSU provides that panels are to clarify the provisions of "covered agreements" in accordance with customary rules of interpretation of public international law. In US – Gasoline, the Appellate Body stated that the fundamental rule of treaty interpretation as set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "Vienna Convention") had "attained the status of a rule of customary or general international law" and "forms part of the 'customary rules of interpretation of public international law'". Since the commitments provided for in Mexico's Schedule are part of the terms of the treaty, the only rules which may be applied in interpreting the meaning of a commitment are the general rules of interpretation as set out in the Vienna Convention.
7.16 Article 31(1) of the Vienna Convention requires a treaty interpreter to determine the meaning of a term in accordance with the "ordinary meaning" to be given to the term "in its context", and in light of the "object and purpose" of the treaty. If, after applying the rule of interpretation set out in Article 31(1), it is desirable to confirm the meaning of the term, or the meaning of the treaty term remains ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable, Article 32 allows the treaty interpreter to have recourse to "supplementary means of interpretation, including the preparatory work on the treaty and the circumstances of its conclusion". （注：《维也纳条约法公约》第31和31条将发挥重要作用）
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B．Whether Mexico has fulfilled its commitments under Sections 2.1 and 2.2 of the Reference Paper (注：墨西哥是否履行《参考文件》中的承诺)
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1. Whether Mexico has undertaken an interconnection commitment, in Section 2 of its Reference Paper, with respect to the telecommunications services at issue
7.21 Section 2.1 of Mexico's Reference Paper commitment on interconnection specifies that it applies only "on the basis of the specific commitments undertaken" ("respecto de los cuales se contraigan compromisos específicos"). We must first therefore determine what the services at issue are, and through which of the four modes specified in Article I:2 of the GATS they are supplied. Only then can we determine whether Mexico has undertaken, with respect to these services, a commitment "on the basis" of which the interconnection commitment in Section 2.2 applies. Finally, in determining whether Mexico has undertaken interconnection commitments with respect to the services and modes of supply at issue, we must examine whether the "linking" of suppliers referred to in Section 2.1 of the Reference Paper covers not only domestic interconnection, but also international interconnection, understood as the linking of suppliers cross-border, including linking which involves traditional "accounting rate" regimes.
(a) What are the services at issue?
(…)7.24 The United States' claims regarding the services at issue relate to the GATS mode of supply known as cross-border supply of these services. However, the parties to do not agree that the services at issue are actually being supplied by this mode of supply. Consequently, the Panel must now turn to the issue of whether or not the services at issue are supplied cross-border.
(b) Are the services at issue supplied cross-border?
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7.29 The scope of the GATS is defined in Article I:1 as covering "measures by Members affecting trade in services". Trade in services is then defined in Article I:2 as "the supply of a service" through any of four modes of supply:
"(a)from the territory of one Member into the territory of any other Member;
(b) in the territory of one Member to the service consumer of any other Member;
(c)by a service supplier of one Member, through commercial presence in the territory of any other Member;
(d)by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member."
7.30 Subparagraph (a) describes what is referred to as "cross-border", or "mode 1", supply of trade in services.（注：此处为通常含义解释） The ordinary meaning of the words of this provision indicate that the service is supplied from the territory of one Member into the territory of another Member. Subparagraph (a) is silent as regards the supplier of the service. The words of this provision do not address the service supplier or specify where the service supplier must operate, or be present in some way, much less imply any degree of presence of the supplier in the territory into which the service is supplied. The silence of subparagraph (a) with respect to the supplier suggests that the place where the supplier itself operates, or is present, is not directly relevant to the definition of cross-border supply.
7.31 We now examine the context of subparagraph (a) to determine whether our interpretation, based on the ordinary meaning of the words of the provision, is correct.（注：上下文解释） Subparagraph (a) is one of four modes of supply which, as indicated above, are listed in Article I:2. If we look at the wording of the other modes of supply, we note that the silence in subparagraph (a) as regards the presence of the supplier of the service is in marked contrast to the modes of supply described in subparagraphs (c) ("commercial presence") and (d) ("presence of natural persons"). In both cases, the presence of the service supplier within the territory where the service is supplied is specifically mentioned. The context provided by subparagraphs (c) and (d) therefore suggests that, where the presence of the service supplier was required to define a particular mode of supply, the drafters of the GATS expressed this clearly.
7.32 Further contextual evidence that cross-border supply of the services at issue does not require the supplier to operate, or be present in some way, on both sides of the border is suggested by the definition of the basic telecommunications services at issue, which are defined in the GATS Annex on Telecommunications. The services at issue are "basic" telecommunications services and involve:
"the real-time transmission of customer-supplied information between two or more points without end-to-end change in the form or content of the customer's information." (emphasis added)
7.33 We note that this definition contains two closely linked elements that are relevant to our analysis: the transmission itself, and that which is transmitted – customer-supplied information. In our view, reading the word "transmission" alone as constituting the service, as Mexico does, fails to recognize the close link explicit in this definition. Moreover, the ownership or control of the means of transmission are nowhere addressed in this definition.
