El secretista tratado de libre comercio TTIP entre USA y la UE parecía imbatible como Caballo de Troya de las multinacionales. Pero en realidad es casi una cortina de humo para tapar la verdadera alianza neoliberal planetaria: el Trade in Services Agreement (TiSA), un acuerdo todavía más antidemocrático de intercambio de servicios entre medio centenar de países, incluida España, que no sólo se está negociando en el más absoluto de los secretos sino que se pretende que siga clasificado, oculto al conocimiento público, durante otros cinco años cuando ya haya entrado en vigor y esté condicionando el 68,2 % del comercio mundial de servicios.
El nivel de encubrimiento con el que se elaboran los artículos y anexos del TiSA –que cubren todos los campos, desde telecomunicaciones y comercio electrónico hasta servicios financieros, seguros y transportes– es incluso superior al del Trans-Pacific Partnership Agreement (TPPA) entre Washington y sus socios asiáticos, para el que se prevén cuatro años de vigencia en la clandestinidad. Sin embargo, Público ha accedido –gracias a su colaboración con Wikileaks–, en exclusiva para España, a los documentos originales reservados de la negociación en curso, donde queda patente que se está construyendo un complejo entramado de normas y reglas diseñadas para evadir las regulaciones estatales y burlar los controles parlamentarios sobre el mercado global.
Los asociados periodísticos de Wikileaks que participan junto a Público en esta exclusiva mundial son: The Age (Australia), Süddeutsche Zeitung (Alemania), Kathimerini (Grecia), Kjarninn (Islandia), L'Espresso (Italia), La Jornada (México), Punto24 (Turquía), OWINFS (Estados Unidos) y Brecha (Uruguay).
Además, el TiSA es impulsado por los mismos gobiernos (USA y los de la UE) que impusieron el fallido modelo financiero desregulado de la Organización Mundial de Comercio (OMC) y que provocaron la crisis financiera global de 2007-2008 (el crash del casino bursátil mundial simbolizado por el hundimiento de Lehman Brothers) que arrastró a las economías occidentales y todavía estamos pagando tras casi un decenio de austeridad empobrecedora, recortes sociales y rescates bancarios. Y lo que precisamente trata de imponer este nuevo pacto neoliberal mundial es la continuidad e intensificación de ese sistema, en beneficio desorbitado de las grandes compañías privadas transnacionales y atando las manos de gobiernos e instituciones públicas.
Esos objetivos son evidentes en la intención de mantener el tratado secreto durante años, puesto que así se impide que los gobiernos que lo ejecutan tengan que rendir cuentas ante sus parlamentos y ciudadanos. También es patente la intención fraudulenta de esa negociación clandestina por su descarada violación de la Convención de Viena sobre la Ley de Tratados, que requiere trabajos preparatorios y debates previos entre expertos y académicos, agencias no gubernamentales, partidos políticos y otros actores… algo a todo punto imposible cuando la elaboración de un acuerdo se efectúa en estricto secreto y a escondidas de la luz pública.
Por el momento, los gobiernos implicados en la negociación secreta del TiSA son: Australia, Canada, Chile, Colombia, Corea del Sur, Costa Rica, Estados Unidos de América, Hong Kong, Islandia, Israel, Japón, Liechtenstein, México, Nueva Zelanda, Noruega, Pakistán, Panamá, Paraguay, Perú, Suiza, Taiwán, Turquía, Uruguay y la Comisión Europea, en representación de los 28 países miembros de la UE, pese a ser un organismo no electo por sufragio universal. Además, entre los socios hay 3 paraísos fiscales declarados, que participan activamente en la elaboración de los artículos, especialmente Suiza.
Los textos de la negociación secreta del TiSA que ahora desvela Wikileaks muestran que lo que se pretende es eliminar todos los controles y obstáculos para la liberalización global de los servicios financieros, suprimiendo todo límite a sus instituciones y cualquier restricción a sus productos innovadores, a pesar de que fueron precisamente esos inventos financieros, como los derivados o los CDS (credit default swaps) –auténticas apuestas sobre posibles quiebras–, los que generaron la burbuja bursátil mundial que al estallar en 2007-2008 destruyó los fundamentos económicos de las potencias occidentales y obligó al rescate de esas entidades con cientos de miles de millones en fondos públicos.
