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40 and human rights: Are transnational corporations “out of control” 79 due to not only their size, which in some cases exceeds the GDP of entire countries, but also to the nonexistence or insufficient internationally valid and concrete juridical obligations in international treaties? Are they in the end better off than domestic companies, due to international treaties that regulate their rights, but not their obligations? Is national jurisdiction being hollowed out and surpassed by international treaties on investment protection? Are transnational companies problematic due to their actions, their globally-optimizing pure profit orientation and their mere size? And finally: What role can international treaties and agreements between states have that focus on foreign investment?
2.2 International Agreements and Treaties on Investment International negotiations on investment agreements can be conducted between two states (bilaterally) in form of a bilateral investment agreement (BIT), between two regional blocks (a special case of bilateralism: bi- or interregional) as part of a broader free trade agreement (FTA), among several states within the framework of a superior international organization valid for some member states (plurilateral), or among all member states (multilateral). Negotiations on investment agreements deal in general with the basic stipulations for cross-border investment. Bilateral treaties between states whose main focus lie on cross-border investment exist since the “Treaty of Amity, Commerce and Navigation”, the so-called “Jay-Treaty” which was signed in 1794 between “His Britannic Majesty and the United States of America”, ratified in 1795 and publicly proclaimed at the beginning of 1796. This treaty was the first to introduce arbitration courts (“commissions”) as a bilateral mechanism to solve disputes. 80 The first bilateral investment agreement, in the modern sense, was concluded in 1959 between Pakistan and the Federal Republic of Germany. 81 Today a large number of bilateral agreements exist (in September 2002 an estimated 2000 bilateral agreements were in force globally 82 ). Modern bilateral investment agreements are similar in content and are all oriented towards equal market access rules, reciprocal treatment according to the principles of “non-discrimination” contained in the MFN clause and the National Treatment Clause, guarantees for capital and profit transfers and arbitration mechanisms: “Modern BITs have retained broad uniformity in their provisions. In addition to determining the scope of application of the treaty, that is, the investments and investors covered by it, virtually all bilateral investment treaties cover four substantive areas: admission, treatment, expropriation and the settlement of disputes. Almost all modern BITs include provisions dealing with disputes between one of the parties and investors having the nationality of the other party. In this respect most provide for arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) which entered into force in 1966.” 83 80 For the complete text of the treaty see http://odur.let.rug.nl/~usa/D/1776-1800/foreignpolicy/jay.htm#I. 81 See: Igler, Wolfgang / Schekulin, Manfred: Von Havanna bis Doha: der lange Weg zu multilateralen Investitionsregeln, http://www.aussenwirtschaft.info/content/publikationen/AWJB_19.pdf. 82 Hochuli, Marianne: Investment agreements as one-sided enforcement of investors rights I: From Bilateral Investment Agreements to NAFTA to the Multilateral Agreement on Investment (MAI), Berne Declaration, Switzerland, October 2002. 83 http://www.worldbank.org/icsid/treaties/intro.htm. 41
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134 DIHK Deutscher Industrie- und H
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