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

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42 They thereby vary partially in their definition of the term investment: The “more narrow” definition only comprehends direct investment, while the “wider” one also contains portfolio investment. But no investment agreement makes a distinction or explicitly mentions “socially productive capital”. The term “expropriation” in most agreements follows the “wider” meaning of direct expropriation and equivalent measures. Besides these bilateral investment agreements, which explicitly focus on the area of investment, the investment issue may also be a component of broader free trade agreements, as for example the “Association Agreement” between the EU and Mexico (“Global Agreement”), which was signed in 1997 and entered into force in October 2000, as well as the agreement between Chile and the EU, which was signed in November 2002 and entered into force in February 2003. On a plurilateral or multilateral level several negotiation rounds on multilateral or international investment agreements have taken place, which were in part ratified, like the plurilateral TRIMs-agreement within the WTO, and which in part failed, like the multilateral MAI within the OECD in 1998 or the (provisional) failure of the Doha Development Agenda of the WTO (see below). Continuous demands from trade and industry for international investment regulations in the form of bilateral investment agreements or embedded into free trade agreements consistently put the investment issue onto the political agenda. Foreign investors thereby chiefly prioritize the issues of investors’ rights like investment protection and legal security, market access and national treatment, as well as free capital transfer. For this reason, it is predominantly the FDI-exporting countries which speak out for a regulatory framework on an international level. The standard formulation with only small differences in formulations reads as follows: “to secure transparent, stable and predictable conditions for long-term crossborder investment, particularly foreign direct investment”. 84 The issue of cross-border investment (along with the agricultural market, subsidies, services, intellectual property rights) is one of the central and most disputed topics in the current negotiations on bilateral and multilateral free trade agreements. The free trade negotiations in the framework of FTAA/ALCA, the large Free Trade Area of the Americas planned for 2005, and also the free trade negotiations between the EU and MERCOSUR explicitly refer to the “multilateral” framework of negotiations within the World Trade Organization (WTO). 84 Doha-Ministerial Declaration of 2001 on the relationship of “trade and investment”.
2.3 The World Trade Organization WTO Within the World Trade Organization negotiations take place on the extensive “liberalization” of markets. In 1995 the GATT (General Agreement on Tariffs and Trade) was replaced by the WTO. According to the WTO’s portrayal of itself, it sees itself as “a rules-based, member-driven organization — all decisions are made by the member governments, and the rules are the outcome of negotiations among members” 85 , “The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations” 86 . Furthermore, it is stated that: “The WTO is GATT plus a lot more. [...] GATT deals only with trade in goods. The WTO Agreements now cover services and intellectual property as well.” 87 In the multilateral negotiations of the WTO the representatives of member states negotiate as contracting parties of the WTO, - in the case of EU member states, however, this function is centrally exerted by the European Union (the EU-trade-commissioner, currently Pascal Lamy). According to article 133 of the EU-founding Maastricht-Treaty the EU-trade policy is expressedly part of EU-sovereignty. The same is valid for association treaties (article 310). According to the Amsterdam-Treaty, article 133 was modified so that by a unanimous decision the joint trade policy, which is exerted by DG Trade, can be extended to international agreements and treaties on services and intellectual property rights. 88 This means that the negotiation-authority in issues of foreign trade, like bilateral or WTO-negotiations, lies primarily within the respective EU-commissioner’s office. The decisions made within the WTO on the central issues of international trade are ultimately binding. Once a WTO-member state has accepted the respective rules, there are no further possibilities to make changes: it is a one-way street. 89 85 http://www.wto.org/english/thewto_e/thewto_e.htm. 86 http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm. 87 http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact0_e.htm. 88 http://europa.eu.int/scadplus/leg/de/cig/g4000g.htm#g6. 89 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, pp. 23. 43
Page 2 and 3: Christian Russau Enforcement of int
Page 4 and 5: Preface Since the end of 1999 the C
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120 c) The still pending Doha “De
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134 DIHK Deutscher Industrie- und H
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(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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