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

More documents

Recommendations

Info

116 5.2 The case of Chile: Foreign investment regulation in the association treaty EU – Chile and its interaction with BITs and WTO rules A very good example for this is the “Association Agreement” of the EU with Chile, which was signed in November 2002 and entered into force in February 2003, 326 and which in its corporation-friendly orientation is amended by a series of earlier bilateral investment treaties between the European states and Chile: 327 • The mutual market access for foreign corporations which operate in the services sector, the non-services sector and the financial services area is safeguarded by the FTA, which in its notion of services follows the four GATS definitions (Mode 1 “cross-border supply”, Mode 2 “consumption abroad”, Mode 3 “commercial presence” and Mode 4 “presence of natural persons”) and whose scope is defined by a positive-list. • The regulation to “protect” investment against “discrimination and expropriations” for “post-establishment” investment in services and financial services is covered by both FTA and bilateral agreements, the non-services area is regulated exclusively by bilateral investment agreements. • The principle of non-discrimination of NT is safeguarded twofold for all three areas (by FTA and bilateral agreements). • The MFN principle is applied by the bilateral agreements. • Capital and profit transfers are also safeguarded twofold through BITs and FTA for all three areas. • The possibility for investor-to-state disputes (post-establishment) has been assured by investors and corporations through the BITs. • The possibilities for trade-related disputes between states are regulated by the BITs. • The regulation concerning services and public procurement is realized by the FTA. • And additionally, in foreign trade-related issues the rules of “non-discrimination” of the WTO apply. 326 The English version of the agreement can be found, e.g., at: http://www.handel-entwicklung-menschenrechte.org/ fileadmin/christian/Chile-EU-AssociationAgreement.pdf. 327 See: Republic of Chile: Investment and Transparency Provisions in Chile’s FTAs with the E.U. and U.S.A. Presentation before the OECD Committee on International Investment and Multinational Enterprises on April 10, 2003.
Through this kind of crossing and mutually amending treaties of BITs, FTAs and WTO everything is subjected to the free play of the market. An extension of investors rights without obligations or conditions goes hand in hand with a restriction and elimination of national margins of action with respect to regional development programs or conditions for investors, certain performance requirements like a minimum quotas on national employees or conditions to promote regional development like the preferential treatment of local suppliers, all of which is prohibited by the joint-play of BITs, FTA and WTO. It is unclear which democratic margins of actions will be retained by governments apart from leaving everything to the market criteria of price and efficiency, without room for national, regional or local decision-making. Environmental, social and human rights are at least mentioned in the FTAs of the EU, but only in so far that the verbal commitment to human rights and the rule of law appears in the introductory clause, without specifying any concrete measures to condition and supervise the compliance with these principles. Investors’ rights are clearly the focus of these treaties, investors’ obligations are not mentioned. EU trade commissioner Pascal Lamy has characterized the EU-Chile agreement as “a XXI century model of trade relations. The ambitious and innovative provisions are expected to deliver considerable economic and commercial benefits” 328 , especially in the area of services and investment it goes much further than the existing WTO-commitments. 