Movement of Capital and Trade in Services: Distinguishing Myth from Reality Regarding the GATS and the Liberalization of the Capital Account

This article will analyze the interplay between capital movements and trade in services as structured in World Trade Organization (WTO) law, and it will assess the implications of the capital account liberalization for the freedom of WTO Members to pursue their economic policies. Although the movement of capital is largely confined to the domain of international financial or monetary policy, it is regulated by WTO law due to its role in the process of financial services liberalization, which generally requires liberalized capital flows. From a legal perspective, the interplay between capital movements and trade in services requires striking a delicate balance between the right of market access and the parallel right of economic stability. Indeed, a liberalized regime for capital movements could pose serious stability problems during times of crisis. For this reason, it is necessary that Members are able to derogate from their obligations and adopt emergency measures. Regulating the movement of capital in the General Agreement on Trade in Services (GATS) requires stretching the regulatory oversight of WTO law over different aspects of international economic policy. Indeed, capital movements are a fundamental component of the balance of payments and have a major role in shaping monetary, fiscal, and financial policies. This article will analyze how the discipline provided by the GATS on capital movements will affect not only trade in services, but also the Members' policy space on monetary and fiscal policy. The article will conclude that while the GATS offers enough policy space for the maintenance of financial stability, it does not fully take into consideration the need of Members to control capital movements in order to conduct monetary policies.