o gats e os serviÇos financeiros: dilemas e incertezas comércio de serviços, regulamentação...

O GATS E OS SERVIÇOS FINANCEIROS:

DILEMAS E INCERTEZASComércio de Serviços, Regulamentação

Financeira e Controle de Capitais

Cons. George de Oliveira Marques Divisão de Negociações de Serviços

SERVICES SECTORAL CLASSIFICATION LIST (W120)

1.BUSINESS SERVICES2.COMMUNICATION SERVICES3.CONSTRUCTION AND RELATED ENGINEERING SERVICES 4.DISTRIBUTION SERVICES 5.EDUCATIONAL SERVICES 6.ENVIRONMENTAL SERVICES 7.FINANCIAL SERVICES8.HEALTH RELATED AND SOCIAL SERVICES 9.TOURISM AND TRAVEL RELATED SERVICES10.RECREATIONAL, CULTURAL AND SPORTING SERVICES11.TRANSPORT SERVICES12.OTHER SERVICES NOT INCLUDED ELSEWHERE

Comércio de Serviços: quais setores?

CPC Provisório (ONU)

Section: 8 - Business services; agricultural, mining and manufacturing servicesDivision: 81 - Financial intermediation services and auxiliary services thereforThis Division is divided into the following Groups:•811 - Financial intermediation services, except insurance and pension fund services•812 - Insurance (including reinsurance) and pension fund services, except compulsory social security services•813 - Services auxiliary to financial intermediation other than to insurance and pension funding•814 - Services auxiliary to insurance and pension funding

Serviços Financeiros – o que e quais são?

https://unstats.un.org/unsd/cr/registry/regcs.asp?Cl=9&Lg=1&Co=8






CPC 1.1

HierarchySection: 7 - Financial and related services; real estate services; and rental and leasing servicesBreakdown:This Section is divided into the following Divisions:71 - Financial intermediation, insurance and auxiliary services72 - Real estate services73 - Leasing or rental services without operator





CPC 1.1 (ONU)

Division: 71 - Financial and related servicesBreakdown: This Division is divided into the following Groups:•711 - Financial services, except investment banking, insurance services and pension services•712 - Investment banking services•713 - Insurance and pension services (excluding reinsurance services), except compulsory social security services•714 - Reinsurance services•715 - Services auxiliary to financial services other than to insurance and pensions•716 - Services auxiliary to insurance and pensions•717 - Services of holding financial assets









CPC 1.1 (ONU)

Section: 7 - Financial and related services; real estate services; and rental and leasing servicesDivision: 71 - Financial and related servicesGroup: 711 - Financial services, except investment banking, insurance services and pension servicesBreakdown:This Group is divided into the following Classes:•7111 - Central banking services•7112 - Deposit services•7113 - Credit-granting services•7114 - Financial leasing services•7119 - Other financial services, except investment banking, insurance services and pension services









Section: 7 - Financial and related services; real estate services; and rental and leasing servicesDivision: 71 - Financial and related servicesGroup: 711 - Financial services, except investment banking, insurance services and pension servicesClass: 7112 - Deposit servicesBreakdown: This Class is divided into the following Subclasses:•71121 - Deposit services to corporate and institutional depositors•71122 - Deposit services to other depositorsExplanatory note

This class includes:- demand, notice and term deposit services provided to depositors- administration of bank accounts- chequing services:

· certification of cheques· exchanging cheques or withdrawal slips for money· remitting cheques forwarded for collection

- transferring money between accounts- providing documents to clients





Serviços Financeiros – o que e quais são?HierarchySection: 7 - Financial and related services; real estate services; and rental and leasing servicesDivision: 71 - Financial and related servicesGroup: 711 - Financial services, except investment banking, insurance services and pension servicesClass: 7112 - Deposit servicesSubclass: 71122 - Deposit services to other depositorsExplanatory note

This subclass includes:- provision of services listed in class 7112 to depositors, other than corporate and institutional depositors