329 It can be agreed with the judgement of Klaus Schilder from the NGO WEED regarding the FTAs of the EU, who states that: “The EU its striving to anchor broad concessions to international investors in the treaty (as, e.g., legal guarantees to protect foreign investors, a MFN clause, protection against expropriation and nationalization, free transfer of profits as well as an international dispute settlement mechanism). The European Parliament has already spoken out in 1999 for the adoption of a legally binding code of conduct for foreign investors in developing countries in the annex of future agreements, which would obligate investors to comply with social, human rights and environmental minimum standards. Some of the new EU trade agreements tend to grant broader protection of investment as previously accorded in other multilateral initiatives. Overall it therefore has to be feared, that beyond the WTO-framework the Multilateral Investment Agreement (MAI), 328 http://europa.eu.int/comm/external_relations/chile/assoc_agr/ip02_1696.htm. 329 Taken from: Küppers, Gaby: Es darf geschröpft werden. Das EU-Chile-Abkommen ist unter Dach und Fach, in: ila No. 260, November 2002, p. 33. 117
Page 2 and 3:
Christian Russau Enforcement of int
Page 4 and 5:
Preface Since the end of 1999 the C
Page 6 and 7:
If the “Interregional Association
Page 8 and 9:
8 Chapter 5: The enforcement of int
Page 10 and 11:
10 1.1 Negotiations of the “Inter
Page 12 and 13:
12 A similar agreement of the so-ca
Page 14 and 15:
14 tute in the eyes of many countri
Page 16 and 17:
16 amaraty, where the FTAA-negotiat
Page 18 and 19:
18 free trade agreement between the
Page 20 and 21:
20 at the UN Millenium Summit to ha
Page 22 and 23:
22 on the possibility of a unilater
Page 24 and 25:
24 tual contradictions between the
Page 26 and 27:
26 fired. The workers union OGB-L,
Page 28 and 29:
28 policy and EU development policy
Page 31 and 32:
Chapter 2: Foreign direct investmen
Page 33 and 34:
50% in 2002 as compared to the prev
Page 35 and 36:
The reasons for propagating this co
Page 37 and 38:
• according to a study conducted
Page 39 and 40:
promotion of domestic demand, in or
Page 41 and 42:
2.2 International Agreements and Tr
Page 43 and 44:
2.3 The World Trade Organization WT
Page 45 and 46:
• trade and investment • compet
Page 47 and 48:
2.3.3 The GATS agreement The Genera
Page 49 and 50:
which works on a profit-basis, sees
Page 51 and 52:
“deadline: by 1 January 2005”.
Page 53 and 54:
“discrimination” or “expropri
Page 55:
Stockholm Chamber of Commerce (SCC)
Page 58 and 59:
58 3.1 European foreign investment
Page 60 and 61:
60 zations and liberalization in La
Page 62 and 63:
62 the profitability, on the electr
Page 64 and 65:
64 America. Also the issue of human
Page 66 and 67: 66 • Thirdly the WTO Dispute Sett
Page 68 and 69: 68 to the U.S. trade power by rapid
Page 70 and 71: 70 The largest trade balance defici
Page 72 and 73: 72 OECD area by European companies.
Page 74 and 75: 74 EDF, has issued a similar compla
Page 76 and 77: 76 European automobile producers in
Page 78 and 79: 78 But not only international law o
Page 80 and 81: 80 ment,” which in the beginning
Page 82 and 83: 82 4. 1 The free trade agreement be
Page 84 and 85: 84 issues for us.” 233 On the oth
Page 86 and 87: 86 capital flows” explicitly. The
Page 88 and 89: 88 which also speaks out against th
Page 90 and 91: 90 in Congress and encouraged the B
Page 92 and 93: 92 studies in 2003 on the impact of
Page 94 and 95: 94 The MEBF successfully works as a
Page 96 and 97: 96 “We have tried to explain how
Page 98 and 99: 98 4.2 The example of Brazil: Forei
Page 100 and 101: 100 Brazilian Constitution. This wo
Page 102 and 103: 102 countries through CC-5 accounts
Page 104 and 105: 104 4.3 Brazil, foreign direct inve
Page 106 and 107: 106 “Commercial Presence: The jur
Page 108 and 109: 108 Providing cheaper access to wat
Page 110 and 111: 110
Page 112 and 113: 112 5.1 Foreign direct investment i
Page 114 and 115: 114 The agreement on government pro
Page 118 and 119: 118 which was believed to be dead,
Page 120 and 121: 120 c) The still pending Doha “De
Page 122 and 123: 122 gesamtamerikanischen Freihandel
Page 124 and 125: 124 · http://europa.eu.int/comm/co
Page 126 and 127: 126 · http://www.citizen.org/ · h
Page 128 and 129: 128 · http://www.rebrip.org.br ·
Page 130 and 131: 130 um den Markt der wiederentdeckt
Page 132 and 133: 132 · Torrent, Ramón: Acordos Int
Page 134 and 135: 134 DIHK Deutscher Industrie- und H
Page 136 and 137: 136 Lomé Lomé-Agreement between E
Page 138 and 139: About FDCL is a nonprofitorganizati
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?