금융분야 통상분쟁에서 건전성 예외 조항의 의미 - GATS 금융부속서 건전성 예외 조항을 중심으로 -

Financial services were included as a service sector in GATS, but a separate Annex was created due to their special characteristics. Among the provisions of the annex, the one that has been most discussed from the negotiation stage to the present and that has the most disagreement over its meaning is the so-called Prudential Carve-Out article. The provision stipulated in Paragraph 2 of the current GATS Financial Annex was expected to strike a balance between the two potentially conflicting goals of securing the country's financial regulatory authority and financial liberalization. There was no unified interpretation of its meaning due to differences in interpretation standards. In particular, as new prudential regulations were introduced mainly by international financial organizations after the 2008 global financial crisis, differences of opinion regarding the scope of prudential exception measures stipulated in GATS grew further. Then, in 2012, Argentina invoked the article in a dispute procedure filed by Panama against Argentina, and the first and only ruling on the meaning of the article was made, thereby providing a partial answer to this discussion. In particular, the nature of the provision as an exception, the burden of proof on the party invoking it, and the need for no necessity test can be considered meaningful judgments. However, as the content and regulation method of prudential exception article are different for each bilateral trade agreement concluded after GATS, and regulations for prudential purposes are also developing in various forms, it seems necessary to determine whether they are justifiable regulations for each individual case.