(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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112 5.1 Foreign direct investment in bilateral investment treaties, regional free trade agreements and WTO agreements and its interaction with sectoral and horizontal topics under the rules of global free trade The answer to the question, why the existing, already widely market-compliant liberalized rules of national legislation and international treaties are still not sufficient, can be found in the interaction of foreign direct investment with • bilateral investment agreements, • regional free trade agreements and • the WTO with different complementary “sectoral” 319 bodies of rules and regulations concerning • services and • goods as well as the “horizontal” 320 topics of • investment and • the demands regarding the proposed internationally binding criteria for government procurement. The bilateral investment agreements, with their comprehensive investors’ rights, complement the vested rights of investors already determined by the WTO and/or FTAs. If a country grants certain concessions in the framework of a BIT, then according to the MFN clause, all other BITs of this country have to contain the same “best” conditions: A chain reaction, which as a results creates a multilateral investment agreement (MIA) through the backdoor: therefore, for example, the deputados of the Brazilian Congress should think twice and check if the consequences of ratifying a BIT really produce desired developments. The attempt to implement the consequent commercialization of public goods and services at an international cross-border level is tried through all kinds of thinkable measures: The regulations of international treaties are irreversible once the agreements are ratified, so that broad market access, “non-discrimination”, “national treatment”, international arbitration courts and the determination of companies as subject of international law with rights and duties as well as binding rules for public 319 http://europa.eu.int/comm/trade/issues/sectoral/index_en.htm. 320 Ibid.
procurement and the restriction of national mechanisms of control and influence remain as an entire body of regulations at the disposition of corporations, capital and commerce. Foreign investors have to be granted the same rights as national ones, according to the rules of the MFN and NT clauses, and additionally foreign investors and market participants dispose of more rights as the domestic investors due to possibilities to take legal action at international arbitration courts. Furthermore, in international legal disputes international trade and investment legislation over rules national law: “However, today’s globalization mainly rests on internationally accorded and nationally ratified rules on the liberalization of financial markets, investment and the trade of goods. Hardly one day passes, without international negotiations on further agreements. Therefore, state authority in terms of design and control occurs through international regulation and national implementation.” 321 Any form of national or regional performance requirements such as: • minimum quotas of local employees, • special consideration of local producers and suppliers in the chain of production or in public procurement processes, • requirements for technology transfers, • preferential treatment for domestic suppliers regarding subsidies or awarding of contracts, • tax incentives for domestic suppliers, which do not apply in the same way for foreign and domestic suppliers, thereby are considered as discriminatory market distortion by bilateral, regional or multilateral investment agreements, and would therefore be prohibited: national, regional or local potential for decision making in the area of implementing measures to promote development by the state is thereby complicated or completely impeded. The commercialization of public expenditure is to be subjected as well to the regime of international trade: One of the most profitable market segments on a global level is the area of public procurement, which accounts for around 15 percent of international trade. 322 321 Own translation of the following orignial text: “Allerdings beruht [...] unsere heutige Globalisierung wesentlich auf international vereinbarten und national ratifizierten Regeln über die Liberalisierung von Finanzmärkten, Investitionen und dem Güterhandel. Es vergeht kaum ein Tag, an dem auf internationaler Ebene nicht über weitere Übereinkommen verhandelt wird. Staatsgewalt im Sinne von Gestaltung und Ordnung durch internationale Regelung und nationale Umsetzung findet daher statt.” Taken from: Stoll, Peter-Tobias: Globalisierung und Legitimation, Göttingen, May 19, 2003, p. 4, http://www.cege.wiso.uni-goettingen.de/Veranstaltungen/antrittsvorlstoll.pdf. 322 http://europa.eu.int/comm/trade/issues/sectoral/gov_proc/index_en.htm. 113
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Christian Russau Enforcement of int
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Preface Since the end of 1999 the C
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If the “Interregional Association
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8 Chapter 5: The enforcement of int
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10 1.1 Negotiations of the “Inter
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12 A similar agreement of the so-ca
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14 tute in the eyes of many countri
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16 amaraty, where the FTAA-negotiat
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18 free trade agreement between the
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20 at the UN Millenium Summit to ha
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22 on the possibility of a unilater
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24 tual contradictions between the
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26 fired. The workers union OGB-L,
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28 policy and EU development policy
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Chapter 2: Foreign direct investmen
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50% in 2002 as compared to the prev
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The reasons for propagating this co
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• according to a study conducted
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promotion of domestic demand, in or
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2.2 International Agreements and Tr
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2.3 The World Trade Organization WT
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• trade and investment • compet
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2.3.3 The GATS agreement The Genera
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which works on a profit-basis, sees
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“deadline: by 1 January 2005”.
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“discrimination” or “expropri
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Stockholm Chamber of Commerce (SCC)
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58 3.1 European foreign investment
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60 zations and liberalization in La
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(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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