Die
Gazette Nr. 12, März 1999:
MFI, das wiederauferstandene MAI
Das MAI, dessen Ableben etwas verfrüht gefeiert wurde, ist - wie von Der Gazette vorhergesagt - unter dem neuen Namen „Multilateral Framework on Investment" wieder auferstanden.
Für ein Meeting in der dritten Dezemberwoche 1998 hat das Direcorate
General 1 der Europäischen Kommission ein Diskussionspapier vorbereitet,
das ins Internet gelangte. Zwei Dinge sind daran interessant:
1. Die Passagen, in denen die kaum veränderten Kernpunkte des
alten MAI-Vertragsentwurfs wiederholt werden, und
2. die Passagen, die in einer für ein Treffen mit NGOs am 27.
Januar 1999 hergestellten Kurzfassung des Papiers weggelassen wurden.
Es wird nicht überraschen, daß es speziell die bisherigen
MAI-Kernpunkte sind, die in der den NGOs vorgelegten Fassung fehlen. Aber
auch andere konkrete Angaben, Zeitpunkte und Thesen sind ad usum delphini
weggelassen. Man läßt sich also auch weiterhin, trotz aller
gegenteiligen Beschwörungen, nicht in die Karten schauen.
Hier der ungekürzte Wortlaut des Papiers (die in der Fassung für
die NGOs fehlenden Passagen sind rot hervorgehoben):
EUROPEAN COMMISSION DIRECTORATE GENERAL I
EXTERNAL RELATIONS: COMMERCIAL POLICY AND RELATIONS WITH NORTH AMERICA, THE FAR EAST, AUSTRALIA AND NEW ZEALAND
WTO, OECD, commercial questions with respect to agriculture and fisheries; export credit policy; and export promotion
Multilateral commercial policies and WTO and OECD questions
Brussels
I.G.1/(98)
Note for the attention of the 113 Committee
113 COMMITTEE
M.D.642/98
Source: Commission
For: discussion
Date received:15.12.98
SUBJECT: WTO New Round: Trade and Investment
Discussion Paper
Origin: I/M/2
Objective: pour information and discussion
EUROPEAN COMMISSION DIRECTORATE GENERAL I
EXTERNAL RELATIONS: COMMERCIAL POLICY AND RELATIONS WITH NORTH AMERICA, THE FAR EAST, AUSTRALIA AND NEW ZEALAND
Directorate M - Services, investment, TRIMS, dual-use goods, standards and certification, external relations in the research, science, nuclear energy and environment fields
Investment, TRIMS, Dual-Use Goods, Standards and Certification
Brussels, 15 December 1998
I-M-2/
2. FDI activity is rapidly increasing as a key motor for international economic integration. If WTO Members can create a consensus on the right framework of rules for this phenomenon, this will bring benefits of two kinds. First, it will provide a framework within which all interested parties, including public opinion, can participate in the regulation of FDI as a legitimate and desirable activity. Secondly, greater legal certainty for FDI will mean lower risk for investors and higher levels of activity worldwide, with greater and more stable economic growth than may otherwise be the case.
3. The European Business community has made clear its position in favour of multilateral rules on investment both through its representative bodies (UNICE, ERT) and through informal direct contacts with investment decision-makers. A decision to invest abroad, and the subsequent decision to locate the investment in a particular host country, is obviously taken on the basis of economic and market factors. The legal climate in the host country, however, has a strong influence on the perception of risk associated with an investment abroad. Thus, a favorable legal climate may not have a direct impact on any given individual investment decision, but does have a strong influence on the overall willingness of a firm to invest abroad and on the resources it feels able to devote to FDI. The resulting impact on the overall investment performance of firms, and therefore on global investment flows, should be obvious.
5. Rule-making for investment on the multilateral scale, however, is still embryonic. Investment protection is covered by some 1600 bilateral Treaties, while market opening rules on the admission of investment are confined to regional initiatives (EC Treaty, MERCOSUR, NAFTA). WTO rules cover some forms of investment ("commercial presence" for service suppliers under the GATS) or address issues highly relevant to investment (e.g. TRIMs and subsidies) but do not address for instance, investment protection. If concluded, the Supplementary Treaty to the Energy Charter Treaty would provide an example of a fairly ambitious sectoral international agreement covering most aspects of investment.
7. Many host countries have unilaterally liberalised their domestic investment regimes, having realised that this is the best avenue to attract much needed investment. Thus, circumstances appear ripe for a multilateral framework of rules that could consolidate this favorable climate, and do so in a balanced manner, which could ensure greater stability of investment flows, in the interest of investors and host countries alike.
