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Commerce et investissements étrangers directs (IED) - l'intérêt des pays en développement dans un cadre multilatéral des investissements étrangers negocié à l'OMCpar Daniel Dantas Université Paris I Sorbonne - DEA Droit International 2005 |
1. THE LEGAL FRAMEWORK PROVISION OF THE FOREIGN INVESTORS WITHIN THE WORLD ORGANIZATION OF THE TRADE.In this first part of this work, one proposes to analyze, all at the same time, agreements GATS and Trims and his specificities (I), while making a study of the reports/ratios which they added with the question of the international investments. Then, one will restrict oneself to study the important premise of the questions related to practices of non-discrimination (II) within OMC. 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.The subject of the investments was introduí within the framework of the concerns of the World Organization of the Trade- OMC- in 1996, according to the first Ministerial Meeting of this organization, which took place in Singapore1(*). Another important result to which the Meeting of Singapore led was the creation of a group of work charged to analyze and study the relations between trade and investment, not having, nevertheless, mandate to give rise to négotiations of the concernents terms to a multilatérals agreement of the investments2(*) : it is about the Working group on the Relations between the Trade and the Investment- the WGTI, in accordance with its translation equivalent in English, « Working Group one the Relationship between Trade and Investment. » When they are investments, he is fundamental to make a differentiation between his two categories : named investments of portfolio and direct foreign investments (IED). The first can be included/understood like the kind of investment having like drank the profit, obtaining benefit, without having any concern compared to management or control establishments or businesses where the capital was invested3(*). The direct foreign investments, on the other hand, according to the definition of the International Monetary International Monetary Fund (the IMF), are «the denotative species of investment internacional of the goal, of the part of a company having residence of an economy, to obtain a durable participation in a company resident in another economy4(*). » Like already explained, this work has as a target to study the interference of the IED within the framework of the indissociable relation between trade and investment and is, however, with this type of investment which one will restrict. However, the definition of direct foreign investment is an always polemical topic, remaining object various proposals of the part of the countries developed like developing countries, in what the implementation of a multilateral agreement of the investments relates to. The analysis of this plurality of opinion will be the substance of another part of this work. While returning to the adoption and the inclusion of the investments within OMC, one observes the subject already regulated, but in a scattered way, dispersed and decentralized among his many agreements : agreements to measures concerning the investments and related to the trade (the MIC); agreements on the aspects of the rights of ownership intellectual which touch with trade (ADPIC) ; the agreement on the subsidies and the compensatory measures (the ASMC) and the general agreement on the trade of services (the GATS, for « general agreement one trade off services ».) Trims and the GATS, being two agreements that one the most importance and relevance for the subject covered in this work, will be studied more deeply in the next pages ; but before it is made essential a short recapitulation of the topic with OMC, Uruguay Round until the failure of the Ministerial Meeting of Cancún, while passing for the topics of the Meeting of Singapore which were incorporated by the diary of development of Doha. The World Organization of the Trade, such as one know it today, was the result of the Cycle of Uruguay, it « millenium round », in 1995 ; notwithstanding, the topic of the investments would not be included within the framework of the agreements of OMC until the following year, 1996, for occasion of the first ministerial meeting of supra quoted the organization, which took place in Singapore. In spite of that, the subject investments, with the similarity of other subjects, had already been among the proposals of the Charter of Havana, in the Fifties, which aspired to create the International Organization of Trade (OIC)5(*). The not-ratification of the Charter of Havana by the Congress of the United States had as a consequence the entry in viguer part relating only to the trade of goods, the general agreement on the tariffs and trade, GATT, conceived to fulfill the functions of a temporary agreement but which lasted almost 50 years. And within the framework of GATT, de facto, the topic of the investments was always treated in a secondary, marginal way. It is only much later, at the end of the Seventies, with the cycle of Toquio, which one contemplates the negotiation of some specific topics like the technical subsidies, obstacles with the trade and the government procurements, which can be relationés with the creation of the conditions favorable for the growth of the investments. After the Advent of OMC, it is possible to notice the adoption of rules and precepts, in spite of scattered, concerning the investments, as is the case of the Trims, the GATS, the TRIPs agreement and the ASCM. But it is only at the time of the cycle of Singapore that east creates for itself Group de Travail on the relations between the Trade and Investment (from now on WGTI, its initials in English), charged to examine liasons them and the interdépendences enters, obviously, the trade and the investments. In Singapore, in 1996, was negotiated the subjects of definition on the topic « Investment and Competition », which wants to say, like easy deduction in spite of different the philological roots, « Investment and