Hace un año, Wikileaks ya filtró una pequeña parte de la negociación del TiSA (el anexo referido a Servicios Financieros, a fecha 19 de junio de 2014), pero hasta hoy no se había tenido acceso a las actas de las negociaciones secretas sobre todos los aspectos que cubrirá el futuro acuerdo: Finanzas (lo acordado a 23 de febrero de 2015), Telecomunicaciones, Comercio Electrónico, Transporte Aéreo y Marítimo, Distribución y Envíos, Servicios Profesionales, Transparencia, Movimientos de Personas Físicas, Regulaciones Nacionales Internas, Servicios Postales Universales…
Público ha tenido incluso acceso a las notas internas sobre las negociaciones con Israel y Turquía para que se adhiriesen al tratado secreto, algo que en cambio se negó a China y Uruguay cuando lo solicitaron, probablemente temiendo que filtrarían los contenidos del pacto en cuanto comprendieran el alcance de lo que se pretende.
Es revelador el listado de las naciones latinoamericanas que participan en el TiSA, todas ellas fieles aliadas de USA como Colombia, México y Panamá (paraíso fiscal que es muy activo en la negociación), así como la exclusión no sólo de los países bolivarianos sino incluso de Brasil y otras potencias regionales de las que Washington no se fía. En realidad, todas las potencias emergentes del llamado BRICS (Brasil, Rusia, India, China y Suráfrica) han quedado apartadas del tratado secreto, precisamente porque serán las que más pierdan al aplicarse las condiciones pactadas.
No cabe duda de que se busca impedir el debate que reclamaron muchos países, sobre todo Ecuador, tras el crash financiero sobre las razones que lo provocaron y las soluciones para que no vuelva a producirse. USA, Canadá, Australia, Suiza y la UE se opusieron frontalmente incluso a las conclusiones de la Comisión Stiglitz de la ONU, en 2009, negándose a aceptar la evidente relación entre la desregulación bancaria/bursátil y la crisis, y en 2013 bloquearon todo intento de discutirlo en el seno de la OMC.
Entre lo más sarcástico del contenido del TiSA que ahora sale a la luz está la exigencia de transparencia total a las autoridades nacionales, que deberán anunciar de antemano y abrir a discusión previa todas las regulaciones y normativas que se dispongan a aplicar, asegurando así que las grandes corporaciones y los lobbies comerciales internacionales tengan tiempo y recursos para contrarrestar, modificar o incluso impedir esas decisiones soberanas en función de sus intereses.
Una imposición a los estamentos públicos que exigen los que no sólo pactan en secreto su propio modus operandi, sino que incluso pretenden que sus acuerdos ya en vigor permanezcan durante años como top secret, negando a los órganos de la soberanía popular hasta el conocimiento de las reglas que van a aplicar los gobiernos de cada país en sus relaciones internacionales.
En cambio, los acuerdos del TiSA –que se negocian al margen del Acuerdo General de Comercio en Servicios (GATS) y de la OMC– toman en cuenta todas y cada una de las exigencias de la industria financiera de Wall Street y la City londinense, así como los intereses de las grandes corporaciones multinacionales, para las que el tratado no sólo no es secreto sino su propio engendro. Como alertó hace meses la catedrática de Derecho de la Universidad de Auckland (Nueva Zelanda), Jane Kelsey, "el mayor peligro es que el TiSA impedirá a los gobiernos fortalecer las reglas del sector financiero".
Diseñado en estrecha consulta con ese sector financiero mundial, el TiSA obligará a los gobiernos firmantes a apuntalar y ampliar la desregulación y liberalización bursátil causantes de la crisis; les quitará el derecho de mantener y controlar los datos financieros dentro de sus territorios; los forzará a aceptar derivados crediticios tóxicos; y los atará de manos si tratan de adoptar medidas para impedir o responder a otra recesión inducida por el neoliberalismo. Y todo ello será impuesto por unos acuerdos secretos, sin que la opinión pública se pueda enterar de los verdaderos motivos que arrastran su sociedad a la ruina.
A menos que los órganos de la soberanía popular impidan este golpe de Estado económico mundial.
Without prejudice
Limited distribution – for TiSA participants only
23 JANUARY 2015
Article I-[ ]: Transparency
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general
application respecting any matter covered by this Agreement are promptly published or otherwise made
available in such a manner as to enable interested persons and Parties to become acquainted with them.