7.34 According to the definition, basic telecommunications services are services supplied "between two or more points". The definition nowhere indicates that a single supplier must undertake the transmission between the "points". The words "between two or more points" suggest, in fact, the contrary. Transmission to the various "points" requested by a customer requires ownership of or access to an expansive transmission infrastructure. It would be unreasonable to assume that the definition of telecommunications services applies only where a telecommunications supplier itself owns or controls a complete global infrastructure allowing it to reach every potential "point" requested by its customers. Had WTO Members intended this to be the case, they surely would have made it explicit in the definition.
7.35 We note that most WTO Members, including Mexico, scheduled their basic telecommunications services using the 1991 UN Provisional Central Product Classification ("CPC"). The CPC references provide more detailed descriptions of the services included in the GATS sectoral listing. With respect to the facilities-based telecommunications services at issue, further support for our conclusion that cross-border supply under Article I:2(a) does not require a supplier to operate, or to be present in some way, on both sides of the border, is provided by an examination of the CPC description of "public long distance voice telephone services" (CPC 75212), that is referred to under the item "voice telephone services" in the GATS sectoral list (W/120). The CPC description of this service states, in relevant part:
"Switching and transmission services necessary to establish and maintain communications between local calling areas. This service is primarily designed (used) to establish voice communications, but may serve other applications such as text communication (facsimile or teletex) and may be provided on a toll or flat fee basis. This service provides the customer with access to the supplier's and connecting carrier's entire telephone network or, in some instances, to a limited number or exchange areas (WATS service)." (emphasis added)
7.36 This definition makes clear that the service of long-distance telephony consists of giving a customer access to both "the supplier's and connecting operator's entire telephone network" (emphasis added). The definition of voice telephony services thus anticipates interworking of both operating networks in order for the service to be performed. No element of the definition implies or requires "end-to-end" service by one and the same operator. Moreover, when more than one operator is involved, the service supplied to customers includes access to the "entire networks" of both operators. The service supplied is not therefore the simple transmission of a voice message "up to" a connecting operator's network; rather, the service is defined as spanning both operators' networks. It therefore follows that supply of the service involves call completion spanning both operators' networks.
7.37 The CPC definition also specifies that the switching and transmission services supplied are those "necessary to establish and maintain communications" between local calling areas. We note the statement made by the United States on this point that:
"[m]aintaining 'communications' requires active coordination between operators on each side of the border, and is not two discrete services provided by different companies. For example, in order to complete a call, AT&T's switch must communicate with Telmex's switch, which is located within Mexico, not on the border."
7.38 We observe that basic telecommunications services supplied between Members do require, during the delivery of the service, a high degree of interaction between each other's networks, since the service typically involves a continuous, rapid and often two-way flow of intangible customer and operator data. The interaction results in a seamless service between the originating and terminating segments, which suggests that the service be considered as a single, cross-border service. (…)
7.43 Additional evidence, for the view that cross-border supply does not imply the presence of the service supplier in the market into which the service is delivered, is contained in a document entitled "Scheduling of Initial Commitments in Trade in Services: Explanatory Note" (the "Explanatory Note"), issued by the GATT Secretariat as a working document for the Group of Negotiations on Services. The Explanatory Note states that the supply of a service through telecommunications is an example of cross-border supply "since the service supplier is not present within the territory of the Member where the service is delivered". (emphasis added) We accord substantial interpretative weight to this statement. The Explanatory Note was requested by the Group of Negotiations on Services, and issued in September 1993, during a period of intense drafting of initial commitments to meet the deadline for the completion of schedules in December of that year. During and after that period, the Explanatory Note was heavily relied upon by negotiators to interpret their own and other negotiators' commitments. The Explanatory Note was revised somewhat in 2001 – without however modifying the statement with respect to the presence of cross border suppliers – and was adopted by the Council on Trade in Services as "Guidelines for the scheduling of specific commitments under the General Agreement on Trade in Services (GATS)" (the "Scheduling Guidelines"). Even though the Explanatory Note and the Scheduling Guidelines each state that they cannot be considered as "authoritative" or "legal" interpretations of the GATS, we find that the source, content, and use by negotiators of the Explanatory Note, together with its later adoption by Members as the Scheduling Guidelines, provides an important element with which to interpret the provisions of the GATS.
7.44 In interpreting the scope of cross border supply in Article I:2(a) of the GATS, we need not decide whether the Explanatory Note provides "context" (as an agreement or instrument made in connection with the conclusion of the GATS) under paragraph 2 of Article 31 of the Vienna Convention, or whether it can be "taken into account", together with the context, as a subsequent agreement or practice under paragraph 3 of the same provision. （注：专家组回避了对特定文件是否构成上下文的判断） In any case, we consider that the source, content and use of the Explanatory Note make it part of the "circumstances" of the conclusion of the GATS, within the meaning of Article 32 of the Vienna Convention. We may therefore properly have recourse to the Explanatory Note to confirm our understanding of the ordinary meaning of Article I:2(a) of the GATS.