Competition » and, in this meeting, were decided the créacion of two working groups : one charged to examine the relation between the trade and the investment and the other person in charge to study the problems addressed by the Members concerning the policies of control of the trade and the competition, such as for example the anti-competitive practices, having for goal to identify zones which can make object of a future consideration within the framework of OMC. The next step taken for the negotiators of OMC in what relates to the investments is given at the time of the 4th Ministerial Meeting which took place in Doha, Qatar, in 2001. In this moment, was implemented within OMC one « cycle development », that its beginning would have there, while having in the Ministerial Meeting of Cancún two years after its intermediate stage and finishing there in forthcoming Réunion, in 2005. Also deserving to be noted, here was elaborate a Ministerial Declaration, which detailed the program of work conferred on Group de Travail creates at the time of Singapore, competence limited for analiser, to study and clarify especially the exchanges questions, recognized in its paragraph 22, which laid out on the range and the definition of the topic investments, the transparency, the non-discrimination, method for engagements before establishment resting on an approach based on positive lists of type AGCS (or GATS), provisions relating to the development and consultations and settlement of the disputes between the members. Nevertheless, the Declaration of Doha, in paragraph 20, also recognizes « arguments in favor of a multilateral framework intended to ensure of the transparent, stable and foreseeable conditions for the transborder investment in the long run, in particular the direct foreign investment in the long run, which will contribute to the expansion of the trade. » Still in Qatar, the subjects of the Ministerial Meeting of Singapore were taken again and reorganized in the Doha Diary of development, but since it « cycle development » of OMC dérrouler would have during two other Ministerial Meetings- 2003 and the 2005- subject of the investments in Doha was marked by the beginning of the negotiations having for goal to harmonize the national laws of the Member States which controlled the entry and the admission of the foreign investments and, well even, of the studies for the establishment of the mechanisms of protection to the direct foreign investments6(*). The cycle of Doha is finished with some « victories » for the developing countries- in particular in the fields of the intellectual property (Trips), as was the case of Brazil- but without leading to any expressive result. Two years later place had, in Mexico, the 5th Meeting Ministerial of OMC, the cycle of Cancún. Cancún was marked obviously for its failure, was caused, in particular by the divergences and the disparities of negotiation of the topics of Singapore between the Members. While taking action on « cycle development » started in Doha, Cancún would have, among other subjects, to take again the four points originally born at the time of Singapore ; in other words, Cancún should continue the negotiations initiated in Doha. However, when the European Union decided to adopt and maintain the position not to discuss not the topics concerning with agriculture until the moment when the points of Singapore would be negotiated7(*), the tone of voice of the developing countries changed and the predisposition to negotiate was dissipated. Beforehand, this position adopted by the European Union remained disputed by South Korea, Indonesia and Malasie, however, because of insistence, of the part of the EU, to maintain a policy of inflexibility, the example of these Asian countries was followed for the other developing countries, resulting the end from the Ministerial Meeting and the failure of the negotiations of the topics of Singapore. Of course, the cause of the failure of this Ministerial Meeting are much more complex and include subjects much more various, but in short, the cycle of Cancún also has compromised the diary of Doha : the Member States failed has to define a calendar and methods of negotiation which one were fixed by the Meeting at Qatar in 2001. In spite of the failure of the Ministerial Meeting of Cancún and consequent delayed-action of the diary of Doha which contained the topics of Singapore, the subject of the investments- and particularly of the investments direct foreigners, known by initials IED- finds, within the framework of the World Organization of the Trade, a regulation, though scattered and épandu and still far from satisfactory, notwithstanding good founded and being equipped with a certain coherence. As already quoted, the subject of the investments and the foreign investissemnts direct does not find a support in the agreements TRIPs E TRIMs and the general agreement on the trade of the services, the GATS. To have a major importance for the topic suggested, the Trims and the GATS will make object of a study more detailed in this work. After, in a first under-part, the Trims will be analisé from a legal point of view (A), while weaving an interpretation of its articles and application their made by the Members in the most famous businesses and also analisant the Trims as an instrument of test to liberalize the framework internacional investments; in a second moment, the GATS will be the object of study (B) : its characteristics, the service ratios/investment and well even a analise of the GATS like a tool, for the foreign investors, of access to the markets. A. Trims : a test to liberalize the investments ? The TRIMs agreements were inserted in the middle of OMC at the time of « Millenium Round », the cycle of Uruguay of 1995. But the topic investments was before the object of discussions in the international sphere already a long time ago, more precisely at the time of the Conference of Bretton-Woods, during the time of post-war period in 1945, from where one observes the idealization of the three pillars of the commercial and financial