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

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84 issues for us.” 233 On the other hand, the Uruguayan negotiators were at first reserved with respect to the issues of public procurement in all negotiating agendas. Public procurement does not form any part of the most recent bilateral investment treaty between Uruguay and Mexico, but at least the agreement was made to negotiate on the issues within two years after the conclusion of the treaty. With respect to the issue of investment the four MERCOSUR negotiation partners could at least agree on the preliminary desire, to give the negotiation of investment issues in the services area priority within the WTO. 234 But it is one of the primary interests of the current MERCOSUR governments to maintain and use a certain amount of space for possible national or regional designs, a topic which is of special interest for the Brazilian government, which in its electoral program of 2002 explicitly mentioned the necessity of a national scope for design and decision with respect to national and regional development. The Brazilian president Lula in his speech at the fiftieth anniversary of the Brazilian Oil company Petrobras on October 3, 2003 emphasized the importance of such national performance requirements for the issues of jobs, technology and overall development. 235 The Brazilian delegation for the WTO negotiations had traveled to Cancún – in accordance with its MERCOSUR partners – without an explicit position on the issues of investment and public procurement. But in the post-Cancún negotiation process the Brazilian delegation took the following position: With respect to the investment issue the Brazilian Lula-government, e.g., within the framework of the ALCA negotiations, vehemently argues, just as it did at the EU-MERCOSUR ministerial conference 233 Own translation of the following original text: “Não queremos perder oportunidades de comércio. Não estamos dispostos a aceitar uma fórmula que implique autolimitação na nossa perspectiva de acesso a mercados. Para nós, comércio e investimentos são os temas centrais.” Taken from: Estado de São Paulo, November 18, 2003, p. B3. Also see: Valor Econômico, November 18, 2003 “Uruguai quer focar investimentos.” 234 “Para serviços, o Mercosul continua a defender a aplicação das normas da OMC, incluída a exigência de que o investidor tenha presença comercial no país receptor do investimento. Sobre compras governamentais só se propõem regras de transparência, mas nenhum compromisso quanto à abertura para fornecedores estrangeiros. Compras, investimentos e propriedade intelectual são temas que o Mercosul pretende deixar para a OMC.” Estado de São Paulo, November 17, 2003. Own translation: “With respect to services, MERCOSUR continues to defend the aplication of WTO norms, including the demand that the investor needs to have commercial presence in the recipient country of the investment. Regarding government procurement, only transparency rules are proposed, but no determination concerning market opening for foreign suppliers. Government procurement, investment and intellectual property rights are issues which MERCOSUR wants to leave to the WTO.” 235 Íntegra do discurso de Lula na festa de 50 anos da Petrobras: “Nós não queríamos evitar que empresas estrangeiras produzissem os nossos navios ou a nossa plataforma. O que nós queríamos era que o nosso dinheiro fosse gasto dentro do Brasil, para gerar empregos para homens e mulheres brasileiros. E vamos manter a exigência mínima de 65% de conteúdo nacional nos equipamentos destinados a prospecção marítima do petróleo brasileiro.” Taken from: http://www.estadao.com.br/economia/noticias/2003/out/03/79.htm. Own translation: Full text of the speech by Lula at the fiftieth anniversary of Petrobras: “We did not want to impede that foreign companies produce our ships or our oil platform. We wanted our money to be spent within Brazil, to generate jobs for Brazilian men and women. And we will maintain the minimum requirement of 65% of national content with respect to the equipment destinated at offshore oil prospection of Brazilian oil.”
on November 12 in Brussels, that if there should be negotiations on the investment topic, these should occur on the multilateral level of the WTO. Since Cancún Brazil has been positioning itself within the Alliance of the G-20, G-22, G-X 236 , and has relatively strong negotiation partners on its side and insists on the universal guarantee of national scopes of design, development-focussed industrial and fiscal policies, the maintenance of local-content reglamentation and performance requirements. 237 The Brazilian negotiation delegation had already urged at the tenth round of the EU-MERCOSUR bi-regional negotiation committee (X. BNC) from June 23-27, 2003, that first a preliminary revision of the negotiation texts should occur and methods, negotiation modalities and general and specific definitions related to the investment issue should be treated, before the topic itself could be negotiated. 238 Regarding the investment issue the Brazilian government has agreed – in accordance with its offer to the EU – to only admit post-establishment investment guarantees, i.e., guarantees for investment which have already been realized in the country, as opposed to the so-called pre-establishment guarantees according to which foreign investors, who feel discriminated against, e.g., by changes in legislation (environmental requirements, performance requirements, local-content rules, etc.)– without having materialized an investment in the country yet - can take legal action at international courts against this “indirect” expropriation. 239 The Lula-government explicitly opposes this possibility for so-called investor-to-state disputes in all its free trade negotiations. 240 In the same way the Brazilian government advocates exceptions in the area of liberalizing capital and profit-transfers, in order to, e.g., protect national economies against abrupt capital flight or speculative attacks in times of crises. 241 However, it does not go as far, as to mention the term “regulations on 236 The Canadian Secretary of Trade Pierre Pettigrew in a lapidary manner called the G-X: “G- more or less.” See: Valor Econômico, October 16, 2003. 237 “Por considerar um tema “sensível”, o governo quer transferir para a Organização Mundial do Comércio (OMC) a discussão sobre regras para investimentos, que poderiam limitar a liberdade dos países para estabelecer medidas de política industrial com favorecimento a empresas instaladas no país. Mas os negociadores do Brasil aceitam discutir o chamado “acesso a mercados em investimentos”, garantias ao investidores estrangeiros de tratamento idêntico ao concedido para o investidor nacional, em setores a serem estabelecidos com a negociação. Essa garantia, aliás já está na Constituição brasileira.” Valor Econômico, 29.10.2003. Own translation: “The [Brazilian] government considers the discussion on investment rules to be a sensitive issue, as they [the investment rules] could restrict the countries’ liberties to establish industrial policy-measures which favor resident companies. Therefore the Brazilian government wants to transfer the issue to the WTO. But the Brazilian negotiators accept to discuss the so-called “market access for investment”, i.e., guarantees for foreign investors to receive identical treatment as the national investors, in sectors which are to be established in the negotiation process. This guarantee is by the way already in the Brazilian Constitution.” 238 For an explication of the genaral position of Brazil see: Peterson, Luke Eric: Brazil Remains Wary of International Investment Rules, in: INVEST-SD, June 1, 2003. 239 Valor Econômico, October 29, 2003. 240 Ibid. 241 Folha de São Paulo, November 2, 2003. 85
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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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Chapter 2: Foreign direct investmen
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