[CH propose: Each Party shall publish promptly and, except in emergency situations, at the latest by the
time of their entry into force, all relevant measures of general application which pertain to or affect the
operation of this Agreement. International agreements pertaining to or affecting trade in services to
which a Party is a signatory shall also be published.]
2. [US/AU/CA/CL/CO/TW/JP/KR/NO/CR/MX/PE/NZ propose; CH/HK/IL/TR oppose: To the extent possible
[AU/MX propose: and in a manner consistent with its domestic law and legal system] each Party shall],
[CH/EU/HK/IL/TR/PA/IS propose: Each Party may]:
a. publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
b. [TR oppose: provide [NZ propose: where appropriate,] interested persons and other Parties a
reasonable opportunity to comment on such proposed measure.]
FOOTNOTE [NZ propose: A Party may, consistent with its domestic legal system, comply with its
obligations relating to proposed regulations in this Article by publishing a policy proposal,
discussion document, summary of regulation or other such document that contains sufficient
detail to adequately inform interested persons and other Parties about whether and how their
trade interests might be affected.]
ALTERNATIVE FOOTNOTE LANGUAGE FOR CONSIDERATION
A party may, consistent with its domestic legal system, comply with its obligations in this Article relating
to publication of measures referred to in paragraph 1 that it proposes to adopt, by publishing
information (for example in a policy proposal, discussion document, summary of regulation or
other such document) that contains sufficient detail to adequately inform interested persons and
other Parties about whether and how their trade interests might be significantly affected.
3. With respect to proposed regulations of general application [EU/HK/CL oppose: of its central level of government] respecting any matter covered by this Agreement that are published in accordance with paragraph 2(a), each Party:
a. Shall publish the proposed regulation in a [CO/EU/IL/CR oppose: single] official publication [EU oppose: of national circulation] or an official website [US propose: preferably consolidated into a single portal];
This is subject to additional input from delegates on whether to specify that publication or website
should be at “no cost”
b. [EU opposes entire paragraph: TR considering opposing:] should to the extent possible publish
the proposed regulation [CH/CR/CO/JP/HK/IL/KR/MX/PA oppose: not less than 60 days] before
super-secretive Trans-Pacific Partnership Agreement (TPPA)! It also
contradicts the hard-won transparency at the WTO, which has
published documents relating to negotiations online for a number of
years.
1
Secrecy during the negotiation of a binding and enforceable
commercial treaty is objectionable and undemocratic, and invites
poorly informed and biased decisions. Secrecy after the fact is
patently designed to prevent the governments from being held
accountable by their legislatures and citizens.
The suppression of background documents (travaux preparatoires)
also creates legal problems. The Vienna Convention on the Law of
Treaties recognises they are an essential tool for interpreting legal
texts. Non-disclosure makes it impossible for policy-makers,
regulators, non-government supervisory agencies, opposition
political parties, financial services firms, academics and other
commentators to understand the intended meaning or apply the
text with confidence.
2.
The states driving TISA were responsible for the WTO’s
pro-industry finance rules
The participants in the TISA negotiations are Australia, Canada,
Chile, Chinese Taipei (Taiwan), Colombia, Costa Rica, Hong Kong
China, Iceland, Israel, Japan, Liechtenstein, Mexico, New Zealand,
Norway, Pakistan, Panama, Paraguay, Peru, South Korea,
Switzerland, Turkey, the USA and the European Union, including its
28 member states.
The leaked text shows the US and EU, which pushed financial
services liberalisation in the WTO, are the most active in the
financial services negotiations on TISA. The third most active
participant is the renowned tax haven of Panama.
To understand the implications of the TISA proposals on financial
services it is necessary to understand the comparable WTO texts.
What is commonly called the Financial Services Agreement is a
composite of texts:
i.
the General Agreement on Trade in Services (GATS) sets the
framework for rules that govern services transactions between
a consumer of one country and a supplier of another;
2
ii.
the Annex on Financial Services applies to all WTO Members;
3
iii.
schedules of commitments specify which financial services
each country has committed to the key rules in (i) and (ii), and
any limitations on those commitments;
4
and
iv.
a voluntary Understanding on Commitments in Financial
Services
5
sets more extensive rules and has an ambivalent
legal status in the WTO.
6
2
2
Financial services are defined by a broad and non-exclusive list,
which ranges from life and non-life insurance, reinsurance,
retrocession, banking, trading derivatives and foreign exchange to
funds management, credit ratings, financial advice and data
processing (
see Art X.2
).