7.45 For these reasons, we find that the services at issue, in which United States suppliers link their networks at the border with those of Mexican suppliers for termination within Mexico, without United States' suppliers operating, or being present in some way, in Mexico, are services which are supplied cross-border within the meaning of Article I:2(a) of the GATS.
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（c）Has Mexico undertaken commitments on the cross-border supply of the services at issue?
7.49 It remains for us therefore to examine whether, in the light of the limitations inscribed in its schedule, Mexico has made any specific commitments with respect to the cross-border supply of the services at issue and, if so, whether these represent full market access and national treatment commitments, in the sense of Articles XVI and XVII.（注：此处分析是否做出有关服务承诺）
（i）Cross-border services in Mexico's Schedule
7.50 We first examine Mexico's Schedule to determine which service sectors Mexico has made subject to cross-border commitments. We will start our analysis by looking at the inscriptions that Mexico has made in the sector column of its schedule, with respect to the services at issue.
aa) Service sectors inscribed in Mexico's Schedule (…)
bb) Introductory heading (…)
7.56 We recognize that, in examining the meaning of the expression "facilities-based" in Mexico's introductory heading, we need to give meaning and effect to all its terms, and not adopt an interpretation that would result in reducing any of its terms to redundancy. （注：所有表述均应具有充分含义） In seeking to give meaning to the term “facilities-based”, we observe that the requirement that the supply of the service be “based” on facilities logically implies that there could in principle exist supply that is not “based” on facilities. This suggests that a “facilities-based” network refers not to the existence of infrastructure (upon which any telecommunication service ultimately has to rely), but to the relationship between the infrastructure and the service. Under this interpretation, the term “facilities-based” in the introductory heading of Mexico’s Schedule could plausibly refer to services transported by an operator over its own infrastructure, and not over infrastructure leased from another operator.
7.57 Under this interpretation, a further issue arises as to whether the meaning of “facilities-based” qualifies only those services transported by an operator over its own infrastructure in the market from which the service is supplied, as the United States suggests. Examining the ordinary meaning of the terms in Mexico’s Schedule, in their context, the words “facilities-based public telecommunications networks” do not, on their own, suggest any geographical distinction. Mexico has placed this phrase in the column of its schedule entitled “sector”, which suggests that the phrase refers to the overall nature of the service, and not to the nature of the service with respect to any particular location of the supplier. Aspects of the supply of the service that relate to the location of the supplier are addressed in GATS by the four modes of supply. In a schedule, the inscriptions that inform the reader concerning the nature of the commitments in relation to the four modes of supply are found in the market access and national treatment columns, not in the sector column. Thus, the inscriptions in the market access and national treatment columns must be used to determine what limitations, if any, may affect the supply of a service based on the location of the supplier or its status (facilities-based or not) in a particular location. We therefore see no reason to read this geographical qualification into the meaning of “facilities-based”. Accordingly, we are not convinced by the United States’ argument that the phrase “facilities-based public telecommunication networks” found in the sector column of Mexico’s Schedule means, in itself, that Mexico’s commitments extend to any of the services at issue supplied by a cross-border supplier that uses its own infrastructure (and not leased capacity) in the market from which it is supplying, regardless of how these services are terminated in Mexico.
cc)Supplementary documents used to schedule commitments
7.58 We have arrived at this interpretation of the introductory heading in Mexico’s Schedule based on the wording of the heading within the context of the schedule. We now seek confirmation of the meaning of the introductory heading in the light of three important documents used by Members to provide guidance in drawing up their schedules: the Draft Model Schedule, the related Note by the Chairman, and the Scheduling Guidelines. We refer to these documents as the “supplementary documents”. (注：此处运用补充解释方法解释承诺)
i)Description of the supplementary documents
Draft Model Schedule
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The Note by the Chairman
7.64 A Note by the Chairman of the Negotiating Group on Basic Telecom, entitled "Notes for Scheduling Basic Telecom Services Commitments" was issued on 16 January 1997. The purpose was "to produce a brief and simple note on assumptions applicable to the scheduling of commitments in basic telecoms." Although the Note states that it is "not intended to have any binding legal status", it specifies that its purpose is "to assist delegations in ensuring the transparency of their commitments and to promote a better understanding of the meaning of commitments." The Note draws on the Draft Model Schedule, restating its categories and confirming that they are to be used in scheduling commitments. The Note states an important assumption: that, "unless otherwise noted in the sector column" any telecommunications service listed in the sector column "encompasses" or "may be provided" by or through all of the different "categories" of the service.
