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Reconciling Liberalized Trade in Financial Services and Domestic Regulation

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Chapter Summary

This chapter addresses potential conflicts that stem from different regulatory concepts and policies applied to financial services, by the World Trade Organization (WTO) and by national regulators, especially in the field of prudential business requirements. It analyzes the "prudential carve-out" provided by paragraph 2 of Annex on Financial Services to the GATS and suggests methods and solutions for defining its content. What is the relationship between the prudential carve-out and public morals exception in Article XIV (a) GATS? The chapter argues that since the two kinds of restrictions of liberalized trade address different objectives, in the financial services sector public morals may play a role only under extraordinary circumstances. It analyzes the available range of domestic policy objectives by reviewing relevant WTO jurisprudence, especially the decision in US-Gambling, being the first decision applying the concept of public morals not only in the context of GATS but WTO law as such.

Keywords: domestic regulation; financial services; General Agreement on Trade in Services (GATS); liberalized trade; national regulators; US-gambling; World Trade Organization (WTO)



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