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2.3.4 The Relationships of “Trade and Investment”
Since 1996 there have been working-committees within the WTO who have
been debating the issues pertaining to “trade and investment.” 103 The objective of
these committees is to elaborate and pass a multilateral framework agreement,
which should establish rules on investment in all its facets for all WTO member
states. The aims of the so-called Doha Agenda for the area of “trade and investment”
range from identifying the comprehensive scope of application and definition
of the term investment, of transparency, of non-discrimination, of the MFN and NT
clauses, of rules for “pre-establishment” on the basis of GATS-definitions, to positive-sector
lists, concessions on development-issues, as well as defined exceptions
and predetermined safeguard clauses for balance of payment crises, as well as a
dispute-settlement mechanism. 104
In November 2001 the 4th Ministerial Conference of the WTO in Doha, Qatar,
decided that negotiations on a
“multilateral framework to secure transparent, stable and predictable conditions
for long-term cross-border investment, particularly foreign direct investment”
(§20 Ministerial Declaration, 14.11.2001, Doha 105 )
should only be initiated on the basis of a consensual decision on the modalities
of negotiations which were to be treated at the 5th Ministerial Conference in Cancún
from September 10-14, 2003:
“[W]e agree that negotiations will take place after the Fifth Session of the
Ministerial Conference on the basis of a decision to be taken, by explicit consensus,
at that session on modalities of negotiation.” (ibid.).
First the “modalities of negotiations” were to be defined “by explicit consensus”
and after Cancún the negotiations could have started.
According to the chairman of the Ministerial Conference the formulation “by explicit
consensus” left a wide margin not only to debate “how” to negotiate, but also
to pose the general question if negotiations should take place at all. Nevertheless,
the Ministerial Declaration defined the establishment and desired conclusion of the
negotiations as having already been determined, since the deadline for the conclusion
of the negotiation round on investment had already been set by them to be:
103 http://www.wto.org/english/tratop_e/invest_e/invest_e.htm.
104 http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm#relationship.
105 http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm.