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46 2.3.2 The TRIMs agreement The TRIMs agreement (“Agreement on Trade-Related Investment Measures” 95 ) was passed during the GATT Uruguay Round in 1994 and constitutes one of the foundations of the WTO that was founded in January 1995. It recognizes certain asymmetries to the effect that some transition periods were granted, in order to put international agreements into practice. This agreement defines the treatment of investment in the goods sector and not investment in the services sector (which is regulated by GATS). The TRIMs agreement deals with “trade-related investment measures of member states,” which in a broad sense affects domestic and foreign investment. The 5 pages of the treaty do not give an exact definition of the term “trade-related investment measure,” but instead list in the annex the particular types of laws, rules and guidelines that are to be considered as relevant for trade with respect to investment. 96 The TRIMs agreement follows the WTO principle of so-called “National Treatment”, according to which every foreign investor should be granted the same conditions as domestic investors. If state regulations should demand any kind of requirements, so-called “performance requirements” or “local content rules,” from investors, for example, by passing regulations which demand a fixed percentage of local, regional or national suppliers or shareholders (so-called “joint ventures”) or by implementing minimum –percentage -requirements to employ domestic workers, this would violate the “National Treatment” principle. If according to a WTO member state another WTO member violates the rules of the agreement, legal action can be taken within the WTO. Any legal action can only be undertaken by one government against another, private investors cannot do this (see the chapter on NAFTA), nonetheless they can convince their respective government to do so. But for some industrialized countries, this agreement does not reach far enough, so that several intents were made (Multilateral Agreement on Investment, MAI, in the OECD, which failed under the pressure of the NGOs and civil society in 1998) and are being made in order to implement further reaching cross-country regulations. 95 http://www.wto.org/english/docs_e/legal_e/18-trims.pdf. 96 Also see: Nohlen, Dieter (Ed.): Lexikon Dritte Welt, 10th edition, 1998.
2.3.3 The GATS agreement The General Agreement on Trade in Services (GATS) 97 is dedicated to the area of services in its four trade-relevant facets (“Four Modes”): 1. Cross-border supply, e.g,. international phone calls, 2. Consumption abroad, e.g., tourism, 3. Commercial presence, e.g,. the opening of a bank branch, where “commercial presence” refers to the topic of “trade and investment” as a partial area of services, 4. Presence of natural persons, i.e., the cross-border supply of services by individuals. The General Agreement on Trade in Services (GATS) was integrated into the articles of incorporation of the WTO in 1995, and the GATS negotiations should be newly regulated and completed by the time the current world trade round (Doha –Development Round, DDR) reaches its conclusion in 2005. The GATS defines services in a very general manner, which therefore also includes issues, which in many countries are of public domain: Education and healthcare, postal services and telecommunications, public infrastructure, the supply of energy and water and cultural and social work. 98 The GATS regulations stipulate that the entire area of services is to be subjected to a standardized global set of rules. Thereby, the GATS adheres to the WTO nondiscrimination-guidelines of equal market access for all domestic and foreign suppliers according to the principles of “National Treatment” and “Most Favored Nation” and grants the opportunity for legal actions at the WTO arbitration court if these guidelines are infringed upon. Public procurement–processes, according to the NT principle, are no longer 97 http://www.wto.org/english/tratop_e/serv_e/serv_e.htm. 98 See: Fritz, Thomas: Die letzte Grenze. GATS: Die Dienstleistungsverhandlungen in der WTO. Sachstand, Probleme, Alternativen. Eine kritische Einführung von Thomas Fritz, Berlin: WEED, February 2003. 47
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