7.64 The Note by the Chairman was attached to the final Report of the Group on Basic Telecommunications, which was adopted on 15 February 1997. The Report states that the Chairman issued a Note "reflecting his understanding of the position reached in discussion of the scheduling of commitments" and that this Note "set out a number of assumptions applicable to the scheduling of commitments and was intended to assist in ensuring the transparency of commitments". (…)
Scheduling Guidelines
7.66 The Note by the Chairman, together with the Draft Model Schedule, were attached to the "Guidelines for the Scheduling of Specific Commitments under the General Agreement on Trade in Services (GATS)", (the "Scheduling Guidelines") which were adopted by Members in the Council on Trade in Services on 23 March 2001. The Scheduling Guidelines were an update of the Explanatory Note issued in 1993 for the Group of Negotiations on Services. The objective of the Scheduling Guidelines is "to explain, in a concise manner, how specific commitments should be set out in schedules in order to achieve precision and clarity."
ii)Interpretative value of the supplementary documents
7.67 The Draft Model Schedule and the Note by the Chairman were documents given considerable prominence by Members, since they were attached to the final Report adopted by the Negotiating Group on Basic Telecommunications in 1997. Members gave further prominence to these two documents by attaching them to the Scheduling Guidelines adopted by the Council for Trade in Services in 2001. Annex 2 of the Scheduling Guidelines is entitled "List of attached documents relevant for scheduling purposes". (emphasis added) Nonetheless, a footnote to the title of Annex 2 states that "[t]he fact that these documents are annexed to these guidelines should not be interpreted as changing their status." We accept that the footnote means that the attachment of the Draft Model Schedule and the Note by the Chairman to the Scheduling Guidelines should not in itself affect the existing interpretative status of the two documents. However, the footnote does not affect the interpretative status that the Draft Model Schedule and the Note by the Chairman might otherwise have, including the interpretative value derived from being attached to the Report by the Negotiating Group on Basic Telecommunications. Consequently, even if the Draft Model Schedule and the Note by the Chairman cannot be seen as part of the "context" under paragraph 2 of Article 31, nor be "taken into account" under Article 31 – a legal question that we leave open – we find that these documents are, with respect to the GATS Protocol on Telecommunications (to which Mexico's Schedule was attached) an important part of the "circumstances of its conclusion" within the meaning of Article 32 of the Vienna Convention. Under the terms of Article 32, we may therefore use the Draft Model Schedule and the Note by the Chairman to confirm the ordinary meaning, arrived at through the application of Article 31 of the Vienna Convention, of Mexico's GATS commitments on telecommunications services.
7.68 Confirmation of the interpretative value of the supplementary documents is provided by the extensive use in Members' schedules of the categories indicated in the Chairman's Note and Draft Model Schedule. Schedules on occasion indicate even finer distinctions in categories, where needed, to reflect accurately the nature of the services on which Members were undertaking commitments. In some cases, the categories are used to limit the scope of a subsector by distinguishing the categories of services that are being committed. In other cases, the categories are used to specify different levels of commitments for some categories of a subsector, as compared with other categories of the subsector. Typical examples in schedules include commitments that offer greater levels of access for a given service supplied on a facilities basis, or that specify that public telephony remains under monopoly while non-public telephony does not. The categories are often cited in the sector column of schedules, as provided in the Chairman's Note. In some schedules, however, categories are listed in the market access column instead of the sector column. In these cases, the entries nonetheless appear to clarify the category or categories of service to which the market access limitation itself applies. Indeed, for those schedules that use not categories at all, it is only by reference to these understandings that there can be certainty that the commitments "encompass" all of the forms in which the services may be supplied. Because of this extensive use in Members' schedules of principles set out in the Draft Model Schedule and the Note by the Chairman, we consider that substantial interpretative weight can be given to the supplementary documents.（注：专家组认定补充文件具有实质解释作用）
dd) Mexico's cross-border telecommunications commitments
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7.71 We find therefore that the use of the word "facilities-based" in the phrase "facilities-based public telecommunication network" contained in the introductory heading to Mexico's telecommunications commitments means that Mexico has undertaken commitments for the services at issue supplied only on a facilities basis over such networks – and not by resale or leased capacity. The examination of the supplementary documents thus confirm our interpretation of the ordinary meaning of the terms "facilities-based" in Mexico's Schedule.
7.72Nonetheless, Mexico's services sector listing does contain a subsector listing for "commercial agencies" ("comercializadoras"), defined as "[a]gencies which, without owning transmission means, provide third parties with telecommunications services by using capacity leased from a public network concessionaire." This subsector listing can be read only as an exception, for the services at issue that are supplied through leased capacity, to the general exclusion of such services expressed in the introductory heading. The separate commitment on supply of telecommunications services through leased capacity has meaning in the context of Mexico's Schedule, since supply in this manner is subject to market access limitations that are somewhat different from those inscribed with respect to facilities-based supply.
