Author : Carlo Maria Cantore
Release : 2015
Genre : Financial services industry
Kind : eBook
Book Rating : /5 ( reviews)
Book Synopsis Carve-outs for Prudential Measures and Trade in Financial Services by : Carlo Maria Cantore
Download or read book Carve-outs for Prudential Measures and Trade in Financial Services written by Carlo Maria Cantore. This book was released on 2015. Available in PDF, EPUB and Kindle. Book excerpt: Paragraph 2(a) of the GATS Annex on Financial Services is generally known as the Prudential Carve-Out (PCO). Essentially, it allows WTO Members to adopt the measures they deem appropriate for prudential reasons, when regulating trade in financial services. The provision has not yet been interpreted in WTO dispute settlement proceedings. However, it is extremely relevant in light of the 2008-2009 financial crisis and the regulatory developments that ensued worldwide. Few scholars have looked into the issue and it seems to be their common view that the PCO has to be classified in the technical sense as being an 'exception' to the obligations and the commitments of the GATS. This classification leads to important interpretative consequences, mostly with regard to the allocation of the burden of proof in the event of a dispute. The main argument of this thesis is that the PCO should rather be classified as a 'provision that excludes the application of other provisions'. This alternative interpretation is more consistent with the negotiating history of the provision, the negotiators' intention, as well as the economic rationale behind it. Characterizing the PCO in this manner has different implications for the allocation of the burden of proof (which should therefore fall on the complainant and not on the defendant) and for the degree of deference that WTO judges have to pay to the rights and the prerogatives of the regulators in the domain of financial services. The thesis is divided into three main parts. Part 1 is devoted to the negotiating history and the current understanding of the PCO in the literature and in relevant discussions of WTO Members in the Committee on Trade in Financial Services of the GATS. Part 2 analyzes the PCOs in all Preferential Trade Agreements notified to the WTO Secretariat up to December 2014, highlights the main features and categorises the different models of PCOs that have emerged. Part 3 is dedicated to the new approach advanced by the thesis. The final section of this part suggests an agenda for a reform of the PCO of the Annex on Financial Services of the GATS, taking into account the developments that have occurred in trade negotiations at the preferential level over the last twenty years.
