Multilateral Investment Rules Revisited

Abstract

This chapter addresses the question of whether it is possible to retain a multifaceted and multi-layered system of bilateral and regional agreements, which leads to what some have termed a ‘spaghetti-bowl’ of legal instruments, or whether it is necessary to reform that system by way of multilateral disciplines on foreign investment. Section 1 sets the scene by examining the current international regulation of foreign investment and discussing previous attempts in the WTO and under the auspices of the OECD to negotiate multilateral rules. Section 2 identifies the main lessons to be learned from deliberations of the WTO Working Group on Trade and Investment, when it was tasked with considering which issues should be included in any possible WTO-based initiative on foreign investment rules. Section 3 discusses and offers recommendations for possible future multilateral investment rules which would encompass not merely rights of investors and obligations on the part of host countries, but rather a more comprehensive ‘compact’ comprising pre- and post-establishment aspects of investment, as well as a number of supporting elements regarding the environment, good governance, labour standards and human rights, and the overall conduct of foreign investors. Section 4 offers suggestions for substantive elements and aspects of dispute settlement in addition to the Model International Investment Agreement for Sustainable Development (IIASD Agreement) draft. Finally, Section 5 suggests and concludes that given the existing regulation of foreign investment, future multilateral investment rules would not altogether replace existing investment regulation, but would rather clarify it in some areas and add value in others, including through substantive provisions relating to environmental and labour standards.

Performance requirements and investment incentives: an overview

“…Investment incentives are often used to counterbalance performance requirements, with some countries using a combination of both performance requirements and investment incentives to control the nature and extent of inward FDI, with investors forced to accept both as part of an overall package of conditions. 115 Studies have shown that a firm's receptiveness to investment incentives is dependent on the stage that it is in during its life-cycle, and the extent to which the incentive that is offered matches its needs at that moment. Newer firms may seek incentives that lower their initial expenses during the start-up phase, whereas more established firms wishing to internationalize are more likely to prefer taxoriented incentives that will raise their profits.…”

Investment regionalism in Asia: new directions in law and policy?

“…6 In contrast, with respect to trade in services, one of the four modes in the General Agreement on Trade in Services (GATS) identifies the supply of services through 'commercial presence' in the territory of another member, which is taken to mean direct investment in services such as branches of financial institutions. 7 Efforts to advance multilateral rules on investment have been stymied under the auspices of both the Organization of Economic Cooperation and Development (OECD) initially and the WTO subsequently (Amarasinha and Kokott, 2008). As of 2010, there has been no further progress.…”

Direito Dos Investimentos E O Petróleo

“…O escopo de mais segurança jurídica beneficiaria simultaneamente os países hospedeiros e os investidores, o que, conseqüentemente, proporciona um incremento ainda maior no volume dos investimentos estrangeiros. 71 Por outro lado, o simples reconhecimento do vultoso crescimento do número de tratados de investimento já representa um alentado esforço no sentido da estruturação de uma moldura jurídica capaz de coadunar os interesses dos investidores e as necessidades dos Estados hospedeiros 72 .…”