1. Losing Control: Policy Space to Prevent and Mitigate Financial Crises in Trade and Investment Agreements Kevin P. Gallagher Global Development Policy Program Department of International Relations Boston University kpg@bu.edu

2. Outline/Main points Renewed consensus on capital controls Trade and investment treaties pose significant barriers to the effective use of capital controls – US is significant outlier – Three key policy conflicts Trading partners offer numerous legitimate policy options Reforming trade treaties is in US interests

3. Capital Controls, Trade, and Investment Agreements

4. Examples of Capital Controls

5. Losing Control Source: Gallagher, Kevin P. (2010), Policy Space to Prevent and Mitigate Financial Crises in Trade and Investment Agreements. G-24 Discussion Paper, Geneva: United Nations.

6. IMF IMF Articles have no jurisdiction over the capital account and therefore nations are free to deploy controls In surveillance and country programs IMF staff have implicitly advised nations to open their capital accounts Official stance is now for the gradual and sequenced liberalization of the capital account IMF recommends safeguards under certain conditions

7. WTO-GATS Members who have not committed to liberalizing cross-border trade in financial services are free to deploy controls. Members with market access commitments must liberalize their capital accounts in order to allow for the financial services to function. Therefore restrictions on inflows or outflows are not permitted. Possible exceptions: – Prudential carve out (inflows?) – Balance of Payments exception (outflows)

9. US BITS-FTAs Broad definition of investment Minimum Standard of Treatment Restrictions on Expropriation Free Transfers No Performance requirements Investor-state Arbitration

10. US BITs-FTAs Require the free transfer of capital without delay – Do not permit restrictions on inflows or outflows of any kind (absolute standard) Provide no safeguard or balance-of-payments exceptions – Cool off compromise One year grace period Only claim lost investment

11. Violating US BITS-FTAs *EU-Chile and Canada-Chile FTAs have controlled entry clauses… Source: Gallagher, Kevin P. (2010), Losing Control: Policy Space to Prevent and Mitigate Financial Crises in Trade and Investment Agreements. UNCTAD Discussion Paper, Geneva: United Nations (forthcoming).

12. Other major capital exporters China, EU, and Canada – Controlled entry annexes – EU-Chile/Canada-Chile vs. US-Chile Japan-South Korea – Flexible balance-of-payments exceptions – OECD-South Korea/Japan-South Korea vs US- South Korea

13. Policy Issues Proven policies to prevent and mitigate financial crises are forbidden in large parts of trading system. Patchwork approach leads to discrimination/distortion. Creates incentives to circumvent controls through US Problems with overlapping regimes and jurisdictions.

14. Policy remedies Remove short-term debt obligations and portfolio investments from the list of investments covered in treaties Create controlled entry Annexes Design a balance-of-payments exception Clarify that the Essential Security exceptions cover financial crises, and that measures taken by host nations are self-judging. Resort to a State-to-State dispute resolution

15. Capital Controls and US Interests US could be found liable for prudential regulations too Stability helps US exporters and investors have more certainty Crises could lead to defaults and large losses to US assets and export markets Crises can cause contagion that spreads to other US investment and export destinations Crises can be politically destabilizing to important US political allies