The rules apply to measures that ‘affect’ the supply of financial
services through foreign direct investment (commercial
establishment) or offshore provision by remote delivery or services
purchased in another country (cross-border). They also aim to
‘discipline’ governments in favour of a light handed and
self-regulatory model of financial regulation.
The substantive rules target what the financial services industry
sees as obstacles to its seamless global operations, including:
•
limits on the size of financial institutions (too big to fail);
•
restrictions on activities (eg deposit taking banks that also trade
on their own account);
•
requiring foreign investment through subsidiaries (regulated by
the host) rather than branches (regulated from their parent
state);
•
requiring that financial data is held onshore;
•
limits on funds transfers for cross-border transactions (e-finance);
•
authorisation of cross-border providers;
•
state monopolies on pension funds or disaster insurance;
•
disclosure requirements on offshore operations in tax havens;
•
certain transactions must be conducted through public
exchanges, rather than invisible over-the counter operations;
•
approval for sale of ‘innovative’ (potentially toxic) financial
products;
•
regulation of credit rating agencies or financial advisers;
•
controls on hot money inflows and outflows of capital;
•
requirements that a majority of directors are locally domiciled;
•
authorisation and regulation of hedge funds; etc.
3. States promoting TISA blocked critical debates in the WTO
post-GFC
This combination of liberalisation of financial markets and
light-handed, risk-tolerant financial regulation enabled the excesses
of the powerful US and European finance industry and the growth of
the shadow banking system. Various WTO Members called for a
review of the rules after the financial crisis. For example, the WTO
Ambassador from Barbados tabled a paper in the Committee on
Financial Services in March 2011 that said:
3
3
the crisis has served to highlight flaws in the global regulatory
and compliance environment which hamper the
implementation of corrective measures and in some cases
make them open to challenge. Unless it is assumed that such
problems will never again recur, they point to a need to review
some aspects of the global rules including WTO GATS rules
within which countries operate, so as to permit remedial
measures to be implemented without running the risk of
having them viewed as contraventions of commitments.
7
Subsequent attempts led by Ecuador to secure a debate in the
Committee were eviscerated to the point that the eventual
discussion in April 2013 was meaningless.
8
Similar concerns were expressed outside the WTO. The commission
established by the President of the UN General Assembly in 2009 to
review the financial crisis (the Stiglitz Commission) wrote in its
interim report that trade-related liberalisation of financial services
had been advanced under the rubric of these agreements ‘with
inappropriate regard for its consequences on orderly financial flows,
exchange rate management, macroeconomic stability, dollarization,
and the prudential regulation of domestic financial systems’.
9
Their
final report called for the agreements to be critically reviewed.
The major players at the WTO, led by the US, Canada, Australia,
Switzerland and the EU, consistently refused to accept there is any
relationship between the WTO’s financial services rules and the
GFC. Instead, they have continued to negotiate bilateral free trade
and investment treaties that lock governments more deeply into
that regime and extend their obligations even further.
In many cases, the major powers have presented these demands to
countries from the global South as part of a non-negotiable FTA
template. Poor countries that carefully limited their exposure on
financial services at the WTO have often become bound to a more
extreme version of those rules and obligations through the FTAs.
4. Strategic role of TISA in WTO and FTAs
The US insisted that the negotiation of the Financial Services
Agreement during the Uruguay round of the GATT continue for
several years after the round had finished, until it was satisfied with
the commitments that were made. The final package was estimated
to cover 95 per cent of international
trade in banking, securities,
insurance, and information services as measured in revenue.
10
Moves began in 2000 to expand those commitments further, as
provided for in the GATS. Those talks were incorporated into the
Doha round of WTO negotiations in 2001. The round stalled in the
mid-2000s. Moves to advance the services negotiations through
plurilateral negotiations failed.
4
4
The governments that were pushing these talks moved outside the
formal WTO boundaries to pursue TISA. They call themselves the
‘Really Good Friends of Services’. Their goal is to make TISA the new
platform for financial services. The US has said it wants to establish
new negotiating rules in TISA, get enough countries to sign on that
will enable it to be incorporated into the WTO, and then have the
same rules adopted for negotiations at the WTO.
11
The European
Commission has said TISA will use the same concepts as the GATS
so that it can ‘be easily brought into the remits of the GATS.’