（ii）Market access and national treatment commitments for cross-bordersupply（注：市场准入与国名待遇问题分析）
7.73 We now consider what cross-border commitments Mexico has undertaken with respect to the services listed in the sector column of its schedule. For the services at issue, Mexico has inscribed certain cross-border commitments for market access and national treatment. In the national treatment column of its schedule, Mexico has inscribed "None". This term is a GATS scheduling convention which means "no limitations" – in other words, a full commitment. Mexico has therefore undertaken a full national treatment commitment for the cross-border supply of the services at issue.
7.74 With respect to market access for the cross-border supply of the services at issue, Mexico has inscribed the following:
"None, except the following: International traffic must be routed through the facilities of an enterprise that has a concession granted by the Ministry of Communications and Transport (SCT)."
7.75 The words "None, except" appear at the beginning of Mexico's inscription. The words that follow indicate that Mexico intends to grant full market access, subject only to the limitation described. Since Article XVI and scheduling conventions require that the inscription of a limitation must be read to mean that full market access is granted, subject only to any measures specifically inscribed, the inscription of the words "None, except" was not necessary.（注意：对承诺表中“无，除外”的解释）
7.76We now examine what sort of limitation, if any, on market access is achieved by Mexico's inscription that "[i]nternational traffic must be routed through the facilities of an enterprise that has a concession …". Article XX:1(a) sets out the general requirement for Members to "specify" the terms, limitations and conditions on market access for committed sectors in their schedule. "Specifying" requires that an entry describe each measure concisely, indicating the elements that make it inconsistent with Article XVI:2.
(iii) Mexico's "routing restriction"
7.77 We now examine whether the terms of the "routing restriction" in the market access column of Mexico's Schedule indicate that it comes within the scope of Article XVI:2. （注：对GATS第16条市场准入的分析） This provision contains six categories of measures that restrict market access. These categories differ depending on whether they place limitations on:（注：几种原则上市场准入承诺所禁止的限制措施）
(a)the number of service suppliers;
(b)the value of services transactions or assets;
(c)the number of service operations or quantity of service output;
(d)the number of natural persons that may be employed;
(e)the forms of legal entity; or
(f)the participation of foreign capital.
7.78 Mexico's routing restriction contains three main elements. The first element relates to "international traffic". The second element concerns traffic that "must be routed through the facilities of" an enterprise. The third and final element concerns "an enterprise that has a concession". We assess each of these elements in turn, with respect to their relevance to the six categories of market access measure set out in Article XVI:2.
aa)"International traffic"
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bb)"Routed through the facilities"
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7.84 We recall that the Chairman's Note provided guidance for Members making commitments in basic telecommunications. The use of the word "facilities" in the Note corresponds to a possible category by which a service sector could be narrowed down or refined. The category is referred to as the "facilities-based" supply of a service. We therefore find that the phrase "through the facilities of", placed in the context of the categories of the Chairman's Note, refers not to a requirement simply to use the equipment or physical assets of a Mexican concessionaire, but to supply the service on a facilities-basis, and not through capacity leased to the cross-border supplier.
7.85 We now assess whether this element of the routing restriction introduces a market access restriction in the sense of Article XVI:2, with respect to the cross-border supply of the service. To this end, it is necessary to assess the effect of this element on the relevant services listed by Mexico in its schedule. With respect to services falling under the main sectoral heading, this element would appear to reinforce the inscription in the main sectoral heading that the services committed must be supplied on a facilities-basis. However, this element of the routing restriction also further specifies that the terminating segment of cross-border supply not only may, but must, be supplied on a facilities-basis. This element of the routing restriction means, therefore, that supply of the service by means of one of the categories (over leased capacity) within Mexico is prohibited, and is subject to a zero quota in the sense of Article XVI:2(a), (b) and (c). We note that, while this limitation prohibits services that originate on a facilities basis from being terminated over leased circuits, it does not prevent these services from being supplied when they fall within the facilities-based category with respect to termination.
7.86 Therefore, this element of the routing restriction prohibits end-to-end International Simple Resale (ISR), and effectively eliminates the possibility of any cross-border supply of services over leased capacity. In this sense, with respect to cross border services supplied by commercial agencies, the routing restriction falls within the scope of Article XVI:2(a), (b) and (c).
cc)"Enterprise that has a concession"
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7.91We find overall therefore that the inscription in Mexico's Schedule of the routing requirement prohibits market access for the supply of the services at issue on a non-facilities basis (over capacity leased by an operator) in Mexico, but allows full access for the services at issue supplied on a facilities-basis (not over capacity leased by an operator) in Mexico – subject to routing the traffic through Mexican enterprises that have a "concession".
（d）Do Mexico's specific commitments provide "the basis" for its additional commitment on interconnection?
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（e）Do Mexico's additional commitments on interconnection apply to suppliers of cross-border services?
