¹ Inter alia M Kono, P Low, M Luanga, A Mattoo, M Oshikawa and L Schuknecht, ‘Opening Markets in Financial Services and the Role of the GATS’ (WTO Special Studies No 1, 1998) section IV.

² L Nachum, ‘Liability of Foreignness in Global Competition? Financial Services MNEs in the City of London’ (ESRC Centre for Business Research, University of Cambridge, Working Paper No 229, June 2002).

³ J Sach and A Warner, ‘Economic Reform and the Process of Global Integration’ [1995] Brookings Papers on Economic Activity 1.

⁴ N Bayraktar and Y Wang, ‘Banking Sector Openness and Economic Growth’ (World Bank Policy Research Working Paper No 4019, October 2006) 3.

⁵ R Chang, L Kaltani and N Loayza, ‘Openness Can Be Good for Growth: The Role of Policy Complementarities’ (World Bank Policy Research Working Paper 3763, November 2005).

⁶ Bayraktar and Wang (n 4) 21.

⁷ See below section III.B.

⁸ M Goldstein and P Turner, ‘Banking Crises in Emerging Economies: Origins and Policy Options’ (BIS Economic Paper No 46, 1996).

⁹ G Clarke, R Cull, M Soledad, M Peria and SM Sanchez, ‘Foreign Bank Entry: Experiences, Implications for Developing Economies, and Agenda for Further Research’ (2003) 18 World Bank Research Observer 43.

¹⁰ J Peek and ES Rosengren, ‘Collateral Damage: Effects of the Japanese Bank Crisis on Real Activity in the United States’ (2000) 90 American Economic Review 30–45.

¹¹ M Andenas and F Ortino (eds), WTO Law and Process (BIICL, London, 2005) 303–87 on GATS and Financial Services; and, generally, M Andenas and K Alexander (eds), WTO and Trade in Services (Brill MArtinus Nijhoff Publishers, The Hague, 2007).

¹² Most of the WTO agreements were made during the 1986–94 Uruguay Round negotiations. This consists of about 60 agreements and decisions. GATS is actually Annex 1B of the Agreement Establishing the World Trade Organization. Marrakesh Agreement, Art II:1. See <http://www.wto.org/english/docs_e/legal_e/legal_e.htm> (last visited 6 June 2007).

¹³ GATS, Art I:3(b).

¹⁴ GATS, Art II.

¹⁵ GATS, Art III.

¹⁶ The proliferation of regional trade agreements is vast and increasing. GATS Article V allows regional trade under certain requirements. Currently, there are 367 regional trade arrangements notified to the WTO, of which 214 are in force. <http://www.wto.org/english/tratop_e/region_e/region_e.htm> (last visited 6 June 2007). RV Fiorentino, L Verdeja and C Toqueboeuf, ‘The Changing Landscape of Regional Trade Arrangments: 2006 Update’ (WTO Discussion Paper No 12, 2007).

¹⁷ GATS, Art II:2 and 3.

¹⁸ GATS, Art III.

¹⁹ GATS, Art VI:4(a).

²⁰ GATS, Art XVI.

²¹ GATS, Art XVII.

²² GATS, Art XVI:2.

²³ GATS, Art XVIII.

²⁴ GATS, Art XVI:2(a)–(f). Emphasis added by author.

²⁵ See K Alexander, ‘GATS and Financial Services: The role of regulatory transparency’ (2007) 20 Cambridge Review of International Affairs 122.

²⁶ GATS, Art I:2(a)–(d).

²⁷ This issue is closely related to the proliferation of the Washington Consensus. The Washington Consensus is the macro-economic policy package that has been prescribed for most developing countries by international financial institutions. It was coined by Williams in 1990, depicting the neo-liberal policies of the IMF and the US administration requesting the liberalisation of the capital account and general application of market economics. J Williamson, ‘What Washington Means by Policy Reform’ in J Williamson (ed), Latin America Adjustment: How Much Has Happened? (Institute for International Economics, Washington, DC, 1990) 7–20.

²⁸ This is closely related to Keeley's charter value hypothesis which states that too much competition in the banking market causes financial instability. MC Keeley, ‘Deposit Insurance, Risk and Market Power in Banking’ (1990) 80 American Economic Review 1183–1200.