system world : International Monetary International Monetary Fund (the IMF), the International Bank for the Rebuilding and Development (BIRD) and the International Organization of Trade (OIC) ; the last would have had the function to discuss the subjects concerning with the investment, but, as one knows very well, the idea did not succeed and the reason is not at all surprising : the Congress of the United States refused has to ratify the declaration and the project broke down. The subject of the investments was object of discussion again only in the already aforesaid cycle of Uruguay, while culminating with the implementation of OMC by replacing it « provisional » GATT, but by preserving its précepts. However, for including/understanding it well why inclusion of the Trims within the general framework- the Trims appears in the appendix 1.A of the Charter of OMC- of the Organization, it is necessary to return at the time of GATT 47 so that one can analyze some factors and elements which gave birth has the justifying ones for the junction of an agreement concerning measurements of investment which touched the world trade within the Organization. A litigation between the United States and Canada, dated from the beginning of the Eighties, interposed with the Body of Call of GATT and which carried on « administrative practice that the Government of Ottawa had grafted on the Canadian law of 19738(*) », regulating of the foreign investments. The aforementioned law made it possible the Canadian proper authorities to require, like requisition for the admission of the foreign investors in his territory, the realization of some « performance requirements », that can be translated like obligations of result9(*) : the authorities established the requirement of subscription, of the part of the foreign investors, before even as they received the authorization to carry out the operation considered, of engagements of three orders, are they engagements of manufacture in Canada, engagements of provisioning in Canada and engagements of export out of Canada10(*). In the light of the case, the Government of State-Plain, while taking account that the practices adopted by the Government of Ottawa were a contrario sensu of all that was disciplined in GATT, requires, beforehand, the opening of a lawsuit of consultations- the not-contentious procedure of the Body of Settlement of the Disputes of OMC- and, not having the aforementioned consultations completed nothing satisfactory, the United States, later on, initiate the contentious phase while asking for the introduction of Group Spécial (panel) within GATT. After to be recognized the competence of GATT on the matter- normally the international organization would not take the responsability to analyze the Canadian law per, but the practices gouvernamentales which could manage effects harmful on the world trade of the goods11(*), the panel, already founded within the ORD, initiates the analyzes and the provisions concerning the engagements required by the Canadian Government on manufacture, appriviosennement and the export of the products manufactured by the foreign investors. In short, the report/ratio of Group Spécial concluded that engagements of manufacture were not parmis the subjects which made the competence of GATT and, however, remained defended of some posterior analysis ; engagements of provisioning went against some restrictiones present at art. III, paragraph 4 of General Acord and, finally but not less important, engagements of export was not incompatible whole with GATT12(*). Such décisiones of GATT was used as a basis and fondament for the créacion of the Trims and insertion in the declaration of Punta del Leste, at the time of the cycle of Uruguay. The Trims, in spite of the fact that it regulates only measurements of investment which affect the trade, was the first grouping of standards which treated topic investments exclusively. And, even during the lawsuit of adoption of this whole of standards, it mostrait already obvious the diversity of opinions between the developed countries and the developing countries (divergence which always currently continues) : with the step which the first channeled their efforts in the direction of a regulation of measurements of investment and, conséquentement, for a limitation of the operation of the Governments of the host countries- particularly the developing countries- on the foreign investments, the second sought a maintenance of the standards minimal of regulation and interventionism on these same foreign investments, with a greater freedom of application of the Trims13(*), like a manner of possibiliter a development balances of its own internal market. And it is due A this discordance between developed countries and developing country which at the end of the cycle of Uruguai one succeeded, within the framework of the investments, only to establish the TRIMs agreement : here, the use of the term only wants to show can it accomplished vis-a-vis the extent of the regulations and measurements still has to grant ; notwithstanding, the fact of having enraciné a type of agreement within an International Organization and to have found a kind of common point between the developed countries and under development could not be considered as being already a conquest. Roughly speaking, the purpose of the TRIMs agreement would be principal to restrict the policies of the Member States which the rules trangressaient imposed by OMC, more specifically the principles devoted within GATT 1994 of the national treatment and the elimination of the quantitative restrictions- articles III.4 and XI.1, respectively- related to the international investments, by referring, however, with only those which touch the trade. Admittedly, the adoption of new the Trims for Member States of the World Organization of the Trade which go against article III relating to the national treatment and to article XI relating to the suppression of the quantitative restrictions from now on prohibited14(*) must has its character to restrict and/or put obstacles