8. The elements of an ideal result that at the same time opens markets to new investments and then protects those that are made would include:
10. However, a worthwhile agreement must maintain a high degree of ambition. It is worth recalling, in this respect, that as far as investment flows are concerned, all countries have an inherent self-interest to adhere to rules. In fact, while liberalization measures as regards trade in goods and services could have a short term negative impact on the balance of payments and on employment in the receiving country, liberalization and protection of investment, by generating inflows of funds, has a positive effect on the host country's BoP and employment in the short term as well as in the longer period. In addition, rules on investment would add benefits such as transparency and thereby provide the possibility to fight corruption and tax evasion, particularly in developing countries. The win-win result of an agreement on investment should therefore be adequately underlined.
11. Thus, much speaks for setting out a broad opening position of the Community. Tactical considerations, in relation to the need to maintain our room for manoeuvre in the course of the negotiations will obviously also have to be factored in when setting out this position.
13. Secondly, the Community will have to answer more specific questions on "what is in it for us" which many developing countries raise about investment rules. This cannot stop short at pointing out the benefit of investment for development, but will have to underline and sustain the point that rule making increases confidence of investors and stable investment flows. In this respect, the current financial crisis should indeed be an additional argument in favor of investment rules. The enhanced predictability provided by clear rules could contribute to promote investment, particularly in those countries that are likely to suffer from strongly reduced FDI inflows and considerable outflows as a result of the financial crisis.
14. Thirdly, scepticism in some quarters (notably the US) as to whether the WTO can arrive at "high quality" investment rules must be defused. On the one hand, there is "quality" in having a realistically ambitious set of multilateral investment rules that apply throughout WTO membership. On the other hand, according to the Business sector's experience, the Community should continue to pursue an improvement of investment protection in the WTO forum, including with regard to developed countries.
16. A broad definition of investment is a common feature of most bilateral protection Treaties, but the issue is less clear when it comes to liberalising investment flows. One option could be to work with a broad definition for protection and a narrower one for admission. Another option could be to limit WTO rules to a narrow, enterprise-based definition, thereby excluding many difficult issues related, for instance, to intangible assets and possibly to portfolio investment too.
17. Classical investment protection rules (on transfers, National Treatment, fair and equitable treatment, expropriations and compensation, protection from strife, national security exceptions) have been accepted by almost all WTO Members in Bilateral Investment Treaties. A WTO investment agreement should revolve around these elements and provide, at a minimum, the benefit of more uniform rules than the numerous bilateral and/or regional Treaties that are out there now.
18. On enforcement mechanisms, State-to-State dispute settlement is part of the WTO "acquis" and would, of course, apply to investment disputes too. In the investment field, however, there is the additional and distinct issue of the means available for foreign investors to enforce their rights in specific cases where they want to make a claim against the host country, typically for damages arising from a specific government action or decision. In Bilateral Investment Treaties (BITs), it is common for host states to give "unconditional consent" to investors' resort to established independent arbitration bodies. In the WTO context, this sort of provisions specifying enforcement procedures outside WTO is only found very rarely and then only in very general terms (e.g. in the enforcement Articles - Part III - of the TRIPs Agreement). A BIT-type arbitration would be an enforcement mechanism that could also be written into a WTO Agreement on investment without being linked to the DSU. The exact nature of any arbitration mechanism would also have to reassure those WTO Members (mainly developing countries) who are afraid of being "taken to court" by big multinational companies.
19. On the issue of provisions on admission of investment, much will depend on the approach chosen to develop it. A GATS-style, bottom-up scheduling approach of positive liberalisation commitments, or a top-down National Treatment pre- establishment obligation with specific exceptions (similar to the approach taken in the draft MAI) are the best known options. In this connection, many developing countries have voiced considerable uneasiness with a top-down approach. They see opening provisions on investment linked to a loss of sovereignty and a loss of their flexibility to channel investment into certain sectors or regions. Although the kind of "educational work" being done in the WTO Working Group on Trade and Investment (WGTI) can take away some of these fears, these are unlikely to disappear altogether. A bottom-up approach would have the advantage that developing countries are already acquainted with it from the GATS. Thus, a possible way forward would be to envisage a bottom-up approach for commitments on the admission of investment. This could go a long way to reassure those developing countries who have strong feelings in this respect.
20. A number of other issues will lead to extensive discussions: i.a. TRIMs-like performance requirements rules1 the movement of key personnel, possible rules on monopolies or privatisation, rule-making on investment incentives to curb the most damaging forms of competition for investment. How many of these issues are tackled, as well as how and where in the WTO system (e.g. TRIMs, GATS, etc.), will determine to a large extent the value of a final deal.
21. It is clear that the question of environmental or social elements in a WTO investment agreement will also arise. Not only this is likely to be controversial vis-à-vis some developing countries but we will also have to strike a very delicate balance between conflicting objectives of different constituencies within the EU.
24. At the end of the process leading to the 1999 Ministerial, the recommendations to be presented by the General Council should be in direction of a rather general negotiating mandate on investment.
25. Coalition building
2. See Commission Communication COM(95) 42, "A Level Playing Field
for Direct Investment World-wide".