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(i)Ordinary meaning（注：通常含义的分析）
7.102 The ordinary meaning of the word "linking" is very broad. The general dictionary meaning of "link" is "a connecting part, whether in material or immaterial sense; a thing (occas. a person) serving to establish or maintain a connexion; a member of a series or succession; a means of connexion or communication." Similarly, the meaning of the verb form of "link" is "to couple or join with", and the phrase "to link up with" includes "by means of transport or system of communication". The dictionary meaning of the term link thus suggests that linking can involve any kind of connection between networks. The ordinary meaning of linking is broad and does not, in particular, imply any particular location of the object being linked. This ordinary meaning of link is consistent with the definition provided by a telecom glossary of a link as "a general term used to indicate the existence of communications facilities between two points".
7.103 Section 2 of Mexico's Reference Paper describes the form of linking to which it applies as that occurring "with suppliers providing public telecommunications transport networks or services". A "public telecommunications transport service" is defined in the Annex as:
"a telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally. Such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information.
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7.107That the drafters did not explicitly limit the scope of Section 2 by, for example, inserting the word "domestic", must have some meaning. This silence could be seen as an indication that the scope of interconnection under Section 2 is comprehensive and includes international interconnection. However, the fact that there is no hint of any language limiting the geographic location of the network of the supplier seeking to be linked in this Section does not conclude our task of determining the meaning of interconnection under Section 2. Other interpretative elements could, as argued by Mexico, indicate a different result.
（ii）Context provided by the term "interconnection"（注：上下文分析）
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7.111 We have not been provided evidence of laws or regulations of other Members which offer definitions or usage that indicate that the definition of "interconnection" is inconsistent with the ordinary meaning of the term "linking" in Section 2 of Mexico's Reference paper. We note that under EC law, the term "interconnection" is defined comprehensively in a manner that is consistent with the ordinary meaning of the term "linking".
7.112 A "special meaning" of the term "interconnection" in Section 2, inconsistent with the ordinary meaning of this term, is also not evident from an examination of the differences between domestic and international interconnection from commercial, contractual, or technical points of view.
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7.117In sum the ordinary meaning, in the heading of Section 2 of Mexico's Reference Paper, of the term "interconnection" – that it does not distinguish between domestic and international interconnection, including through accounting rate regimes – is confirmed by an examination of any "special meaning" that the term "interconnection" may have in telecommunications legislation, or by taking into account potential commercial, contractual or technical differences inherent in international interconnection. We find that any "special meaning" of the term "interconnection" in Section 2 of Mexico's Reference Paper does not justify a restricted interpretation of interconnection, or of the term "linking", which would exclude international interconnection, including accounting rate regimes, from the scope of Section 2 of the Reference Paper.
(iii) Other contextual elements
7.118 We now consider whether any other contextual elements within Mexico's Reference Paper may assist us in our interpretation of the scope of interconnection within Section 2. Mexico argues that certain obligations which arise from the interconnection commitment in Mexico's Reference Paper indicate that international interconnection, including through accounting rate regimes, should be excluded. Section 2.2 requires that interconnection be ensured "at any technically feasible point in the network". However, as already noted, this would not, contrary to Mexico's views, exclude linking to a point in a Mexican concessionaire's network that is located at the border. There is no reason why such a point would not be a "technically feasible point" in a network. Likewise, the requirement in Section 2.2(a) that the interconnection takes place "under non-discriminatory terms … and rates" does not in itself indicate that interconnection is restricted to domestic calls. Further, for the purposes of Section 2, it is just as necessary to ensure the interconnection of a cross-border service supplied "on the basis of the specific commitments", as it is for a supplier who is commercially present in the market.
7.119 The existence of dispute settlement provisions in Section 2.5 does not, in our view, provide contextual evidence that the scope of interconnection is restricted to domestic networks only. Section 2.5 provides for an "independent domestic body", which will "resolve disputes regarding appropriate terms, conditions and rates for interconnection within a reasonable period of time, to the extent that these have not been established previously." The fact that the adjudicating body is "domestic" does not suggest that it would have no jurisdiction over the conditions of linking of a foreign network with a domestic network at the border. Domestic regulations applicable within a Member, and subject to adjudication by the domestic bodies of that Member, can clearly also be applied by that Member at the border.
7.120A further element that may be taken into account, together with the context, in interpreting the notion of interconnection is "subsequent practice" by WTO Members. Article 31.3(b) of the Vienna Convention requires that the treaty interpreter take into account "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". The Appellate Body has defined this concept as a "concordant, common and consistent" sequence of acts or pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties [to a treaty] regarding its interpretation". Mexico claims that "all fifty-five WTO Members that inscribed the interconnection commitments in Section 2.2(b) of the Model Reference Paper maintain the traditional joint service accounting rate regime", including the United States. However, maintenance of a "joint service regime" that may be inconsistent with Reference Paper obligations does not necessarily establish that interconnection commitments under Section 2 were meant to exclude coverage of all international interconnection.