at the trade ; nevertheless, in what relates to those which existed before, with those one checks the regulation of the terms so that the various Member States proceeded has to withdraw them, to remove them from their whole of legal standards15(*). Such measurements adopted for developing countries which did not respect articles III and XI recommended within GATT were not well seen for the developed countries : the latter regarded them as being measurements that distorsives effects with the trade had, being inclusive able to constitute a new way of proteccionism16(*). On a side, according to the doctrines of professor Michel Rainelli, measurements of investment which touch the trade would also have like goal, to limit the negative effects of the investment foreigners concerning the trade of goods, while giving like example the controlled sales, the transference and the fixing of the prices and well even the sharing of markets. These measurements could be, therefore, regarded as instruments of economic policy, ready has to promote the development. Much was discussed to these measures which, once adopted, could promote notable and visible acceleration of the development and economic growth in the countries called of the South. No matter what they are measurements related to a character of technology transfer, dissemination of know-how or even of safety to internal industry, one can observe and quote three groups of measures of investment which are frequently proposed by the developing countries. 1. rules of local contents, i.e., rules which charge the obligation of a percentage minimal of components of local origin so that um well either considers as being national and, however, exemption of the customs impositions ; 2. rules of balance of the foreign trade, i.e., rules which impose a «cover» of the imports of the company by um given and precise number of exports ; 3. rules of minimal observance of exports, i.e., the possibility of the foreign investors are subjected to the condition of intends part of ace production for export for the palce of the internal market of the country host like a condition to be allowed in the territory of the aforesaid country. The interpretation of the articles which contains the TRIMs agreement. Is made important here a didatique and detailed analysis of the articles components the agreement on the Trims, all in donnat a special enphase with those which were the object of the litigations and which were subjected for the examination by a panel and Body of Call of the Body of Payment of Disagreements within OMC. First of all, article 1 of the Trims refers only to the agreement scope : an introduction to the application of same, all in déterminat that the Trims shelter only measurements of investment which touch the trade. The article 2, and perhaps most important and more controversy article of the agreement from the point of view of the developed countries and under development, includes in the agreement the already devoted (by articles III and XI of GATT) principle17(*) of the national treatment and the obligation of elimination of the quantitative restrictions. The business Indonesia- cars had like fondament this same article 2 of the Trims. In this business, European Community and the United States Al that the program automobilistic indonésien gone back to 1993, for the skew of the concession of the pre-tax profits has cars which had, including in its total value, a proportion given of the components nationals (that wants to say, components indonésiens) and by the means of the concession of the customs benefit to the parts and components imported which would be used in the cars to which certain proprtions of the domestic products had been built-in, went against the provisions of article 2 of the Trims and also against article III.4 to GATT 1994. Japan, the European Community and the United States also pled that the program automobilistic indonésien of 1996, while providing to the components nationals certain prerogatives related to benefit fiscaus for cars nationals- which, by definition, should have had a percentuelle value of components nationals in its composition- and while also providing customs prerogatives for parts and components imported which would be incorporated in cars nationals, went against the provisions of article 2 of the Trims and article III.4 of GATT 1994. In short, after having Group Spécial (or the panel) decided so the aforementioned measurements would be « measurements of ivestissement » and, then, to have decided if measurements would touch the trade- trade-related -, it gave its decision concerning the inconsistency or not with article III of GATT 1994 referring to the national treatment and, consequently, the inconsistency with the TRIMs agreement. Measurements adopted by the Indonésien Government were consider by Group Spécial, bases on the Illustrative Lists of article 2 of the TRIMs agreement, as being characterized like «advantages»18(*) and, however, not agreeing with the príncipe national treatment evoked in the aforementioned agreement TRIMs and well even in article III of GATT 1994. The other businesses19(*) which were decided in the light of article 2 of the Trims are the businesses of the European Community- Bananas III (from now on EC.