This subclass does not include:- wrapping, rolling or otherwise handling currency and coin on behalf of customers cf. 85400- collection services of drafts, cheques and other bills of exchange received on a collection basis cashed or taken on deposit cf. 85920- collection services of accounts or monies receivable under assignment of accounts or contracts, cf. 85920

Part I: Scope and DefinitionArticle I: Scope and Definition

3. For the purposes of this Agreement:

(b) “services” includes any service in any sector except services supplied in the exercise of governmental authorityservices supplied in the exercise of governmental authority; (c) “a service supplied in the exercise of governmental authority” means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.

O que está fora do GATS?

HierarchySection: 7 - Financial and related services; real estate services; and rental and leasing servicesDivision: 71 - Financial and related servicesGroup: 711 - Financial services, except investment banking, insurance services and pension servicesClass: 7111 - Central banking servicesSubclass: 71110 - Central banking servicesExplanatory noteThis subclass includes:- services which support the country's systems for clearing and settling payments and other financial transactions- services of maintaining deposit accounts for major financial institutions and for the central government- services of implementing monetary policy- services of managing the government's foreign exchange reserves- services of influencing the value of currencyservices of influencing the value of currency- currency services under the authority of the central bank, including currency design and production, issuing, distribution and replacement- fiscal agency services including advisory services to the government on matters relating to the public debt, issuing debt instruments, maintaining bondholder records and making interest and redemption payments on behalf of the government- supervisory activities with regard to banks and/or non-banks if undertaken by the central bank- other central banking services n.e.c.

Atividades de Banco Central – fora do GATS

Aspectos gerais e específicos: GATS - Não há definição do que são serviços Anexo de Serviços Financeiros – Há definição de serviços financeiros por sua

natureza operacional e caráter do prestador.

GATS - Define comércio de serviços (modos de prestação)Anexo de Serviços Financeiros – Utiliza definição do GATS

GATS - Compreende potencialmente todo o universo de serviçosAnexo de Serviços Financeiros – Possui uma lista ilustrativa.

GATS - Disciplina medidas adotadas pelos Membros que afetem o comércio de serviços

Anexo de Serviços Financeiros – Disciplina medidas adotadas pelos Membros que afetem apenas o comércio de serviços financeiros.

Acordo Geral sobre o Comércio de Serviços (GATS)


1. Scope and Definition

(a) This Annex applies to measures affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in paragraph 2 of Article I of the Agreement. (b) For the purposes of subparagraph 3(b) of Article I of the Agreement, “services supplied in the exercise of governmental authority” means the following: (i) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies; (ii) activities forming part of a statutory system of social security or public retirement plans; and (iii) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.


5. Definitions

For the purposes of this Annex:

(a) A financial service is any service of a financial nature offered by a financial service supplier of a Member. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:

Insurance and insurance-related services

(i) Direct insurance (including co-insurance): (A) life (B) non-life (ii) Reinsurance and retrocession; (iii) Insurance intermediation, such as brokerage and agency; (iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.


Banking and other financial services (excluding insurance)

(v) Acceptance of deposits and other repayable funds from the public; (vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction; (vii) Financial leasing; (viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts; (ix) Guarantees and commitments; (x) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

(A) money market instruments (including cheques, bills, certificates of deposits); (B) foreign exchange; (C) derivative products including, but not limited to, futures and options; (D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements; (E) transferable securities; (F) other negotiable instruments and financial assets, including bullion.


(b) A financial service supplier means any natural or juridical person of a Member wishing to supply or supplying financial services but the term “financial service supplier” does not include a public entity. (c) “Public entity” means:

(i) a government, a central bank or a monetary authority, of a Member, or an entity owned or controlled by a Member, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or (ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.

