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capital flows” explicitly.
The Brazilian government agrees with the European side that the investment
definition only affects FDI and not portfolio investment. On the other hand Brazil is
blocking one of the favorite issues of EU trade commissioner Pascal Lamy: public
procurement. This highly sensible issue, which aims at the obligation to publicly
tender, on an international level, every public expenditure which exceeds a certain
amount, without retaining the possibility to impose any criteria other than the price.
In this sense, e.g., the acquisition of toilet paper for public schools of a federal state
(which supposedly exceeds the annual amount of 50,000 US-dollars), would have to
be tendered internationally and would have to be awarded in a transparent manner
to the best, i.e., the least expensive supplier. 242 With this the global market competition
is reaching out to the last untouched areas. It is not hard to understand why
MERCOSUR’s negotiation side is reluctant with regards to this issue of “transparency
in government procurement”, as contrary to the EU Commission.
With respect to the services sector, which in one of its four forms is tangent to
the area of investment (foreign subsidiaries), the Brazilian side favors so-called positive
lists. This means that all services –areas, which fall under the GATS regulation
of the WTO or under the sectors to be liberalized under ALCA or EU-MERCOSUR,
have to be mentioned explicitly in a “positive list”. In this way they are irreversibly
subjected to the rules of market access, national treatment, MFN clause and trade
facilitation. All other service areas not on the list, or future service areas, would be
explicitly excluded from the opening of markets in this context, unless one of the
contract partners decided to unilaterally open up one of these sectors.
Still, these positive lists run the risk of being undermined by political pressures
from the countries of the “North”, so that more and more sectors might be subjected
to “liberalization” and market opening, with all its potential social consequences.
Fátima Mello, representative of the Brazilian NGO Fase and member of Rebrib (Rede
Brasileira pela Integração dos Povos) has pointed this out emphatically. 243
242 See: Arroyo, Alberto (UAM / ASC, México): Experiencias mejicanas con el TLCAN, in: FDCL-Tagungsgreader: Die
grosse Freihandelszone Amerika (ALCA): Herausforderungen und Alternativen, Berlin 2003.
243 “É importante assinalar que, embora exista a possibilidade dos países membros apresentarem listas de
compromissos específicos, na reforma em curso no GATS países como EUA, União Européia, Japão e Canadá
estão pressionando para que sejam inseridas novas regras que sejam válidas para todos os membros da OMC
e para todos os serviços, independentemente se os países tenham se comprometido ou não em abrir estes
serviços ao capital estrangeiro. Na prática, portanto, o suposto direito dos países de decidirem quais setores
desejam abrir pode estar prestes a cair por terra” Fátima Mello (FASE/Rebrip): SERVIÇOS PARA QUEM PRECISA?
As negociações de serviços no GATS e na ALCA, July 2002. Own translation: “It is important to point out, that
even though the possibility for member countries to present specific lists of committments exists, there is the
future danger that during the current GATS reform countries like the USA, the EU, Japan and Canada might exert
pressure in order to adopt new rules to be valid for all WTO-member countries and all services areas, indepent of
whether the countries have or have not made a committment to open up these services areas to foreign capital. In
practice, therefore, this could mean that the supposed right to decide on which sectors should be opened could
be overthrown.”