Financial stability and liberalization of trade in financial services: some remarks about the role of international standards in the WTO legal system

One of the main issues debated within World Trade Organization (WTO) is the nature of the balance between the duty of States to remove barriers to trade flows and their right to regulate productive and commercial activities occurring under their jurisdiction. The contribution aims to analyse whether, and with what characteristics, a similar balance may be found in the WTO rules on trade in financial services. In particular, the discussion pertains to the normative framework introduced by the WTO for the liberalization of trade in services, the scope of the liberalization commitments undertaken by WTO Members in the financial sector and the discretion they have been left with to adopt domestic regulations favouring the stability of financial markets. The normative benchmark of the lawfulness of the regulatory choices informing national legislations may be found in non-WTO regimes. This issue is recognized by the GATS, and this contribution aims to evaluate how far opening up to external sources of law may also refer to the international financial standards promulgated by international bodies comprising national agencies with jurisdiction over the banking, insurance and securities markets. The work is based on a comprehensive study of the WTO regime, in an attempt to identify some common characteristics of its stipulations importing non-WTO rules into the multilateral trading regime. Consideration is also given to the features of the normative processes taking place within international financial standard setting bodies, in order to ascertain to what extent they fit into the WTO model.