(EU) and the Common Market of the South (MERCOSUR)? - FDCL
(EU) and the Common Market of the South (MERCOSUR)? - FDCL
(EU) and the Common Market of the South (MERCOSUR)? - FDCL
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
52<br />
2.4 Investment “protection” in international treaties<br />
First <strong>of</strong> all, <strong>the</strong>re are many different definitions <strong>of</strong> <strong>the</strong> term foreign investment:<br />
The U.S.A., e.g., pursues a broad definition <strong>of</strong> <strong>the</strong> term, which includes foreign direct<br />
investment, portfolio investment <strong>and</strong> short-term speculative investment vehicles, in<br />
<strong>the</strong> NAFTA as well as in <strong>the</strong> FTA with Chile. The <strong>EU</strong> favors a more narrow definition,<br />
which excludes portfolio <strong>and</strong> short-term investment, also in <strong>the</strong>ir FTAs with Chile <strong>and</strong><br />
Mexico.<br />
The investment rules <strong>of</strong> a (bi-)regional FTA, in contrast to those <strong>of</strong> a bilateral<br />
investment agreement, do not have any effects on third parties, i.e., any noncontracting<br />
parties. Even though <strong>the</strong> MFN principle also applies to regional FTAs, <strong>the</strong><br />
accorded regulations do not have any validity for o<strong>the</strong>r international treaties, but are<br />
explicitly excluded from <strong>the</strong>se – o<strong>the</strong>rwise all regulations <strong>of</strong> <strong>EU</strong> treaties would automatically<br />
apply for all o<strong>the</strong>r states. In bilateral investment treaties that is not <strong>the</strong> case:<br />
If a BIT contains <strong>the</strong> MFN clause, <strong>the</strong>n all BITs signed by this state automatically<br />
receive <strong>the</strong> same “best” (i.e., “best” for investors) conditions.<br />
On a multilateral level <strong>the</strong>re were already negotiations from 1996-98 within <strong>the</strong><br />
framework <strong>of</strong> <strong>the</strong> OECD on a multilateral agreement on investment (MAI). Above all<br />
<strong>the</strong> U.S. <strong>and</strong> <strong>the</strong> <strong>EU</strong> had pushed <strong>the</strong>se negotiations within <strong>the</strong> OECD, which, however,<br />
were declared a failure in December <strong>of</strong> 1998 (due mainly to <strong>the</strong> international<br />
pressure <strong>of</strong> various NGOs who were finally able to persuade France to simply say<br />
“non”). The investment regulations already stipulated in <strong>the</strong> NAFTA had served as a<br />
model for <strong>the</strong> MAI negotiations.<br />
NAFTA is <strong>the</strong> first free trade agreement 106 which awards an international juridical<br />
status to companies, corporations <strong>and</strong> investors: Chapter 11 <strong>of</strong> <strong>the</strong> NAFTA bindingly<br />
defines this investor-to-state dispute settling mechanism. 107<br />
The <strong>of</strong>ficial guideline for states in <strong>the</strong>ir relationship with foreign investments is<br />
defined as following by <strong>the</strong> NAFTA article 1105:<br />
“Each Party shall accord to investments <strong>of</strong> investors <strong>of</strong> ano<strong>the</strong>r Party treatment<br />
in accordance with international law, including fair <strong>and</strong> equitable treatment<br />
<strong>and</strong> full protection <strong>and</strong> security.”<br />
The so-called investor-to-state dispute settlement mechanism gives companies<br />
as recognized juridical subjects <strong>the</strong> opportunity to take legal action on <strong>the</strong> basis <strong>of</strong><br />
106 Bilateral investment treaties have contained this juridical construct for several years already.<br />
107 http://www.nafta-sec-alena.org/english/nafta/chap-111.htm.