-bananas III) and Canada car ; in the first, which as a subject the procedure of placement of the licenses of importation of the European Community had in a special category, Gropu Spécial decided incoherent with the aforementioned agreement ; in what the second business relates to, which for subject, by the Government of Canada, the value of the cars in Canada but intended for a market other than Canadian compared to cars intended for the consumation of the market interns Canadian, after having to examine the vissicitudes between the general proposals for a character of GATT and the specificity of the TRIMS- the explanation and analysis thorough of these vicissitudes not being the goal of this work, one had the increase manufactured will not be held a long time on them- Group Spécial rejected the complaints according to lasquelles cettes prerogatives of the Government of Canada enfreindraient in some way the provisions of article III.4 of GATT 1994 or agreement to the measures of investment which touch the trade, Trims. Article 3 prescribed the application of the exception within the Trims: this article was quoted and examined in a short way at the time of the business Indonesia- cars. One observes in article 4, extremely important for, the presentation developing countries of the exceptions themselves- the exemptions- like a form to balance problems of balance-of-payments. As us professors Carreau and Juillard apprendent, the goal of these exemptions is to make it possible the developing countries to adopt, in a provisional way, TRIMs measurements in the hope which they can lead to the solution to problems in their balance-of-payments20(*). With the step which article 5 lays out on the transitory notifications and agreements, article 6 has on the importance the part which the transparency in the TRIMs agreement plays. Article 7 lays out on Comitee responsible for measurements for investment which touch the trade (from now on, it « Comitee »). The most remarkable thing considering this work is checked in the paragraph 3, in which one can read that Comitee will be responsible to supervise the operations of the TRIMs agreement, and well even it will have to defer its conclusions in an annual base to the Council for the Trade of the Goods. In article 8, there are the provisions relating to the procedure of settlement of the disputes ; the TRIMs agreement takes again here articles XXII and XXIII of GATT 1994, incorporated in the Memorandum of Settlement of the Disputes. Until now the moment there exist only three litigations that one evoked jurisprudence existing in the aforementioned agreement : its respective denominations, its numerations at OMC and the articles evoked are precise above, in a small explanatory box :
Lately, article 9 of the TRIMs agreement states the obligations of revision of this agreement, indicated as being due has to be made each 5 (five) years, under the responsibility of the Council for the Trade of the Goods. Why the Trims is regarded as being a essay to liberalize the international investments ? The Trims agreement (or MIC as he is known by its French translation), in the manner as he is regulated at present, not to allow not an incisor participation, penetrating of the State of reception concerning in the regulation of the foreign investments : a vaster freedom of applications of Trims measurements, as being a manner of possibiliter a development more balance of its industry and, consequently, its economy, is impossibility by the proper provisions of the agreement. The adaptation of the precepts devoted within the General Agreement on the Tariffs and the Trade- GATT-, case of the principle of the national treatment and also of the interdition to quantitative measurements, does nothing but contribute to increase the harmful effects of the phenomenon of the globalisation : equal treatment applied to the unequal ones. One observes also a kind of Darwinism commercial and social, where the interests of those which are strongest- naturally, the developed countries- exceed the needs for those which are weakest- clearly, the developing countries. Under the terms of these facts, it is necessary to approach, in a preliminary way, two different aspects. Firstly, with the need for the developing countries to be able to control or even intervene with the foreign investments - and, among these investments, most important are the direct international investments, because they are one of the supporting factors of the development and of the growth of these countries- tired TRIMs measurements, all were opposed in their prohibiting to adopt measures and to issue terminals regulatoires relating to the investments under the argumentation that these auriont the capacity to nuisir the world trade. But it would be really equipped with an incontestable coherence, in favor of the liberalization of the world trade and of a globalisation already present, to condemn the developing countries has a growth and an evolution- all in considérnat that, even having considerable obstacles, they would succeed has to complete a growth and an evolution ! - unbalanced and already too delayed ? Then, an agreement which as generating factor the development of all the countries has which signed it and ratified and which foments the world growth by the means of the regulation of the international trade must allow a standard minimal of discrimination of the part of the developing countries (exemptions envisaged not being sufficient) : the unequal treatment of unequal must be admitted, with research to succeed itself a model total of development and growth right and balanced. The Trims opened the way for a liberalization equipped with protection of the investments for foreign investors : such measurements of investment which touch the trade allow multinational corporations one « unlimited capacity » to also proumovoir the investment anywhere and making weaker the sovereign right gouvernamental to establish regulations compared to the international investissemnts. By limiting the intervention of the importing State of investment, is limited also its capacity to use and channel the entry of these same foreign investments towards the internal development. However, thanks to the experiment of the Trims, it is possible of inférer that possible, even inevitable, multilateral agreement on the investments must take into account the interests and needs for the developing countries, in order not to allow the checking of a philosophically unilateral agreement, whose just foreign investors- normally those of origin of the developed countries, exporting of capital- have the interests taken into account. Nevertheless, these subjects will be examined in a more precise way in the next pages, where importance social, political, economic and even environmental of the international investments, and here once again, especially direct