12
It is not clear how that might happen. Either two thirds or three
quarters of the Members would need to agree to TISA coming under
the WTO’s umbrella, even as a plurilateral agreement.
13
Countries
like Brazil and India have been very critical of TISA, and the US has
not allowed China to join. But the pressure on WTO Members will be
immense. If the plan did succeed, many South governments that
resisted the worst demands of the GATS and the services aspects of
the Doha round will find they end up with something more severe.
If TISA remains outside the WTO its coverage will be limited to the
signatories. That is dangerous itself. The countries that were at the
centre of global finance and were responsible for the GFC will be
bound to maintain the rules that allowed that to happen. The
minimal reforms they have adopted post-GFC will become the
maximum permitted regulation. Several recent IMF papers have
referred to the ‘state of denial’ among affluent economies about the
potential for further devastating crises if they maintain the current
policy and regulatory regime.
14
They also point out that many
developing countries that took prudent steps after their experience
with the Asian Financial Crisis and similar traumas are much less
exposed.
15
Yet the architects of TISA aim to force those countries to
adopt the flawed rules they had no role in negotiating, either as the
new ‘best practice’ for FTAs or through the WTO.
5. Finance industry has captured global rule making
The development of global finance rules under the guise of ‘trade’
was the brainchild of senior executives of AIG, American Express,
Citicorp and Merrill Lynch in the late 1970s. Their role, and
subsequently a broader lobby called the Financial Leaders Group, is
well documented. The former director of the WTO’s services division
himself acknowledged in 1997 that:
‘Without the enormous pressure
generated by the American financial services sector, particularly
companies like American Express and Citicorp, there would have
been no services agreement’.
16
As the lobby evolved it was still led from Wall Street, but expanded
to include the major insurance and banking institutions, investment
5
5
banks and auxiliary financial services providers, from funds
managers to credit-rating agencies and even the news agency
Reuters. They were later joined by the e-finance and electronic
payments industry, which includes credit, stored value and loyalty
cards, ATM management, and payment systems operators like
PayPal.
The industry lobbyists have also set the demands for financial
services in TISA. The
Chairman of the Board of the US Coalition of
Service Industries
is the
Vice Chairman of the Institutional Clients
Group at Citi. When the
industry’s demands, as expressed in the
consultation on TISA conducted by the US Trade Representative in
2013, are matched against the leaked text it becomes clear that
they stand to get most of what they asked for. Extracts from their
submissions are listed at the end of this document.
6. Examples of the Dangers of TISA
A number of the provisions in the leaked text are already in the
GATS financial services instruments, especially the voluntary
Understanding. However, Colombia, Costa Rica, Pakistan, Panama
and Peru, which are participating in TISA, appear not to have
adopted the Understanding.
The new elements of TISA build on the GATS-plus rules in Korea-US
Free Trade Agreement, and those proposed in the Trans-Pacific
Partnership Agreement (TPPA) and the Trans-Atlantic Trade and
Investment Partnership (TTIP). The TISA parties that are not yet
bound by such agreements would therefore face especially onerous
new obligations.
The following selection of provisions shows some of what is new
and/or dangerous about TISA. They are only a sample of the legal
issues.
Binding countries to the flawed GATS model (Art X.3 and
X.4)
The biggest danger is that TISA will stop governments tightening the
rules on the financial sector. As noted above, this risk is greatest for
countries that have not already adopted the WTO’s Understanding
on financial services, do not already have extensive financial
services commitments with the US or EU under a FTA, or both. But it
is a serious risk for all TISA parties, especially those with weak
systems of financial regulation.
6
6
When the GATS was first developed governments were given some
control over the extent to which the regulation of services was
subject to the core GATS rules. Those core rules cover the right of
foreign financial firms’ to set up and operate in the host country; the
cross-border supply of the broad range of financial services and
products; the ability of their nationals to purchase of those services
and products in another country; and the kind of domestic
regulations they could adopt.
There are different ways of allowing governments to exercise control
over such commitments.
The GATS gave governments flexibility to list the services that would
be subject to the core rules, and further limit their exposure in those
sectors (a ‘
positive list’
approach).
The voluntary Understanding worked on a ‘
negative list’
that
required governments to specify what was not covered by its
additional rules. This approach is increasingly common in FTAs,
especially those with the US.
