Scheduling in WTO

A number of recent panels have dealt with scheduling issues. In GATS especially, there seems to be dissatisfaction across Members with the manne rin which the Mexico - Telecoms and the US - Gambling reports came out. The former clearly states in a rather lengthy footnote that moving away from what was probably agreed is not such a big deal, since technology moves us anyway to the brave new world where the panel first entered. Now scheduling related disputes are not new: recall that one of the arguments by the EC in EC - Bananas III was that its framework agreement was part of its concessions and that the fact that all WTO Members signed and certified the WTO package with the framework agreement in it, must mean something in terms of contractual arrangement across the WTO Membership. Recently, the EC - Chicken Cuts report took the bold (for WTO standards) view that the HS - treaty (and hopefully its interpretative rules as well) are context of the WTO and must be taken into account when schedules are at the centre of a dispute. This is a welcome change. The problem however, is that it might help resolve issues only with respect to classifications in the goods-context and up to the 6 digit level. We have limted tools to address the legitimacy of national (unilateral) classifications beyond the 6 digit level, except for references to the VCLT (which, I doubt whether it is in its entirety the appropriate instrument to use in such cases). And of course this report does not help us much when it comes to GATS disputes (where, I should add, the Scheduling Guidelines are not considered context but supplementary means, hence, of rather limited value). In short, I see such disputes multiplying over the recent years and no coherent analytical framework offered by WTO adjudicating bodies as to how to treat this issue. I have some thoughts on this score, but before I move there, I would first like to check whether you share the diagnosis.