(iv) Object and purpose（注：目的宗旨）
7.121 A consideration of the object and purpose of the treaty – the GATS – would support the interpretation of "interconnection" derived through an examination of the ordinary meaning of the term in its context. Article I:1 of the GATS provides that the agreement extends to "measures affecting trade in services". Trade in services is defined in Article I:2 to include the cross-border supply of a service "from the territory of one Member into the territory of any other Member". This mode of supply, together with supply through commercial presence, is particularly significant for trade in international telecommunications services. There is no reason to suppose that provisions that ensure interconnection on reasonable terms and conditions for telecommunications services supplied through the commercial presence should not benefit the cross-border supply of the same service, in the absence of clear and specific language to that effect. Since the GATS deals specifically with international trade in services by four modes of supply that are considered comprehensive, it would indeed be unusual for interconnection disciplines not to extend to an obvious and important mode of international supply of telecommunications services – cross border.
(v) Supplementary means – the "Understanding"（注：解释之补充资料）
7.122 The rules of the Vienna Convention provide that "supplementary means" of interpretation may be applied in two cases. First, to confirm the meaning resulting from the application of the primary rules of interpretation – those we have applied up to this point. Second, to determine the meaning when the application of the primary rules leaves the meaning "ambiguous or obscure" or leads to a result that is "manifestly absurd or unreasonable". The supplementary means of interpretation include the preparatory work of the treaty and the circumstances of its conclusion.（注：对《维也纳条约法公约》解释之补充资料的分析）
(…)
7.137 Based on this delineation of the "accounting rates" that are within the scope of the Understanding, we can make several observations. First, not all international interconnection pricing was excluded from dispute settlement by the Understanding, only traditional accounting rate regimes with "differential rates". Second, the exclusion was from dispute settlement, not from the substantive obligations of the GATS, including its schedules of commitments. Third, the explicit aim of the exclusion was the MFN obligation under GATS Article II. Other obligations or specific commitments in the GATS, such as Section 2 of Mexico's Reference Paper were not specified. Fourth, not all traditional accounting rate regimes would be MFN inconsistent, even if they were not cost-oriented. In order to demonstrate the MFN inconsistency of a traditional accounting system regime, one would have to show that the rate is either a "measure" of a Member, or that it falls within a Member's obligations under Article VIII:1 on monopolies, and that different rates for different international routes amount to treatment less favourable with respect to one "like service" compared to another "like service". Finally, the existence of the Understanding demonstrates that, even though negotiators considered at length the issue of rates for international interconnection, they chose not to adopt wording that would have expressly excluded certain types of interconnection from the scope of the Reference Paper.
7.138 In sum, the Understanding seeks to exempt a very limited category of measures, temporarily, and on a non-binding basis, from the scope of WTO dispute settlement. Simply because Members wished to shield a certain type of cross-border interconnection from dispute settlement, because of possible MFN inconsistencies (with respect to differential rates), it does not follow that they wished to shield all forms of cross-border interconnection from dispute settlement. The clear intention to do so is not expressed in the Understanding. This suggests that the content and purpose of the Understanding is of limited assistance in interpreting the scope of application of the term "interconnection" in Section 2.1 of Mexico's Reference Paper.
7.139 Before leaving the Understanding, we note that the Understanding could arguably be considered as part of the interpretative "context" under the primary rules of interpretation in Article 31.2 of the Vienna Convention. In that case, the Understanding has to be seen as an instrument made "in connection with the conclusion of the treaty", and "accepted by the other parties as an instrument related to the treaty". Since the Report attaches draft schedules of commitments, including Mexico's Reference Paper commitments, to be appended to the Fourth Protocol, the Understanding might well be viewed as being made "in connection with the conclusion of the treaty". As the Understanding reflects the common view of negotiators on a matter affecting access to WTO dispute settlement on telecommunications matters, it would be difficult for parties to deny that it was an instrument "related to" the Fourth Protocol. However, even if viewed as "context", and not as a "supplementary means" of interpretation under Article 32 of the Vienna Convention, we would arrive at the same interpretative conclusion.
(vi) Supplementary means – other
(…)
7.142 We are not convinced by Mexico's argument that a broad interpretation of interconnection would lead in this sense to a result that is "manifestly absurd or unreasonable". First, a large and increasing proportion of all international traffic is routed outside the traditional accounting rate system. Second, the "outflows" predicted by Mexico would only occur if those other countries without cost-oriented international interconnection were able to maintain high interconnection charges, and at the same time were high net recipients of incoming calls. Third, traditional accounting rate regime charges are falling quickly, under influences such as the ITU-T D.140 Annex E Benchmarks, the 1997 United States FCC Benchmarks, use of leased lines, and new technology such as voice-over-IP. In sum, Mexico has not demonstrated that a requirement for Members having undertaken Reference Paper commitments to grant international interconnection at cost-oriented pricing to all other WTO Members would lead to results which were "manifestly absurd or unreasonable".