Under negative lists governments to bind the hands of their
successors, even in the face of unforeseen new challenges. There
are also high risks of error. Proposals to adopt negative lists have
been resisted in the GATS, including in the Doha round.
It is not clear exactly how the schedules will work for financial
services in TISA without access to the rest of the text. It is believed
that TISA proposes a
‘
hybrid’
of positive and negative lists. The rules
may guarantee foreign firms’ access to a country’s services market
using the positive list approach; that would allow a government to
specify which services and sectors will be covered by the market
access rules.
However, the requirement of non-discrimination, where a foreign
service supplier must be treated no less favourably than domestic
competitors, would follow a negative list approach. Governments
would have to state what services, activities or laws are
not
subject
to that rule; special restrictions on foreign services, products or
measures would only be permitted where they were explicitly listed.
This would apply even in sectors that were not opened in the market
access (positive) list.
A
standstill
would also apply: governments would have to bind their
existing levels of liberalisation and not introduce new restrictions in
the future.
There are also suggestions of a
ratchet.
When a government
reduces restrictions on foreign financial firms, services or products,
7
7
those changes would automatically be locked in.
Finally, it has been suggested that there may be no provision to add
new reservations to the schedules; there is such a provision in the
GATS, although it is extremely difficult to use.
The leaked financial services text seems to follow this path.
Access to a country’s financial market
The US has made specific proposals for the scheduling of
commitments on financial services.
Under
Art X.3.1
parties must list their commitments to allow
foreign financial service suppliers from TISA countries to establish a
presence in their country.
Their commitments to allow the supply of financial services across
the border would apply only to a truncated list of financial services
in
Art X.8
. These mainly relate to insurance and a range of auxiliary
services, plus electronic payments and portfolio management
services; they do not include mainstream services involving banking
and trading of financial products.
Those commitments would be made in accordance with Art I-3 of
the main TISA text, which is presumably based on a positive list.
Hong Kong China wants to make it clear that parties can put
limitations on the extent to which they are committing a particular
financial service, as permitted in the GATS. This proposal implies
that the US does not want to allow governments to impose any
limitations on a sector they agree will be covered by those rules.
Without the rest of the agreement it is unclear what rules would
apply if the US proposal were not adopted. Presumably Art 1-3 of
TISA would apply to financial services just like all other services.
Not discriminating against foreign firms
The US proposal for
Art X.3.2
involves commitments not to
discriminate against financial services from other TISA countries,
known as national treatment. This paragraph only applies to
financial services that are supplied across the border. Those
commitments are again limited to the services listed in
Art X.8
.
There is a cross-reference to Art II-2 of the main TISA text, which has
not been leaked.
On its face, it looks like this provision restricts national treatment of
8
8
financial services to those cross-border services, unless a TISA
country says it also applies to foreign direct investment
(establishing a commercial presence). But that is impossible to
verify.
It seems likely that the commitments for national treatment use a
negative list, but again that is impossible to verify.
Standstill
So far, this analysis suggests that TISA parties can decide what
financial services to commit to these rules, but the US wants to limit
the extent to which they can pick and choose within those sectors.
The crucial provision is
Art X.4,
which
would apply a
standstill
to a
country’s existing financial measures that are inconsistent with the
rules. That means governments must bind their existing levels of
liberalization for foreign direct investment on financial services,
cross-border provision of financial services and transfers of
personnel. The current rules will be the
most
restrictive of financial
services that a government would be allowed to use. They would be
encouraged to bind in new liberalization beyond their status quo.
Australia wants to keep more flexibility, with the standstill to apply
from the date TISA comes into force. That would allow governments
to adopt new regulations before that date, thereby securing
themselves more regulatory space than they have now. It also
expressly allows for the rollover of such measures.
It is not apparent from the leaked text whether a ratchet applies to
lock in any new liberalisation of financial services.
Art X.7
(commercial presence) and
Art
X.8
(cross-border trade)
show the EU and US are taking a hard line by saying that these
scheduling arrangements define a country’s commitments on a
financial service or sector. Australia wants the broader ability to list
conditions and qualifications on the services listed in the schedule
(similar to what Hong Kong China proposed in Art X.3.1).
The implications are huge.
The aim is to secure much more
extensive levels of commitments than exist in the GATS, or were
promised in the Doha round, or even exist in most FTAs.
