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Trade and direct foreign investments (IED)- the interest
of the developing countries within a multilateral framework of the foreign
investments negotiated with OMC
Synopsis
Introduction
...........................................................................................................................
02
1. The legal framework placed at the disposal of
the foreign investors within the World Organization of the Trade
........................................................................................................
04
I. Trims and the GATS : the first evoking a
test of liberalization of the investments and the second like a tool of access
to the markets ........................ 04
A. Trims : a test to liberalize the
investments ......................................... 08
B. the GATS like a tool of access to the markets
by the means of the liberalization of the services
.........................................................................................................................
15
II. The important premise of the questions
related to a policy of non-discrimination setting-in-work in the agreements of
OMC ...............................................................
20
2. A multilateral framework of the foreign
investments, the role of OMC and interests of the developing countries
.........................................................................................................
31
I. the sovereignty of the developing
countries to the detriment of a vast application of the principles
non-discrimatoires
..................................................................................
31
A. The principle of the national treatment
..........................................................................
32
B. the principle of the treatment of the most
favoured nation .........................................
36
C. Um tallies multilateral of the foreign
investments while holding account the interests of the developing countries
.............................................................................
39
D. Stakes of the sovereignty of the
DEVELOPING COUNTRIES compared to the range of the principles of
non-discrimination in a multilateral agreement of the investments
.................................. 41
E. OMC like possible the enclosure of
negotiation for a multilateral agreement on the investments
.......................................................................................................
51
II. Direct international investments and
problems of balance-of-payments
.....................................................................................................................
58
A. Exceptions and safeguards concerning the
balance of payments ............................. 59
B. direct foreign Investments and the balance
of payments .............................. 62
Conclusion
............................................................................................................................
68
Bibliography
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70
INTRODUCTION
« Knowledge is in itself, power. » This
quotation of Francis Bacon could summarize very well one of the problems of
this work and, néanmois, can be used as premise for this
introduction.
At present one apercevoit of a comprehensive framework of the
investments that has nothing of is defined : in fact, the real situation
it is precisely the opposite. One finds oneself in a species of legal phase of
transition.
The International law of the Investments was born from the
need for ensuring a major protection with the foreign investors at the time of
the vagueness of expropriation and nationalizations during the Sixties and
Seventies, carried out by the countries old colonies, under the argumentation
of the preocupation to preserve a permanent sovereignty on its natural
resources. It goes without saying that the promotion of the foreign investments
is a corollary immediate of the safety which to him will be granted. The
current environment concerning the flow of the investments- contrary at the
time of expropriations and nationalizations of the Seventies- is definitely
favorable and, further, the developing countries adopt even policies of
incentive to these same foreign investments.
It goes without saying that this policy of incentive of which
have a tendence with to adopt the developing countries has a very simple
explanation : the foreign investments, pricipalement its method of direct
foreign investments (IED) have a great importance so that its countries can
lead to their progress and growth targets and can complete their policies which
foment the development.
Notwithstanding, all the importance which remains around the
foreign investments and in particular the direct foreign investments, the
multilateral legal framework installed currently does not have a rule concise,
single and defined which can carry out to them on the good way: one hardly
finds standards scattered and attempts at multilateralisation that one failed,
such sound the cases of the World Organization of the Trade (OMC) and
Multilateral agreement of the Investments (the FRIEND), whose enceinet was the
Organization for Economic Cooperation and Developm, OECD.
Within OMC, one finds regulations scattered and separate on
the topic of the investments, shared and distributed in the agreement TRIMs (or
MIC, measurements which touches the trade), the GATS (or AGCS, the general
agreement on the trade of services), the TRIPs agreement (or, in French, ADPIC,
agreement on the rights of ownership intellectual which touch the trade) and
the ASMC. It should well be seen that the range of these agreements is
extremely restricte, limited to only measurements of investment which touch the
trade.
However, the moment is very favorable for the introduction of
a general framework of rules on the investment. Of a part, the number always
crescent of the ILO (TBI, bilateral treaties of investment) contracted between
the various countries, but more between the countries of North and the South,
while revealing a current world tendence of the flow of the transborder
investments. Moreover, the existing rules and standards and into force at
present, well even the attempts at multilateralisation that were not born, give
a base not at all weak for the implementation of such a multilateral
agreement.
A multilateral framework considered : it remains there
however the need for being observed the interests and needs for the developing
countries, while preserving its sovereign rights to regulate the admission of
the foreign investors in their territory, so that one can lead to have a
multilateral framework of the investments which foments really the world
evolution and the progès.
These proposals observed, one can to make so that quotation of
Francis Bacon, which said that the connassance is already a source of power,
becomes that of Victor Hugo, who said that « in knowing, there is to
be born » and in this manner, the developing countries which hold the
most advanced technologies can disseminate to them by implementing them within
the developing countries, while contributing, thus, for the birth of a
new time of total progress and development.
This work is shared in two parts. The first aims has to study
the agreements and treaties concerning with the investments installation and
into force at present : it is divided into two under-parts, the first
concernente with the agreements existing within OMC, in particular the Trims
like a test to liberalize the investments and the GATS like a tool designed
with the foreign investors of access to the markets.
The second disposed one to analyze the possibilities of
setting-in-place of a general framework of a multilateral agreement concerning
the investments, while considering the inevitable character that in which this
agreement is shown and while taking account of the developing countries :
it is also divided into two under-parts, the first being restricted to check
the existing relationship between the right of sovereignty of the host
countries of the investments and the principles of non-discrimination, in
particular the national treatment and the treatment of the most favoured nation
and the second being limited to analyze the problems and solutions that the
foreign investments, especially its method of the direct foreign investments,
can bring to the balance of payments of the host countries, being the latter,
normally, the developing countries.
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