7.143 We find, therefore, that Section 2 of Mexico's Reference Paper applies to the interconnection of cross-border suppliers.
7.144 Since we have already found that Mexico has undertaken market access and national treatment commitments in its schedule with respect to the cross-border supply of the services at issue; and that these commitments can provide the basis for interconnection commitments in Section 2.2(b) of Mexico's Reference Paper; we are able to find overall that Section 2.2(b) of Mexico's Reference Paper applies to United States service suppliers supplying or seeking to supply the services at issue.
2. Whether Mexico has fulfilled its interconnection commitment, in Section 2.2(b) of its Reference Paper, with respect to the services at issue(…)
C. WHETHER MEXICO HAS MET ITS COMMITMENT UNDER SECTION 1 OF ITS REFERENCE PAPER"
(…)
D. WHETHER MEXICO HAS MET ITS OBLIGATION UNDER SECTION 5 OF THE GATS ANNEX ON TELECOMMUNICATIONS(…)
VIII.CONCLUSIONS AND RECOMMENDATION
8.1In the light of our findings, we conclude that:
(a)Mexico has not met its GATS commitments under Section 2.2(b) of its Reference Paper since it fails to ensure that a major supplier provides interconnection at cost-oriented rates to United States suppliers for the cross-border supply, on a facilities basis in Mexico, of the basic telecommunications services at issue ;
(b)Mexico has not met its GATS commitments under Section 1.1 of its Reference Paper to maintain "appropriate measures" to prevent anti-competitive practices, since it maintains measures that require anti-competitive practices among competing suppliers which, alone or together, are a major supplier of the services at issue;
(c)Mexico has not met its obligations under Section 5(a) of the GATS Annex on Telecommunications since it fails to ensure access to and use of public telecommunications transport networks and services on reasonable terms to United States service suppliers for the cross-border supply, on a facilities basis in Mexico, of the basic telecommunications services at issue;
(d)Mexico has not met its obligations under Section 5(b) of the GATS Annex on Telecommunications, since it fails to ensure that United States commercial agencies, whose commercial presence Mexico has committed to allow, have access to and use of private leased circuits within or across the border of Mexico, and are permitted to interconnect these circuits to public telecommunications transport networks and services or with circuits of other service suppliers.
8.2The Panel has found that, contrary to claims of the United States :
(a) Mexico has not violated Section 2.2(b) of its Reference Paper, with respect to cross-border supply, on a non-facilities basis in Mexico, of the basic telecommunications services at issue;
(b)Mexico has not violated Section 5(a) of the GATS Annex on Telecommunications, with respect to the cross-border supply, on a non-facilities basis in Mexico, of the basic telecommunications services at issue;
(c) Mexico has not violated Section 5(b) of the GATS Annex on Telecommunications, with respect to the cross-border supply, on a non-facilities basis into Mexico, of the basic telecommunications services at issue.
8.3 The Panel notes that, pursuant to Article 12.11 of the DSU, it has taken into account in its findings GATS provisions on differential and more-favourable treatment for developing country Members. In particular, the Panel has examined Mexico's arguments that commitments of such Members have to be interpreted in the light of Article IV of the GATS, paragraph 5 of the preamble to the GATS, and paragraph 5(g) of the Annex on Telecommunications The Panel emphasizes that its findings in no way prevent Mexico from actively pursuing the development objectives referred to in these provisions by extending telecommunications networks and services at affordable prices in a manner consistent with its GATS commitments.
8.4 The Panel notes that Article 19 of the DSU provides that "[w]here a panel … concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement." Unlike some other covered agreements (e.g. GATT Article XXIII:1 in connection with Article 3.8 of the DSU), the GATS does not require that, in the case of a violation complaint (GATS Article XXIII:1), "nullification or impairment" of treaty benefits has to be claimed by the complaining WTO Member and examined by a Panel. Whereas Article XXIII:1 of the GATT specifically conditions access to WTO dispute settlement procedures on an allegation that a "benefit" or the "attainment of an objective" under that agreement are being "nullified or impaired", the corresponding provision in the GATS (Article XXIII:1) permits access to dispute settlement procedures if a Member "fails to carry out its obligations or specific commitments" under the GATS. In this respect, we note that the Appellate Body in EC – Bananas III stated that the panel in that case "erred in extending the scope of the presumption in Article 3.8 of the DSU to claims made under the GATS". Having found that Mexico has violated certain provisions of the GATS, we are therefore bound by Article 19 of the DSU to proceed directly to the recommendation set out in that provision.
8.5 We therefore recommend that the Dispute Settlement Body request Mexico to bring its measures into conformity with its obligations under the GATS.