Principais implicações para comércio de serviços financeiros:

1. Modos de prestação

2. Obrigação de Nação Mais Favorecida (NMF)

3. Compromissos de acesso a mercados

4. Compromissos de tratamento nacional

5. Regulamentação Doméstica

6. Obrigações relativas a pagamentos e transferências


Artigo I.2For the purposes of this Agreement, trade in services is defined as the supply of a service:(a) from the territory of one Member into the territory of any other Member;

(b) in the territory of one Member to the service consumer of any other Member; (c) by a service supplier of one Member, through commercial presence in the territory of any

other Member;

Nota de Rodapé do Art. XVI: If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2(a) of Article I and if the cross-border if the cross-border movement of capital is an movement of capital is an essential partessential part of the service itself, that Member is thereby committed to allow of the service itself, that Member is thereby committed to allow such movement of capitalsuch movement of capital. If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2(c) of Article I, it is thereby it is thereby committed to allow related transfers of capital committed to allow related transfers of capital intointo its territory. its territory.

1) Modos de prestação

Em que medida os compromissos implicam obrigação de livre fluxo de capitais?

(i) Distinção entre Modos 1 e 2:

- Critério de territorialidade ou de deslocamento do consumidor (ii) Vinculação de compromissos com permissão para transferência de capital

- Obrigações distintas para Modos 1 e 3?

- Quando uma transferência é essencial ou relacionada ao serviço prestado?

1) Modos de prestação

Obrigação incondicional:

- Membros devem conceder imediatamente e incondicionalmente aos serviços e prestadores de serviços de qualquer outro Membro, tratamento não menos favorável do aquele concedido a serviços e prestadores de serviços similares de qualquer outro país.

2) Obrigação de Nação Mais Favorecida (NMF)

Tratamento discriminatório:• Acordos para evitar bitributação• Prevenção contra práticas fraudulentas• Assegurar efetiva arrecadação de impostos• Segurança (saúde, segurança nuclear, situações de emergência, conflito armado)

• Acordos de integração econômica.

- Medidas prudenciais podem ser discriminatórias?

2) Obrigação de Nação Mais Favorecida (NMF)

(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;

(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;

(d) limitations on the total number of natural persons that may be employed in a particular service sector or

that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;

(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and

(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.

3) Compromissos de acesso a mercados (Artigo XVI.2)

3) Compromissos de acesso a mercados (Lista de compromissos do Brasil)

1. In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

2. A Member may meet the requirement of paragraph 1 by according to services and service suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competitionthe conditions of competition in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member.

4) Compromissos de tratamento nacional (Art. XVII)

• Controles de capitais são inerentemente discriminatórios?

• As condições de concorrência entre prestadores financeiros nacionais e estrangeiros são afetadas igualmente?

Nota de rodapé: 10. Specific commitments assumed under this Article shall not be construed to require any Member to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.

4) Compromissos de tratamento nacional (Art. XVII)

1. In sectors where specific commitments are undertaken, each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.

2. (a) Each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Member shall ensure that the procedures in fact provide for an objective and impartial review.(b) The provisions of subparagraph (a) shall not be construed to require a Member to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.

5) Regulamentação Doméstica (Art. VI)

1. Quais medidas financeiras seriam consideradas de aplicação geral sobre o comércio de serviços? Como avaliar que tais medidas sejam razoáveis, objetivas e imparciais.

2. Tópicos ainda a serem disciplinados em regulamentação doméstica:

• Normas técnicas;• Requisitos de licenciamento;• Procedimentos de licenciamento;• Requisitos de qualificação (apenas Modo 4?);


4. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary unnecessary barriers to trade in servicesbarriers to trade in services, the Council for Trade in Services shall, through appropriate bodies it may establish, develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements are, inter alia:(a) based on objective and transparent criteria, such as competence and the ability to supply the service; (b) not more burdensome than necessary to ensure the quality of the servicenot more burdensome than necessary to ensure the quality of the service; (c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.


