La teoría de la burocracia de ventanilla

The Final Act of the Uruguay Round (Final A c t ) , 203 was signed in 1994 by the

Contracting Parties of the GATT.204 Although it covered numerous agreements, there was no

instrument prepared during the Uruguay Round that specifically deals with FDI, mainly because it was not on the a g e n d a .2 0 5 The focus with respect to investment issues was rather the concern of

some countries206 that certain types of investment measures imposed upon foreign investors by host States, such as performance requirements, distort

trade

Three agreements of the Final Act contain provisions on investment measures: a) the Agreement on Trade-Related Investment Measures (TRIMs A g r e e m e n t),207 b ) the General

Agreement on Trade in Services (GATS) and, c) the Agreement on Trade-Related Aspects of

200 ) Seidl-Hohenveldern, Review of Legal Fram ework for the Treatment o f Foreign Investment, Vol. I - Survey o f Existing Instruments, Progress Reports and Background Studies and Vol. II - Guidelines, Report to the Development Committee and Guidelines on the Treatment o f Foreign Direct Investment, by the World Bank Group (1993) 46 Austrian J.Pub.Int’l.L. 104.

201 ) Walde, International Investment under the 1994 Energy Charter Treaty, 265.

202 ) Shihata, “The Settlement of Disputes - General Propositions and the World Bank’s Approach and Experience’’ in

Shihata, The World Bank in a Changing World, Vol. Ill, (The Hague, London, Boston: Martinus Nijhoff Publishers, 2000) 215 at 242.

203 ) The Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (Final Act). 204 ) For a list of Contracting Parties, see: Appendix D.

205 ) Sauvé, “A First Look at Investment in the Final Act of the Uruguay Round” (1994) 28:5 J. World Trade 5. 206 ) Particularly the US was a strong supporter of the TR IM s Agreement.

207 ) Trade-Related Investment Measures (TRIM s) are certain types of performance requirements imposed upon an investment. TR IM s may distort or interfere with trade. Typical TR IM s are export performance requirements and local content requirements. For more details on TR IM s see: Graham and Krugman, “Trade-Related Investment M easures” in Schott (ed.). Completing the Uruguay Round: A Resuit-Oriented Approach to the G A TT Trade Negotiations

Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPs Agreement). The TRIMs Agreement and the GATS include most of the rules related to investment m e a s u r e s.208

T h e T R I M s A g r e e m e n t , w h ic h a p p l i e s o n ly t o i n v e s t m e n t m e a s u r e s r e l a t e d t o t r a d e in g o o d s , 209 lis ts in its a n n e x illu s t r a t iv e T R I M s , w h ic h n o C o n t r a c t i n g P a r t y m a y a p p l y if s u c h a T R I M is i n c o n s i s t e n t w it h A r t ic le III ( n a t i o n a l t r e a t m e n t ) o r A r t i c l e X I ( q u a n t i t a t i v e r e s t r ic t io n s ) o f t h e G A T T 1 9 9 4 . 2 i o Illu s t r a t iv e T R I M s c o v e r t r a d e - b a l a n c i n g r e q u i r e m e n t s 2 i i a n d e x p o r t l i m i t a t i o n s .212 T h e T R I M s A g r e e m e n t s u f f e r s f r o m s ig n if ic a n t s h o r t c o m i n g s . F ir s t , it d o e s n o t d e f i n e a T R I M , a p p a r e n t l y b e c a u s e S t a t e s c o u ld n o t a g r e e u p o n a d e f i n i t i o n .213 S e c o n d l y , t h e t r e a t y a p p l i e s o n l y t o i n v e s t m e n t m e a s u r e s a f f e c t in g t r a d e in g o o d s , n o t t r a d e in s e r v i c e s . T h i s a r t if ic ia l d i f f e r e n t i a t i o n a d d s t o t h e u n c l e a r a r r a n g e m e n t o f p r o v is io n s o n i n v e s t m e n t m e a s u r e s in t h e F i n a l A c t a n d c a n n o t b e j u s t i f i e d .214 T h ir d ly , t h e i n s t r u m e n t is r a t h e r lim it e d in s c o p e . It a l l o w s g o v e r n m e n t s t o im p o s e o t h e r f o r m s o f T R I M s n o t lis t e d in t h e i n s t r u m e n t .215 S u c h m e a s u r e s r a n g e f r o m d e m a n d s f o r lo c a l e q u i t y t o lic e n s in g r e q u i r e m e n t s .216

The GATS contains most of the investment-related provisions. Its cornerstone is Art. II (MFN treatment). Art. XVI (market access) and Art. XVII (national treatment). While Art. II is applicable to all parties and all sectors. Art. XVI and Art. XVII apply only to specific sectors. The provisions of the GATS appear liberal, but in fact they only define categories of restrictions, such as limitations on monetary transfers, which may not be imposed upon a foreign service

provider.217

208 ) Only provisions in the TR IM s Agreement and the G ATS are mentioned here. For more details TRIPs Agreem ent see: Sauvé, A First Look at Investment in the Final Act o f the Uruguay Round, 13-14. For additional investment- related provisions, see also: Agreement on Subsidies and Countervailing Measures.

209 ) Investment measures related to the trade in services are set forth in the GATS.

210 ) Agreement on Trade-Related Investment Measures, Art. 2(1).

211 ) Annex to the Agreem ent on Trade-Related Investment Measures, Art. 1(b).

212)/p/d , Art. 2(0).

213 ) Footer, "Trade and Investment Measures in the Energy Charter Treaty” in W alde (ed.), The Energy Charter Treaty: An East-W est G atew ay for investment and Trade (London, The Hague, Boston: Kluwer Law International, 1 9 9 6 )4 4 5 at 452.

214 ) Sauvé, A First Look at investment in the Final Act o f the Uruguay Round, 8.

218 ) Compare: The North American Free Trade Agreement, Art. 1106, which is wider in scope. 216 ) Footer, Trade and Investment Measures in the Energy Charter Treaty, 453.

217 ) General Agreem ent on Trade in Services, Art. Xl(1). 82

The Final Act does not address the treatment and protection of FDI in as much detail as the significance of the subject matter requires. The few investment-related provisions are not included in a single document, but are spread through different agreements. They therefore lack a broad scope of application, clear definitions and adequate transparency.2^8 Some issues addressed, such as TRIMs, appear isolated from other aspects. Investment incentives, for instance, are inter-related with TRIMs.219 The Final Act illustrates that the regulation of

some

investment issues in an agreement meant to regulate trade, adds to the complexity and creates confusion. Investment should either be adequately dealt with in such instruments, as for example in NAFTA, or not addressed at all. Given the comprehensiveness of FDI, it may be wiser to conclude a separate investment treaty, rather than to deal inadequately with investment issues in trade agreements.