Bilateraaliset investointisopimukset ja investoinisopimuskehys WTO:ssa

Ulkomaisia investointeja pidetään usein kehityksen edellytyksenä. Kahdenväliset eli bilateraaliset investointisopimukset (BITs) olivat aluksi yritys lisätä kehitysmaiden kehitystä investointien avulla. Ajan myötä ne ovat kuitenkin muuttuneet välineeksi, jolla suojataan teollisuusmaisten sijoittajien sijoituksia.

BITS-sopimusten ei ole voitu tutkimusten perusteella osoittaa houkuttelevan ulkomaisia investointeja. Siispä ei voida väittää, että monenkeskinen investointisopimus (MIA, Multilateral Investment Agreement) edistäisi suoria ulkomaisia investointeja.

* MIA might consolidate the current tendency of investment agreements which could be geared towards the protection of the investor and leave out promotion instruments for development-friendly investment and forego a better balance between rights and obligations of investors and home countries. It seems unlikely that industrialised nations which have been so unwilling the last 10 years to put development at the heart of investment agreements, will do so when they are negotiating together in the WTO. This changes the argument from proponents of an MIA negotiation in the WTO that an eventual coalition of developing countries will be able to get better terms for development than when negotiating BITs with one Northern country.

* Mahdollinen MIA menisi BIT-sopimusten käytäntöjä pidemmälle usein tavoin:

* * Proposals to have entry and pre-establishment covered by national treatment and MFN in the MIA goes further than current practice of most BITs, even from a bottom-up approach as proposed by the EU and Korea. This would mean investment liberalization goes beyond most current BIT practice. Except for BITs by the US and Canada, BITs provide investment protection after establishment, not at entry. Pre-establishment protection would be development un-friendly because it does not allow countries to be selective in the investment except if they could have been able to make exceptions in an mia that has a bottom-up approach; MFN and national treatment could prevent performance requirements to some investors at entry.

* * There are many differences among existing BITs that could be further eroded by an mia depending on the scope of the definition of investment, the possibility of exceptions to national treatment, etc. 'Older generation' BITs have more development friendly provisions such as a limited definition of investment. National treatment is not included in all BITs because some countries want to limit the more negative effects of international companies for local companies.

* * The most favoured nation (MFN) treatment would have far reaching implications if an MIA would cover pre-establishment rights and have a broad definition of investment. Most of all, the many countries that do not as yet have a BIT with many other WTO members would see their obligations towards investors greatly expanded.

* * Most BITs do not include transparency measures and the ones that do exist do not go as far as the proposal by Taiwan or the EU.

* * Proposals to provide the signatories of an MIA the possibility to prohibit transfer of payments because of balance of payment (BoP) problems would go further than most BITs. This might be positive (see proposal Taiwan and the EU) provided that conditions that apply to the BoP exemption are not too stringent.

* * After a fixed period of time, a BIT allows for the termination of the agreement. Would a country that is a signatory of an MIA in the WTO be able to terminate its participation?

* * Bringing an investment dispute settlement system in the WTO would give investors an other instrument to seek compensation alongside those that already exist. Current practice in the investor-to-state dispute demonstrate that investors are bringing more and more cases for dispute settlement. This might be very costly for developing countries. If an MIA would include the possibility for an investor-to-state mechanism, as proposed by Taiwan, this would go beyond some "old generation" BITs that only had a state-to-state dispute settlement mechanism.

Englanninkielinen raportti saatavissa osoitteesta

http://www.investmentwatch.org/files/SOMO_BITS.doc

Lähde: Novib/ Oxfam Netherlands