international investments, será analyzed, while paying a special attention to the importance of those for developing countries and to the need for an international regulamentation on the matter which takes into account the interests of the latter. B. the GATS like a tool of access to the markets by the means of the liberalization of the services. The provisions on the investments contained in the General Agreement on the Trade of Services (the GATS, in accordance with its translation in English) appeared, during the discussions concerning the adoption of a multilateral agreement on the investments- subject which will be treated in another occasion and which is the central problems of this work- much more important than those belonging to the TRIMs agreement, supra mentioned. The reason for that is simple : one of methods of supply of the services envisaged by the GATS acts of the commercial presence. That is translated clearly into a type of international investment transborder. This being, the obligations of the treatment of most favoured nation (NPF) and the national treatment (TN), well even engagements of access to the markets existing and negotiated within the GATS have a direct effect on the investments of the part of a Member State so that it can put-in-work the supply of the services in the territory of the other Member States. Nevertheless, this method of supply of the services, by the means of the transborder commercial presence is not at all, as one could expect well besides, simple. As us Carreau and Juillard apprendent, « the lesson of the complexity of the operation of transborder supply of services is clear : this one, to open out, needs the presence of other subjacent economic freedoms which allow setting-in-work of it. On an international scale, freedom to provide services is related on freedom of movement and the free establishment of the perdosnnes, with the freedom of the international payments- as well current as in capital -, like with the freedom of the investments- without speaking about free movement of the goods. The transborder supply of the services illustrates better than any other operation the deep unity of the international exchanges : free international economic transactions imply parallel and simultaneous freedom of movement people, goods, services and capital21(*). » A free international economy is, therefore, founded on the market22(*). But the international trading system that one currently observes is de facto far from this ideal design : while reinforcing these arguments, the proper implementation of the GATS only as from January 1, 1995 is useful as the angular stone to justify the existing gaps from the point of view of a liberalization of the international trade of the services- which risks, moreover, to stumble itself on the restrictions already setting-in-place relating to the not very open sectors of the trade internacional, as is the case of the movement of the people and goods and, obviously, of the sector of the foreign investments. One infére E that, therefore, that the sector of the services was a field neglected a long time by economic sciences and the international regulations. The sector of the services is nonseizable. There remained a long time a contempt of the economy concerning the importance of the services. However, a contrary movement today is observed : the sector of the services is, at present, one of more important sectors by the economy of the countries - the contribution of the services in the GDP of the countries varies from 60 to 70%23(*) ! It is also about a sector which changes constantly with the technological development, such as for example the Advent of the Internet or even of the increase in the remote services. And it is under the terms of this increasing importance of the services, especially in what the supply of the services by the means of a commercial presence relates to which characterizes a type of foreign investment, that one checks the fundamental role that an agreement of the range of the GATS plays at present. The GATS is a very important instrument of the new International Organization of the Trade and it represents a species of innovation in the field of the Economic International law. Contrary to the TRIMS which mouve in the middle of the trade of physical goods, the GATS relates to the sector of the goods known as invisible : the agreement of the services never explores a sea sailed before. Like known as for Square and Juillard24(*), « the intervention of the State in the field of the services - more accentuated generally than in that of the merchandizes - appears mainly by the establishment of standards - sometimes restrictive - concerning the conditions of competition or the methods of the access to the market. » One will not limit oneself here, has to study the totality of the instrument, in these various and rich nuances, but only to consider what it lays out concerning with the foreign investments- what, moreover, is not much. The inclusion of the subject of the investments is already checked in the article charged to define the field of application of the aforesaid Agreement, of which it extends to the supply from services for a supplier from origin from a Member State, by the means of a commercielle presence, in the territory of a Member State other than the tien, inclusive by the maintenance of an establishment or a subsidiary legal entity25(*). Thus, the GATS, by the means in a this specific way of provision of services, one of its four possible methods, is an obvious standard of international investment. The GATS to make include in its provisions, some concerning the notification, the transparency, the treatment of the most favoured nation, the treatment national, the access to the markets, the subsidies and of the same prohibition with restrictions on all exchange transactions as in the current transactions as in the transactions in capital. The object of the GATS includes, consequently, the realization of the successive meetings of negotiation, through which one would lead to the establishment of a