5. (a) In sectors in which a Member has undertaken specific commitments, pending the entry into force of disciplines developed in these sectors pursuant to paragraph 4, the Member shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments in a manner which:(i) does not comply with the criteria outlined in subparagraphs 4(a), (b) or (c); and (ii) could not reasonably have been expected of that Member at the time the specific commitments in those sectors were made. (b) In determining whether a Member is in conformity with the obligation under paragraph 5(a), account shall be taken of international standards of relevant international organizations applied by that Member.


ANEXO SOBRE SERVIÇOS FINANCEIROS

2. Domestic Regulation

(a) Notwithstanding any other provisions any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member’s commitments or obligations under the Agreement. (b) Nothing in the Agreement shall be construed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.


Controle de fluxos de capital pode ser considerado uma medida prudencial?

1. Precisa cumprir um dos cinco objetivos do Art. 5(a) do Anexo de Serviços Financeiros

(i) Proteção de investidores;(ii) Proteção de correntistas;(iii) Proteção de acionistas;(iv) Proteção de credores; ou(v) Garantir a integridade e estabilidade do sistema financeiro.

Questão: Até onde um controle de capitais garante a estabilidade do sistema financeiro?


Controle de fluxos de capital pode ser considerado uma medida prudencial?

2. Restrições ao movimento de capitais não podem servir de meios para não cumprir compromissos e obrigações do Membro sob o GATS (“such measures shall not be used as a means of avoiding the Member’s commitments or obligations under the Agreement”).

Questão análoga ao Artigo XIV (Exceções Gerais) do GATS:

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:(a) necessary to protect public morals or to maintain public order;


Controle de fluxos de capital é compatível com obrigações de pagamentos e transferências?

1. Except under the circumstances envisaged in Article XII, a Member shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.

2. Nothing in this Agreement shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Member shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article XII or at the request of the Fund.

6) Pagamentos e transferências (Art. XI)

IMF - Articles of the Agreement

Article VI: Capital Transfers

Section 3. Controls of capital transfersMembers may exercise such controls as are necessary to regulate international capital movements, but no member may exercise these controls in a manner which will restrict payments for current transactions or which will unduly delay transfers of funds in settlement of commitments, except as provided in Article VII, Section 3(b) and in Article XIV, Section 2.

Article VIII: General Obligations of Members

Section 2. Avoidance of restrictions on current payments

(a) Subject to the provisions of Article VII, Section 3(b) and Article XIV, Section 2, no member shall, without the approval of the Fund, impose restrictions on the making of payments and transfers for current international transactions.


O que diz o departamento legal do FMI?

25. Obligations of Members. Unlike the provisions of the Articles that provide the basis of the Fund’s bilateral surveillance, the Articles do not identify any specific substantive obligations of members in connection with the Fund’s mandate to oversee the international monetary system (i.e., obligations that require members to adjust their policies). However, in terms of a member’s procedural obligations, the Fund may require members to consult with the Fund in those circumstances where the Fund concludes that such consultations are necessary in order for it to effectively discharge its oversight responsibilities. Relatedly, the Fund could require information to be provided to it for this purpose pursuant to Article VIII, Section 5, which — as noted earlier — provides that members must provide the Fund with such information as the Fund deems necessary for its activities. Under this provision, the Fund may, by Executive Board decision, require members (either all members or individual members) to provide information that it needs for multilateral surveillance.

IMF. The Fund’s Mandate — The Legal Framework.

