上海自贸区跨境服务贸易负面清单制定的法律问题

上海自贸区跨境服务贸易负面清单的制定是落实《全面深化中国(上海)自由贸易试验区改革开放方案》,顺应国际服务贸易规则重构的重要举措之一。国民待遇的例外、市场准入的例外以及当地存在的要求是跨境服务贸易负面清单的涵盖范围;市场准入的例外不仅包括形式上的管理措施,还包括效果上的管理措施;当地存在与商业存在既有联系又有区别;跨境货物贸易与跨境服务贸易之间的界限值得厘清;兜底条款可纳入清单但适用应当谨慎。

Legal Issues on the Enactment of Negative List of Cross-border Trade in Services in Shanghai Pilot Free Trade Zone

The enactment of negative list of cross-border trade in services in Shanghai Pilot Free Trade Zone is aiming to achieve the goal of comprehensively deepening the reform and opening up program of China (Shanghai) Pilot Free Trade Zone and being one of the important measures in conforming to the rules of international trade in services. The scope of the negative list includes exception of national treatment, exception of market access and the requirement of local presence. The exception of market access not only includes the measures in pro forma, but also the measures in effect. There are both connections and differences between the requirement of local presence and commercial presence. It is necessary to clarify the boundary between cross-border trade in goods and cross-border trade in services. Miscellaneous provisions could be included in the list, but it should be cautious to apply it.