mode gradually more liberal of exchange between the world economies : the cover of the question of the investments then, would be increasing and inexorable. One is, at present, vis-a-vis a treaty complex and having a considerable proportion of standards which are supposed to bind its normative capacity, constraining, with a posterior consensus. Divided into four parts, plusierus appendices and schedule of concessions national, importance of GATS relating to topic of investments finds in Part III, which contains the provisions relating to the access to the market and the national treatment, which are not contained like general obligations, but as of specific engagements which could be included in the national provisions. Thus, in spite of paramount for the treatment of the foreign capital in the sector of the services, the GATS cannot be regarded yet as a unit ready and finished standards, but rather a space for negotiations, tou by complying with rules that it same have a tendence to evolve/move in time. Nevertheless, it is essential it should be noted that, in what relates to the financial services, the maritime transport and telecommunications, well even air transports, these matters are regulated by normative texts and groups of negotiation specific, which gives a very special dimension to the GATS. Then, it is suitable to study the dispositives ones separately included by the GATS, by giving a special emphase to the access to the markets and the national treatment. First of all, the treatment of the most favoured nation which finds its regulation in article II of the ATS and which is, in theory, identical to the treatment of the most favoured nation of GATT : notwithstanding, within the GATS, it is subjected to several exceptions, limitations and conditions in what the access to the market and the national treatment relates to. In practice, while being the access rule to the markets depending on a multilateral concession and, while being specific by sector and sub-sector- and by for country ! - the principle finds an application extremely diffuse in the phase initiel of the GATS : it is only after the increase in the goals and the range of the national lists that the treatment of the most favoured nation eput to be regarded as having a substantial application. Moreover, one specific provision aims at in the case of guaranteeing the exemption of the obligations of the treatment of the most favoured nation the structures of integration regional, such being the case of Mercosur. In what the transparency relates to, are not only the national standards of regulation of the services which have the obligation to devemir public and notified with the World Organization of the Trade, but also all the administrative practices of a certain frequency ; notwithstanding, to the publication all information is also subjected substantivize on the sectors of services, however some are subjected to specific standards of secrecy26(*). Article VI of the GATS lays out that, once ensured the access to the markets, by the means of inclusion in the national list- system known as of the lists « positive » - each service will be subjected to the application of the national standards in a reasonable, objective and impartielle way. It remains thus assured the Right which has all the States to regulate the provision of services in the whole of its territory, as soon as it is off checks the adoption of the application of the principle of due the process law and the judicielle revision of the administrative acts, while making a reserve with the constitutional réquisits and/or legal. In what the access to the markets relates to, more specifically, one can say that they is those the element characteristic of the GATS vis-a-vis the provisions of GATT : right of access to the markets27(*). The access to the markets is defined as being an instrument of policy by the means which the governments exert its power discritionnaire to impose regulations on the provision of services and the establishment of the suppliers of service in his territory. The automatic application of the equality the abroads, in the field of the services, and in particular with the services of investment, became impossible because of the nature extremely regulated of the national treatment which was applied within several sectors until now : the liberalization of the services which are regulated much, such as for example those of telecommunication, is seen like a translation of a desire to give up a certain degree of autonomy and flexibility in what relates to the macroeconomic policies and of development, particularly in the fields of control of exchange or the monetary policies. To conclude, once ensured the right of access- one repeats, by the means of a concession in a national list- the rule of the national treatment is applied : even this being, such treatment remains subjected to the limits and conditions, discriminatory or not-discriminatory, existing in the national list, with the observation to be able not to be established quantitative restrictions, for example, in what the number of uses or in extreme cases of the value of the foreign investment relates to28(*). Article XVII29(*) of the GATS reflects article III.4 of GATT which aims to ensure the services and the foreign investments in the sector of the services, a treatment not less favorable to that granted to the national of the host country in circumstances and identical conditions : within the GATS it could be applied the national treatment only on the assumptions where the access to the markets would be already guaranteed, which acts of a capacity discritionnaire of each Member State. What one observes as a characteristic of the GATS is the requirement of this equality- between the foreign investors and the nationals- either substantivizes- in concreto- and not formal, so that the application of the theoretically levelling legal standard does not lead to an inequality of treatment de facto. In another direction, the GATS is not opposed to an inequality treatment when the recipient is the