http://www.imf.org/external/np/pp/eng/2010/022210.pdf


JURISPRUDÊNCIA DA OMC

DS56 Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and other Items

69. Implicit in the above statement is the Panel's belief that Argentina had not successfully shownthat it was required under an agreement with the IMF to impose the statistical tax.60 Indeed, the Paneldoes not appear to have been convinced that Argentina had a legally binding agreement with the IMFat all. From the panel record in this case, it does not appear possible to determine the precise legalnature of this Memorandum on Economic Policy, nor the extent to which commitments undertakenby Argentina in this Memorandum constitute legally binding obligations. We note that page 7 of theMemorandum on Economic Policy refers to "a temporary 3 percent surcharge on imports", whichis not necessarily the same thing as the 3 per cent statistical tax levied on imports. Argentina did notshow an irreconcilable conflict between the provisions of its "Memorandum of Understanding" withthe IMF and the provisions of Article VIII of the GATT 1994. We thus agree with the Panel's implicitfinding that Argentina failed to demonstrate that it had a legally binding commitment to the IMF thatwould somehow supersede Argentina's obligations under Article VIII of the GATT 1994.


JURISPRUDÊNCIA DA OMC

DS56 Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and other Items

72. The Agreement Between the IMF and the WTO, however, does not modify, add to or diminishthe rights and obligations of Members under the WTO Agreement, nor does it modify individual States'commitments to the IMF. It does not provide any substantive rules concerning the resolution of possibleconflicts between obligations of a Member under theWTO Agreement and obligations under the Articlesof Agreement of the IMF or any agreement with the IMF. However, paragraph 10 of the AgreementBetween the IMF and the WTO contains a direction to the staff of the IMF and the WTO Secretariatto consult on "issues of possible inconsistency between measures under discussion".


1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Member may adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or including on payments or transfers for transactions related to such commitmentstransfers for transactions related to such commitments. It is recognized that particular pressures on the balance of payments of a Member in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves the maintenance of a level of financial reserves adequateadequate for the implementation of its for the implementation of its programme of economic development or economic transitionprogramme of economic development or economic transition.

2. The restrictions referred to in paragraph 1:

(a) shall not discriminate among Members;

(b) shall be consistent with the Articles of Agreement of the International Monetary Fund shall be consistent with the Articles of Agreement of the International Monetary Fund;

(c) shall avoid unnecessary damageunnecessary damage to the commercial, economic and financial interests of any other Member;

(d) shall not exceed those necessarynecessary to deal with the circumstances described in paragraph 1;

(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.

3. In determining the incidence of such restrictions, Members may give priority to the supply of services which are more essential to their economic or development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.

6) Balanço de Pagamentos (Art. XII)

5. (a) Members applying the provisions of this Article shall consult promptly with the Committee on Balance-of-Payments Restrictions on restrictions adopted under this Article.

(b) The Ministerial Conference shall establish procedures for periodic consultations with the objective of enabling such recommendations to be made to the Member concerned as it may deem appropriate.

(c) Such consultations shall assess the balance-of-payment situation of the Member concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia, such factors as:

(i) the nature and extent of the balance-of-payments and the external financial difficulties;

(ii) the external economic and trading environment of the consulting Member;

(iii) alternative corrective measures which may be availablealternative corrective measures which may be available.

(d) The consultations shall address the compliance of any restrictions with paragraph 2, in particular the progressive phaseout of restrictions in accordance with paragraph 2(e).

(e) In such consultations, all findings of statistical and other facts presented by the International Monetary Fund relating to foreign exchange, monetary reserves and balance of payments, shall be acceptedaccepted and conclusions shall be basedbased on the assessment by the Fund of the balance-of-payments and the external financial situation of the consulting Member.

6) Balanço de Pagamentos (Art. XII)

6) Medidas prudenciais e controles de capital – Estratégias complementares?

6) Questões para reflexão: O que pode ser aprimorado?

• Acordos Preferenciais: Enfoque de lista positiva (sem cláusula de “ratchet”)

• OMC: Esclarecer o alcance do “prudential carve-out” e/ou negociar entendimento sobre aplicação de controles de capitais. • Acordos de Investimentos: Evitar cláusulas de arbitragem investidor-Estado.

• Definições e regras diferenciadas para tipos de investimento.

• Novo arranjo multilateral?

Lista Negativa – Cláusula de Ratchet

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O GATS E OS SERVIÇOS FINANCEIROS

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