²⁹ T Treves, ‘Chapter 5 Monetary Sovereignty Today’ in M Giovanoli (ed), International Monetary Law: Issues for the New Millennium (OUP, Oxford, 2000) 111–18.

³⁰ Some countries will have a universal banking model, while others will segregate commercial and investment banking. Some members will have many government-run banks while others will have none. Each of these characteristics will affect how regulation is carried out.

³¹ Small economies may experience severe financial difficulties if the economy is liberalized without certain safeguard mechanisms and an unrelated incident causes a sudden outflow of capital.

³² The Protocols attached to GATS runs from the Second and Fifth Protocols, but there is no first protocol.

³³ Progressive liberalisation is required as a result of Article XIX and XXI of GATS.

³⁴ GATS, PArt IV, Art XIX, XX and XXI.

³⁵ K Alexander, ‘The World Trade Organization and Financial Stability: The Balance between Liberalisation and Regulation in the GATS’ (CERF paper, University of Cambridge, 2003) 9.

³⁶ GATS, Art VI.

³⁷ GATS, Art VI:4.

³⁸ ibid.

³⁹ More in-depth analysis of the prudential carve out will be carried out in Section VI.

⁴⁰ In the general exceptions Article of GATS, Art XIV, the word ‘necessary’ is used and it is assumed that for exceptions to be applicable, the member needs to demonstrate the ‘necessity’ of taking certain measures for them to be exempt. This is not the case for paragraph 2 of the Annex on Financial Services, which does not include ‘necessary’ as criteria for taking prudential regulations which do not conform with provisions of the Agreement.

⁴¹ GATS, Art XII:1.

⁴² GATS, Art XII:2(b).

⁴³ GATS, Art XII:4. This is delegated to the Committee of Balance-of-Payment Restrictions.

⁴⁴ S Key, The Doha Round and Financial Services Negotiations (AEI, Washington, DC, 2003) 67, fn 8.

⁴⁵ The drafting of the schedule of commitments varies much between members. Some are very legalistic while some are basic. The details of schedules differ as well, making some schedules ambiguous on their contents. The mixed level of drafting is a reflection of the nature of the GATS negotiations and its formation.

⁴⁶ Universal service obligation is an ongoing issue within GATS, especially telecommunications. The only mention within GATS would be in the GATS Preamble, para 4. The Preamble expressly recognizes ‘the right of Members to regulate and to introduce new regulations, on the supply of services within their territories in order to meet national policy objectives …’ R Adlung, ‘Public Services and GATS’ (WTO Working Paper ERSD-2005-03, July 2005) 22.

⁴⁷ The Reference Paper was devised by a group of interested countries and then broadly recommended for inscription as an additional commitment under Article XVIII. Almost all 69 Members, which participated in the extended negotiations on basic telecommunications, proceeded accordingly. WTO, Negotiating Group on Basic Telecommunications, ‘Telecommunications: Reference Paper’ (24 April 1996).

⁴⁸ The so-called ‘Reference Paper’ in the area of basic telecommunications, codifies, in addition to the Annex on Telecommunications and Article VIII, a number of basic competition-related disciplines. The Reference Paper leaves a wide scope for members to pursue universal service objectives and explicitly confirms their right to define their scope and content. The relevant section reads: ‘Any Member has the right to define the kind of universal service obligation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Member’.

⁴⁹ For example, financing to agriculture efficiently and cost effectively is a major policy issue for policy makers in developing countries. However, financial institutions tend to favour cities with more business opportunities. This leads both domestic and foreign financial institutions to prefer their branching to be carried out in urban areas. If the obligation to establish a certain number of branches or a proportion of loans to agriculture is placed on both domestic and foreign banks, this would adhere to national treatment and become a universal service obligation.

⁵⁰ GATS, Art XII:1.

⁵¹ GATS, Art XII:2(a).

⁵² GATS, Art XII:2(b).

⁵³ GATS, Art XII:2(e).

⁵⁴ GATS, Art XII:1(d).

⁵⁵ Members that have applied GATT Art XII to restrict trade due to balance of payment difficulties include Bangladesh, Pakistan, Romania, Slovak Republic and Tunisia. Referring to relevant documents of the Committee on Balance-of-Payment Restrictions which is the consulting committee for balance of payment issues as laid down in GATS Article XII:5(a). eg, WTO, WT/BOP/R/55 (23 November 2000), WT/BOP/R/59 (11 October 2001).

