Research On The Investment Rules In TPP's Financial Services Field

In the context of the commercial presence increasingly becoming an important form of cross-border trade in financial services,ties between the trade in financial services and investment are getting closer and closer.The traditional international investment rules in the field of financial services have gradually become hysteretic and defective in the regulation and protection of investment in financial services.In recent years,the integration and coordination of free trade agreements and bilateral investment treaties gradually become the new trend of the investment rules in the international financial services field.As the representatives of the free trade agreements,NAFTA and KORUS-FTA take the lead in bringing the rules in investment chapter into the financial services chapter.Many bilateral investment agreements signed by the developed countries also began to introduce and improve the financial prudential terms and the financial investment dispute settlement mechanism.TPP,as the model of the high standard international free trade agreement in the twenty-first century,has made more improvement and innovation based on the previous rules in the field of financial services and investment.TPP takes a different financial services classification model from that in GATS,as financial services are divided into two categories:(1)cross-border trade in financial services;and(2)investment.Financial services provided through cross-border services,consumption abroad and movement of personnel are covered in the former category,while financial services provided in the form of commercial presence is covered in the latter category.TPP Chapter 11(Financial Services)stipulates rules about the above two categories,and this dissertation aims to research on the relevant rules of the latter category,i.e.the investment rules in financial services that are provided in the form of commercial presence.Specifically,TPP's Financial Services Chapter opens markets for the financial services providers and investors,and it also makes sure that the TPP members have the ability to fully regulate financial markets so as to ensure financial stability that contributes to sustainable growth.It adopts the “negative lists” plus “pre-establishment national treatment model” in terms of all core obligations,brings certain rules in Chapter 9(Investment)into Chapter 11(Financial Services),and provides TPP governments with broad latitude for prudential regulation as well as the financial investment dispute settlement mechanism.There is still a big gap between the financial investment rules in TPP and those in China's bilateral and regional international agreements.In view of this,this dissertation aims to research on the official text of the investment rules in TPP's financial services field,including relevant rules in Chapter 11 and some rules in Chapter 9 that are incorporated in Chapter 11.Based on the comparative study of the relevant rules under the WTO framework and other regional and bilateral trade and investment agreements,this dissertation will analyze the inheritance and development of the international investment rules in financial services field by TPP.Also,this dissertation will give some advice on the standpoint for China to cope with the high standard rules of TPP in the future international financial services trade and investment negotiation.In addition to the introduction and conclusion,this dissertation is divided into the following six parts:Part ? will introduce the relationship between financial services and investment,based on the origin and development of international investment rules in financial services field,analyze the background and the regulation model of the relevant TPP rules.Part ? focus on the core obligation rules that are related to investment in TPP's financial services chapter,including national treatment,most-favored nation treatment and market access rules.This part will analyze TPP's possible standard of “like circumstances” in the national treatment and MFN treatment based on the practices of international arbitration,the limitation of MFN treatment in the field of financial ISDS mechanism,and the high standard commitment model of “negative list ” and “pre-establishment national treatment”.Part ? will discuss the non-conforming measures as well as the financial prudential rules in TPP's financial services chapter.By clarifying the relationship between non-conforming measures and the core obligations,this part will elaborate the application scope,regulation scheme and characteristics of the non-conforming measures;secondly,this part will explain the sensitivity of financial services industry,emphasize the necessity of national supervision in this field,and analyze the scope of application,prudential reasons,application conditions of TPP's financial prudential rules as well as its connection with the capital transfer clause.Part ? studies the investment protection rules of TPP financial services,and discusses the main investment clauses that TPP brings into the financial services chapter.First,compared with the relevant rules in NAFTA and 2004 US BIT Model,this part will elaborate that TPP limits the application scope and standard of “minimum standard treatment” due to the extensive interpretation of the term by the international arbitration tribunal;secondly,this part will analyze the reason that TPP blurs the indemnity principle in the “War Risks Clause”;thirdly,combined with the case study of “indirect expropriation”,this part will discuss TPP's development in the relevant rules and indicate the potential risk of indirect expropriation for the investment in financial services under the circumstances of financial crisis.Part ? will address the investment dispute settlement mechanism in TPP's financial services field,including the State-State dispute settlement mechanism,the Investor-State dispute settlement mechanism and the special dispute settlement procedures regarding the financial prudential measures.This part will compare the first two mechanisms respectively with the WTO dispute settlement and the ISDS mechanism in the 2012 US BIT model,discuss the development of the relevant TPP rules;also,this part will elaborate the necessity and features of the special procedure regarding financial prudential measures.Part ? will discuss the inspiration of the investment rules in TPP's financial services field to China,combined with the relevant rules under China's regional and bilateral agreements,mainly focus on the applicability of TPP's high standard of rules,and provide some suggestions for China to cope with the high standard rules of TPP in the future international financial services trade and investment negotiation.