Barreras que obstaculizan la implementación de los planes de carreras

The current investment law regime reveals a remarkable absence of guiding procedural principles governing the behavior of the actors and the operation of the instruments that animate the system when the importance and e fects of

transnational capital are considered. There are five core principles that should apply to all aspects of the system.

1. Transparency

Transparency is a fundamental norm of good governance and the rule of law. Given that the investment law regime involves many issues of public interest (rather than private interests between contracting parties), there is a need to enshrine transparency as a fundamental principle of the system. The presumption should be that in the formulation, implementation and enforcement of investment law, stakeholders should be able to find out about critical elements of the process, access key documentation, and witness important proceedings. For instance, dra ts of investment treaties, national laws on investment, and proceedings of national courts and investment tribunals should be made publicly available.

2. Participation

Participation, understood as some form of voice for the governed, is a norm of good governance that can be found across a wide range of political and legal systems, including (but not limited to) Western democracies. In the investment context, it is not su ficient that stakeholders merely have access to information. They also need to be able to actively participate in and engage with the process by which investment law and policy is formulated, implemented, and enforced at both national and international levels.

Di ferent kinds and levels of participation will be appropriate at di ferent stages in the investment regulation process. A participation principle implies, for instance, that at the national level, governments should have consultation processes that allow meaningful contributions from citizens over the formulation of policies regarding international investment protection, liberalization, and contracts with investors that have significant implications for public services. At the international level, given the lack of democracy in many

states, non-state parties, including community representatives, should be able to participate in processes such as regional and international treaty-making processes and disputes between states and corporations.

3. Reciprocity

In the context of international investment governance, the principle of reciprocity means that when key actors are given valuable legal rights within an investment regime, good governance entails that they also bear appropriate legal duties and obligations.

The key beneficiaries of the current investment regime are corporations. Their rights are protected by national laws and international investment treaties. While investors also have responsibilities as set out in investment contracts and national legislation (e.g. on workers' rights, environmental laws), the power imbalances between investors and many states and the mobility of capital means that the responsibilities of investors are not always commensurate with the benefits they receive, nor are they as readily subject to judicial oversight as the rights of investors.

Good economic governance means ensuring that legally privileged actors such as, in the investment context, foreign investors, have responsibilities that are commensurate with the benefits they receive through the investment law regime, and that the interests of all key stakeholders and a fected parties, not just investors, are represented or accounted for in an appropriate manner. For instance, international investment governance could be used to meaningfully reinforce key international legal principles from other areas of international law (such as the UN Guiding Principles on Business and Human Rights).

4. Accountability

Accountability is a fundamental norm of governance today. Without accountability, exercises of public authority, and private economic power under the aegis of public law, lose legitimacy.

Currently, the investment law regime only holds states accountable and not investors. This is inconsistent with the principle of accountability understood as a norm of good governance. Instead, there should be mechanisms for ensuring that corporations that fail to abide by their obligations are also held accountable for their conduct. This principle should apply to both narrower contractual obligations and broader legal obligations at both national and international levels, so that both states and a fected communities have means of redress for significant harms done to them.

A more traditional form of accountability would be to reform the investment dispute system to incorporate some form of judicial or appellate review of arbitral tribunal decisions.

Another kind of accountability may be appropriate when a new investment contract or treaty is being negotiated. Imposing obligations of due diligence on the state and disclosure on the investor, could, if coupled with the transparency principle, ensure that a fected constituencies and civil society receive the relevant information that would enable them to e fectively participate in the obligation-formulation stage. This kind of accountability can also help downstream, should it become necessary to identify and enforce failures on the part of the investor to honor its commitments to abide by national and international law.

5. Subsidiarity

Subsidiarity is a principle that argues that issues should be decided only by a higher authority when the objectives of an action cannot be e fectively achieved by a lower authority. The underlying rationale is that individual human beings should be no more separated from decisions that a fect them than is necessary to protect their interests. The principle of subsidiarity in this context suggests that it is only when objectives cannot be met at the national level that it should be recourse to the international level to try to find solutions.

One of the key challenges for re-imagining international investment law is to decide what role the existing governance levels and forms should play in harnessing opportunities and addressing challenges. An international investment regime will necessarily include components at each level. Not all solutions are located at one level alone, nor is a "one size fits all" solution imminent. International e forts can and should support genuine democratic governance at the national level, while at the same time making a contribution to addressing important global problems that countries struggle to address by themselves.

The mobility of foreign investors causes some problems for individual states trying to make e fective decisions about foreign investment. Thus there may be some situations where international rules governing investment are necessary to protect the ability of states to regulate and, for example, avoid "races to the bottom" and tackle global commons issues such as climate change. Even where there is a genuine rationale for raising issues to the international level, there should be a clear understanding of the likely costs of such a process (for example, in terms of possible democratic deficits) and the likely gains.

A systematic application of the principles of transparency, participation, reciprocity, accountability, and subsidiarity would contribute to shaping an enhanced international investment governance system.