⁵⁶ GATS, Art XII:4.

⁵⁷ Part III, Specific Commitments, GATS, Arts XVI–XVIII.

⁵⁸ GATS, Art XIX.

⁵⁹ GATS, Art XX.

⁶⁰ GATS, Art XXI.

⁶¹ GATS, Art XIX:1.

⁶² GATS, Art XVI.

⁶³ GATS, Art XVIII.

⁶⁴ GATS, Art XX:1.

⁶⁵ GATS, Art XX:2.

⁶⁶ GATS, Art XX:3.

⁶⁷ United States of America, Schedule of Specific Commitments, Attachment to the United States Schedule, Additional Commitments Paper I.

⁶⁸ Brazil, Jamaica and the Philippines have yet to complete the ratification of the Fifth Protocol. Committee on Trade in Financial Services, WTO, ‘Report of the Meeting Held on 27 November 2006’ (S/FIN/M/53, 30 November 2006).

⁶⁹ To mitigate the difficulty of agreeing in multilateral negotiations in the WTO, some members have been promoting the use of Free Trade Agreements and Economic Partnership Agreements (EPA) that negotiate liberalization and economic cooperation on a bilateral basis. eg, even Japan which is a late comer to regional economic agreement has a stated policy to promote EPAs to complement current negotiations of WTO. See Ministry of Foreign Affairs, <http://www.mofa.go.jp/policy/economy/fta/index.html> (last visited 8 June 2007).

⁷⁰ Indonesia, Schedule of Specific Commitments. In the schedule, Indonesia declares, both for banking and non-banking financial services, that markets will be liberalized if the commitment is mutual.

⁷¹ ASEAN, ‘ASEAN Vision 2020’ (Kuala Lumpur, 15 December 1997) available online at <http://www.aseansec.org/1814.htm>.

⁷² Council for Trade in Services, Special Session, ‘Communication from the European Communities and Their Member States GATS 2000: Financial Services’ (S/CSS/W/39, 22 December 2000) para 10.

⁷³ ibid paras 8–10.

⁷⁴ ibid para 15.

⁷⁵ Financial regulators have been sceptical of mode 1 and mode 2 which are considered difficult to monitor with present supervisory tools.

⁷⁶ GATS, Art XXVIII:(d)

⁷⁷ Understanding on Commitments in Financial Services, D:1.

⁷⁸ (n 72) para 16.

⁷⁹ H Nakai, ‘The Real Objective: Protectionism or Supervisory Requirement’ (Financial Business, Winter 2007) 95–97 (in Japanese).

⁸⁰ Japan, Schedule of Specific Commitments.

⁸¹ Committee on Trade in Financial Services, WTO, ‘Report of the Meeting Held on 19 September 2005’ (S/FIN/50, 23 September 2005) D. Technical Issues (paras 65–76).

⁸² Some argue that the difference between mode 1 and 2 should be discussed in the horizontal context, covering all service sectors. Committee on Trade in Financial Services, WTO, ‘Report of the Meeting Held on 23 June 2005’ (S/FIN/49, 24 August 2005) C. Technical Issues.

⁸³ ibid para 17.

⁸⁴ C Goodhart, P Hartmann, D Llewellyn, L Rojas-Suarez and S Weisbrod, Financial Regulation: Why, How and Where Now? (Routledge, London, 1998) 5; and the discussion of these concepts in C Hadjiemmanuil and M Andenas, ‘Banking Supervision and European Monetary Union’ (1999) Journal of International Banking Regulation 84–102; M Andenas and L Panourgias, ‘Applied Monetary Policy and Bank Supervision by the ECB’ in JJ Norton and M Andenas (eds), International Monetary and Financial Law Upon Entering the New Millennium (BIICL, London, 2003) 119–70.

