An attempt was made to terminate the introduction of one general text relating to the regulation of the FDI. In other words, the cancellation of the draft text pertaining to the Multilateral Agreement on Investment ("MAI") which was elaborated through the patronage of the Organization of Economic Cooperation ("OECD"). This abortion has given rise to several inspirational developments and confessions. Firstly, there is the existence of the acknowledgement of the paramount importance of foreign investment in global economics and the impact that the ceased draft text has on both economic growth and on the development of societies. Secondly, it demonstrates that many countries wish to promote general standards that would govern the FDI. In this respect, the MAI highlights some fundamental principles that serve as rudiments to every FDI operation. For instance, legal certainty is one major concern for investors. Many decisions on whether to invest or not are certainly subordinated to the assessment of the legal certainty that a given country can guarantee. Moreover, as was underlined in class the respect of this principle is beneficial to both parties especially in an investment operation. The benefited parties are the investor and the host country. The same rule holds good with respect to the principle of transparency.
[...] The future of Investment Regulation What do you think ought to be the future of international regulation via treaty of FDI? Would you advocate taking another stab at creating a multilateral treaty along the lines of MAI? If so which provisions of MAI or formulations of particular key provisions would you recommend for future negotiators? The aborted attempt to introduce one general text relating to the regulation of FDI, such as the draft text of the Multilateral Agreement on Investment elaborated under the auspices of the Organization of Economic Cooperation inspires several comments. [...]
[...] Alongside the promotion of universal guidelines, I believe that there is one aspect of FDI that should be regulated on an international level. This aspect lies in the definition and implementation of a neutral mechanism of dispute resolution. Indeed, investment arbitration appears as the most efficient and appropriate way to resolve potential disputes between investors and host-states as it fully conforms to the philosophy and logics that should govern FDI. Bibliography Q and A on the MAI, from OECD Draft text of the MAI, May 1998 Commission on Human Rights, E/CN.4/SUB.2/1998/8 (Report by Jose Bengoa, Special Rapporteur) International Covenant on Economic, Social and Cultural Rights E. [...]
[...] This state of things demonstrates that it is almost impossible to reach an agreement on this point on the international scene. In this respect, one might argue that believing in the adoption of the MDI draft was somewhat naive or illusory. Moreover, when one takes a closer look at the MDI draft, one realizes that it was extremely biased towards investors. Instead of taking a universal approach, it was taking a very “Western approach” to FDI[1]. It was all about affirming investors' rights. This is certainly the major reason of the failure to reach an agreement on this text. [...]
[...] All other aspects should be left to the parties to a given FDI operation. Indeed, only these parties can determine and assess the factual and contextual circumstances and constraints that will be at the basis of their negotiations. Only specifically tailored agreements can lead to a real relation of cooperation between the parties and to the establishment of an adequate balance between the interests of the different actors involved. Indeed, thinking that there is a unique recipe that could govern FDI relations is too simplistic. [...]
[...] Graham, Fighting the wrong Enemy (2000) Cf. p.4 of the readings are these negotiations taking place in OCD ? . They also share a common view of the benefits of FDI and have reached an advanced stage of liberalization. Moreover they have considerable expertise and experience . These arguments are not enough to give the text its legitimacy. [...]
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