It would
also commit governments to maintain the current failed system of
financial regulation. A TISA party could be sued if it sought to
tighten financial rules that were put in place during the last three
decades, which were marked by reckless or ill-considered
liberalisation or deregulation.
In the realm of financial services, this
is high risk indeed.
9
9
Expedited Availability of Insurance (Art. X.21)
Article X.21 requires regulatory procedures to be designed to
expedite the ability of licensed insurers to offer insurance services
across borders and in country. Examples of expedition include a time
limit for disapproving an insurance product, after which the product
must be allowed; exempting various kinds of insurance from
requiring product approval; and allowing unlimited new products.
The GFC illustrates the implications. Credit default swaps (CDS)
were one of the innovative products at the core of the crisis. Swaps
operate as a form of insurance:
the buyer of the swap accepts the
risk that a borrower might default and pays up if they do, in return
for receiving income payments. An estimated 80 percent were
‘naked’ CDSs, where the investor taking the insurance does not
even own the asset being insured
17
– they were basically betting on
whether insured assets owned by someone else would fail. Around
$60 trillion was tied up in CDSs in 2008.
18
AIG, a key instigator of the
financial services rules, held $440 billion exposure to CDSs when the
bubble burst, and was bailed out by US taxpayers.
Art X.21
is a license for similar disasters. As the GFC showed,
governments can be slow and reluctant to regulate financial
products, especially if they are complex and the insurer or the entire
industry is pressuring them. The transparency provisions, described
below, add to their leverage. Often regulators will only discover the
dangers of an insurance product when it is too late. There is growing
pressure to shift from regulating in ways that welcome and tolerate
risk-taking to regulation that judges financial services providers and
products on their merits. This provision would help to shield
insurance products from that trend.
Data processing and transfer (Art X.11)
The entire services lobby wants to stop governments from requiring
data to be processed and stored locally. The firms that dominate
cloud-based technology are mostly US-based. US firms also
dominate the information and communications technology sector in
general. The right to hold data offshore is especially important for
the finance industry because finance
is
data. The US insurance and
credit card industries have been especially vocal in their opposition
to ‘localisation’ requirements.
Art X.11
has two proposals. One is from the EU and Panama and is
couched in negative terms: a party shall not prevent such transfers.
The state’s right to protect personal data, personal privacy and
confidentiality is limited by an obligation not to use that right to
circumvent the provisions of TISA. This is a catch-22: the
government cannot adopt any privacy etc measures if they arguably
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breach any provisions of TISA. But they could have taken such
measures anyway!
The US proposal is much more direct. It wants a blanket right for a
financial services supplier from a TISA party to transfer information
in electronic or other form in and out of the territory of another TISA
party for data processing where that is an ordinary part of their
business. It is hard to think of a form of financial service where data
processing is not part of the business. This obligation is stated in a
positive, unfettered form. There is no pretence of any right for the
state to protect personal privacy and data.
At first sight that protection might be found in
Art X.18
, as
proposed by the US and EU. But the provision is negatively worded:
nothing shall be construed to require a Party to disclose information
regarding the affairs and accounts of individual consumers. That
means TISA does not affect states’ ability to require disclosure of
information, presumably to the government, about individuals. It is
not concerned with protecting personal privacy or preventing those
who hold the personal data from abusing it for commercial or
political purposes.
When data is held offshore it becomes almost impossible for states
to control data usage and impose legal liability. Protecting data from
abuse by states has become especially sensitive since the Snowden
revelations about US use of domestic laws or practices to access
personal data across the world.
Effective and transparent regulation (Art 16)
Again there are two proposals, one from the EU and Trinidad, and a
more extensive version from the US. Both require prior consultation
on proposed new regulation ‘to the extent practicable’ with ‘all
interested persons’ or, for the US more explicitly ‘interested persons
and [state] parties’.
In addition to ensuring they have a reasonable opportunity to
comment, the US says the final decision should, to the extent
practicable, address in writing the substantive comments from
interested persons on the proposed regulations. Equally, where an
application from a financial service supplier to supply a financial
service has been declined, they should be informed of the reasons.
This may sound pretty reasonable until it is put in context. Recall
how capture of the regulatory, supervisory, and other public
oversight agencies by the finance industry contributed to the GFC.
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The risk-based model of financial regulation and the Basel II
standards for prudential regulation of banks allowed the industry
itself to become the front line regulators.
Fuente: http://www.publico.es
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