⁸⁵ The general obligations of a fiduciary duty are: a duty of care; should not permit their private interests to conflict with their duty to a beneficiary of the duty; should not permit their duty to one beneficiary to conflict with their duties to another; should not make a secret profit; and have a duty of confidentiality. Banks are imposed additional duties of care ‘in circumstances of which give rise to a relationship of trust and confidence’. However, banks by their core operation of deposit taking and lending do not give rise to fiduciary duty. R Cranston, Principles of Banking Law (2nd edn, OUP, Oxford, 2002) 187–88, and EP Ellinger, E Lomnicka and RJA Hooley, Ellinger's Modern Banking Law (4th edn, OUP, Oxford, 2006) 127–35.

⁸⁶ Basel Committee on Banking Supervision, ‘Core Principle for Effective Banking Supervision’ (Oct 2006).

⁸⁷ The Basel Committee on Banking Supervision recommended their first capital adequacy formula in July 1988 drawing out the definition of core capital, supplementary capital, and risk weights. See Basel Committee, ‘International Convergence of Capital Measurement and Capital Standards’ (July 1988).

⁸⁸ This report, the so called Basel Accord, addresses three basic components of capital regulation:

• •

  • an agreed definition of Tier 1 (core) capital and a menu of Tier 2 capital;

• •

  • a general framework that allocates both bank assets and off-balance sheet items to risk categories while providing requisite procedure for calculating the minimum capital ratio; and

• •

  • a schedule for achieving a minimum ratio of total capital-to risk-weighted assets and off-balance sheet items of 8 per cent.

⁸⁹ RA Cole, BG Cornym and JW Gunther, ‘FIMS: A New Monitoring System for Banking Institutions’ [January 1995] Federal Reserve Bulletin 1–15.

⁹⁰ See M Yokoi-Arai, Financial Stability Issues: The Case of East Asia (Kluwer, The Hague, 2001) ch 2, especially Table 2-2, and ch 3, Table 3–6.

⁹¹ The Basel Core Principles states the maximum LLL to be 25 per cent of bank capital. The actual rate differs between countries, with the US at 15 per cent, EU directive at 25 per cent and Japan at 25 per cent. In some emerging economies, such as Indonesia, which have suffered from connected lending, the LLL is 10 per cent.

⁹² A Sheng, ‘Bank Supervision: Principles and Practice’ (World Bank Institute Working Papers, 1990) 13.

⁹³ Core Principe 3, Basle Committee, ‘Core Principles for Effective Banking Supervision’ (September 1997).

⁹⁴ Basel Committee, ‘A New Capital Adequacy Framework’ (June 1999) and Basel Committee, ‘International Convergence of Capital Measurements and Capital Standards: A Revised Framework’ (June 2004).

⁹⁵ For details of the developments of Basel II, see M Yokoi-Arai, ‘The Basel II in the National Sphere’ [Fall 2005] EBRD Law in Transition, available online at <http://www.ebrd.com/pubs/legal/lit052d.pdf> (last visited 7 June 2007).

⁹⁶ Financial Services Authority, ‘Principles-Based Regulation: Focusing on the Outcomes that Matter’ (April 2007) and Financial Services Agency of Japan, ‘Regulatory Methods of the Financial Services Agency’ (Presentation to the Third Study Group on the Internationalisation of Japan's Financial and Capital Markets, 1 March 2007) available online at <http://www.fsa.go.jp/singi/singi_kinyu/s_group/siryou/20070301.html> (last visited on 1 June 2007).

⁹⁷ For a discussion of market discipline, see M Yokoi-Arai, ‘The Balance of Market Discipline in Bank Regulation’ in L Gorton (ed), Breakdown of Public & Private Dichotomy in Commercial and Financial Law (Studentlitteratur, Lund, Stockholm, 2003) 81–105.

⁹⁸ ibid.

⁹⁹ C McCArthy, ‘Financial Regulation: Myths and Reality’ (Speech to the British American Business London Insight Series And Financial Services Forum, 13 February 2007) available online at <http://www.fsa.gov.uk/pages/Library/Communication/Speeches/2007/0213_cm.shtml> (last visited on 25 March 2007).

¹⁰⁰ Financial Services Agency of Japan (n 96).

¹⁰¹ The failure of Herstatt was the first instance in which foreign exchange and settlement risks were realized in a cross-border transaction. Having sustained substantial foreign exchange losses, Herstatt stopped clearing its accounts at 4pm on 26 June 1974. Due to its large foreign exchange business, this left many payment commitments unpaid. Herstatt's correspondence bank in New York, Chase Manhattan, refused to honour US$620 million in payment orders which nearly collapsed the US clearing system and international banking system. See about certain consequences of regulatory failure in M Andenas and D Fairgrieve, ‘To Supervise or to Compensate? A Comparative Study of State Liability for Negligent Banking Supervision’ in M Andenas (ed), Court Review in International Perspective Liber Amicorum for Gordon Slynn (Kluwer Law International, London/The Hague/Boston, 2000) 333–60.

¹⁰² Basel Committee (n 87).

¹⁰³ HH Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599–2659; and F Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (CUP, Cambridge, 1989).

¹⁰⁴ See Kratochwil (n 103) 48.

¹⁰⁵ The IMF has rejected the accusation that the drafting by its staff would in itself compromise the ownership of the Letters of Intent. IMF, ‘Conditionality in Fund-Supported Programs—Policy Issues’ (16 February 2001) 41.

¹⁰⁶ In stricto sensu, IMF conditionality is not a legal concept, but a promise between the IMF and the borrowing country.

¹⁰⁷ Washington consensus refers to the policy of the IMF and the US administration that the sooner the capital account is liberalized, the better. It is based on neo-classical economic thinking which dominates Washington policy makers. The Washington consensus was partly supported by the application of conditionality on the IMF lending borrowers which necessitated capital account liberalization.

¹⁰⁸ The Council for Trade in Services is the highest council in the hierarchy of service sector committees. There are other groups such as the domestic regulation group that discuss horizontal issues, but no permanent committee that deals with a sector specifically like the Council on Trade in Financial Services. There are negotiating groups that are sector specific but are not permanent.

¹⁰⁹ GATS, Annex on Financial Services, 2(a).

¹¹⁰ GATS, Annex on Financial Services, 3(a).

¹¹¹ (n 72) para 20.

¹¹² Council for Trade in Services, Special Session, ‘Report of the Meeting Held on 3–6 December 2001’ (S/CSS/M/13, 26 February 2002) paras 267–76.

¹¹³ Basel Committee is a group of G10 financial regulators. There are regional supervisors' fora that discuss the Basel Committee findings. The participants of IOSCO and IAIS are more global, making their consensus building more time consuming than the Basel Committee.

¹¹⁴ Council for Trade in Services, Special Session, ‘Report of the Meeting Held on 3–6 December 2001’ (S/CSS/M/13, 26 February 2002) para 275.

¹¹⁵ ibid paras 267–72. Japan, Australia, EU, Norway, Korea and US.

¹¹⁶ GATS, Arts XIV and XIV bis.

¹¹⁷ When an exception begins with ‘necessary’, it signifies the need to show the necessity of the measure.

¹¹⁸ Alexander (n 35) 25.

¹¹⁹ GATS, Annex on Financial Services, 3.

¹²⁰ GATS, Annex on Financial Services, 2(a) latter part.

¹²¹ 2007 US–EU Summit, ‘Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union’ (30 April 2007) available online at <http://www.whitehouse.gov/news/releases/2007/04/20070430-4.html> (last visited 3 May 2007).

¹²² ibid Annex 6 Financial Markets, E and F.

¹²³ GATS, Annex on Financial Services, para 3.

¹²⁴ E Tafara and RJ Peterson, ‘A Blueprint for Cross-Border Access to US Investors: A New International Framework’ (2007) 48 Harvard International Law Journal 31–48.

¹²⁵ Banking Consolidation Directive, Preamble 7, 14, 21 and 22, and Article 26. The host country retains its power for supervision of liquidity and monetary policy as well as for gathering information for statistical purposes. European Parliament and Council Directive 2000/12 of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions [2000] OJ l126, as amended by European Parliament and Council Directive 2000/28/EC [2000] OJ L275 (Consolidated Banking Directive).

¹²⁶ As first stated in the Second Banking Directive. Second Council Directive 89/646 of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions, [1989] OJ L386.

¹²⁷ Relevant Articles are 5(1) (initial capital), 7 (shareholders and member, fit and proper rules), 16 (qualifying holding in a credit institution), 51 (limits to a non-qualifying holding) and 17 (procedures and internal control measures).

¹²⁸ This includes the Capital Requirement Directives, the Deposit Guarantee Directive and the Financial Conglomerates Directive and Life Insurance Directive and Solvency I for non-life directive. Respectively, Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) and Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast), Council Directive 94/19/EC of 30 May 1994 on deposit guarantee schemes, Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/67/EC and 2000/12/EC of the European Parliament and of the Council, Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (recast), and Directive 2002/13/EC of the European Parliament and of the Council of 5 March 2002 amending Council Directive 73/239/EC as regards the solvency margin requirements for non-life insurance undertakings.

¹²⁹ One of the signifying events has been the US' limited application of the Basel II rules. Basel II is required for large and internationally active banks only. See M Yokoi-Arai, ‘The Basel II in the National Sphere’ [Fall 2005] EBRD Law in Transition, available online at <http://www.ebrd.com/pubs/legal/OL05.htm>; and Board of Governors of the Federal Reserve System, Press Release (2 November 2007).

¹³⁰ Treves (n 29) 111–18.

¹³¹ The competitiveness of financial markets has been a topic hotly debated in financial circles in recent years, and the annual City of London survey on the competitiveness of the financial market has attracted much attention. The March 2007 survey places London as the most competitive with New York as a close second place. Z/Yen, Global Financial Centres Survey (March 2007, commissioned by the City of London).

¹³² Tafara and Peterson (n 124) 32.

¹³³ ibid.

¹³⁴ T Beck, A Demirguc-Kunt and V Maksimovic, ‘Financial and Legal Constraints to Growth: Does Firm Size Matter?’ (2005) 60 Journal of Finance 137.

¹³⁵ The doctrine of supremacy of Community law does not have a basis in the EC Treaty, but was developed by the ECJ. EC law is autonomous rather than derivative on the basis that Member States had voluntarily chosen to transfer their sovereignty. P Craig and G De Burca, EU Law: Text, Cases and Materials (3rd edn, OUP, Oxford, 2003) 275.

¹³⁶ This would include members such as China and Vietnam. Bayraktar and Wang (n 4) 21. Nachum (n 2).

¹³⁷ The principle of comparative advantage says countries A and B still stand to benefit from trading with each other even if A is better than B at making everything. If A is much more superior at making automobiles and only slightly superior at making bread, then A should still invest resources in what it does best—producing automobiles—and export the product to B. B should still invest in what it does best—making bread—and export that product to A, even if it is not as efficient as A. Both would still benefit from the trade. A country does not have to be best at anything to gain from trade. That is comparative advantage. The theory dates back to classical economist David Ricardo. It is one of the most misunderstood among non-economists because it is confused with absolute advantage. WTO, Understanding the WTO-Basics, The Case for Open Trade ‘Comparative Advantage’, available online at <http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact3_e.htm> (last visited 31 May 2007).

¹³⁸ From various interviews conducted with a number of East and South East Asian financial regulators during the period of December 2006 and February 2007. Financial Services Agency of Japan, Competition Policy in the Financial Sector of Asia (April 2007) (in Japanese).

¹³⁹ ‘Too big to fail’ occurs when a financial institution holds a significant share of a certain market segment in the financial system. When it becomes insolvent, and the public authority decides to bail it out due to systemic concern, the financial institution is deemed ‘too big to fail’ by the market.

¹⁴⁰ WTO, Communication from the United States: Financial Services (18 December 2000, S/CSS/W/27, Council for Trade in Services, Special Session); Communication from the European Communities and Their Member States: GATS 2000: Financial Services (22 December 2000, S/CSS/W/39, Council for Trade in Services, Special Session); WTO, Communication from Canada: Initial Negotiating Proposal on Financial Services (14 March 2001, S/CSS/W/50, Council for Trade in Services, Special Session); WTO, Communication from Australia: Negotiating Proposal for Financial Services (28 March 2001, S/CSS/W/66, Council for Trade in Services, Special Session); and WTO, Communication from Switzerland: GATS 2000: Financial Services (4 May 2001, S/CSS/W/71, Council for Trade in Services, Special Session).

¹⁴¹ Topics that are subject to discussion in the Doha round are explored in Francisco J Parodi and A Pereira, ‘Financial Services Trade Liberalization in the Doha Round: Implications for Latin America’ (2005) 22 IADB Integration & Trade 161–79.