foreigner30(*). * 1 The three other points discuss at the time of Singapore, while regarding the Investissements subject as one of them, were the Transparency, the Policy of Concurrance and the Facilitation of the Exchanges. * 2 Famous lawyers and professionals, like Profs. Victor Mosoti and Jeswald W. Salacuse, classifiquent this multilateral agreement of the investments of possible and probable. * 3 See WT/WGTI/W/111, available on the site of the World Organization of the Trade, « www.wto.org » * 4 See WT/WGTI/W/61, um communicated of the IMF to the Working group on the relations between the trade and the investment (free translation) * 5 In spite of the text of the Charter a whole of rules themselves did not contain on the topic of the investments, it encouraged the Members has to create a framework of rules having louse drank to promote the growth and the development of the investments, with notched joints of the bilateral agreements and of the same, multilateral : article 12 of the Charter of Havana encouraged the Members has « to conceive with the international investments that they considered acceptable, of opportunities reasonables (...) to the nationals of the other Member States and safety with the future investments and which existed already. » (free translation). For more information, to see BARRETO, Fernando, in OMC E Comércio Internacional. São Paulo. Ed.Aduaneiras, 2002, pg. 250. * 6 The cycle of Doha failed to have the same disastrous cycle closure of Cancún which took place two years later : India resisted with vehemence to accept the beginning of this negotiation of it, they have finally to yield in exchange to the prerogative to have right to take part of the studies and the negotiation itself, without having the duty to sign a possible agreement on the topic. * 7 Made EM, the European Union was prepared to negotiate only two parmis the four topics of Singapore : with the step that the transparency and the facilitation of the exchanges would appear between the negotiated topics, the policy of concurrance and the investments would be left on side. For more information, to see the www.bbcbrasil.com site, the article of BENEVIDES, Cassuça gone back to September 15, 2003. * 8 For a more deepened vision, to see JUILLARD, Patrick : The agreement to the measures concerning the investment and related to the trade, in « The world reorganization of the exchanges (legal problems) », Paris : Pedone, 1996, pg.117. * 9 It is done necessary to explain the significance and the range of the term « obligations of result » or « performance requirements » : some countries require, like indispensable condition for the admission of the investor étangers in their territory, the obligation to carry out some objectify commercial precis and definite (such as for example the destination with the export of a given quotient of their production or even the obligation of technology transfer), having for goal to raise, or at least to ensure, the industrial production interns and well even to accelerate the economic lawsuit of development which is final ambition of the attarction of the direct foreign investments. * 10 Id. 8. * 11 For more, to see SQUARE, Domenica and JUILLARD, Patrick, in « Economic international law », Paris : Dalloz, 2003, pg. 146-7. * 12 Id. 11, pg. 148-9. * 13 See RAINELLI, Mr. in «A Organização Mundial C Comércio», Lisbon: Terramar, 1996. * 14 See Vera THORSTENSEN in «OMC- Organização Mundial C Comércio: ace will regras C comércio internacional E has nova rodada negociações multilaterais», p. 102. * 15 For um opinion more deepened, to see Domenica SQUARE and Patrick JUILLARD in « Economic international law » on the exception envisaged in article 6 of the Trims agreement : « the Member concerned can, throughout transitional period [until `at the date of entry into force of the agreement], to let remain [one] MIC [or Trims], with the proviso of extending the advantages which result from this with the other investors, being extended, however, that the productions in question must be similar and which the extension of this advantage must be necessary to avoid distorting the conditions of competition between the investor in question. But it is clear that spent the transitional period, the MIC [Trims] of which acts will have to be eliminated. » * 16 Id. 13 * 17 For the difference between the general principles of the Economic International law and them « standards » of treatment, to see Patrick JUILLARD in the article « Exist there general principles of Right Intrenational Economique ? ». * 18 See the report/ratio of Special Goup in the business « Indonesia- cars », paras. 14.88 to 14.91, available on the site of OMC of which address Internet www.wto.org. * 19 Until January 12, 2004. * 20 According to the writing of article 4 of the Trims, «the Members who are qualified as being developing countries must be free to derogate temporarily from the provisions of article 2 in measurement and the manner envisaged by article XVIII of GATT 1994, the Memorandum of agreement concerning the provisions of the General Agreement on Tariffs and Trade of 1994 relating to the balance-of-payments, and the Declaration of 1979 relating to commercial measurements catches has ends of balance-of-payments, which would make it possible to the Members to derogate from the provisions of articles III and XI of GATT 1994. » * 21 Id. 11. pg. 261. * 22 Id. * 23 For more information, to see article published on May 12, 2004 by Francine QUENTIN in Internet site of RadioFrance Internationale, of which the address : www.rfi.fr. * 24 See Domenica Square and Patrick Juillard, op.cit. * 25 Articles I (2) (c) and 28 of the GATS (or AGCS). * 26 The IIIbis article of the GATS : « No provision of this agreement will oblige a Member to reveal confidential information whose disclosure would make obstacle with the application of the laws or would be in a another contrary way to the public interest, or would carry damage to the legitimate commercial interests of public or private companies. » * 27 The access to the markets is regulated in art. XVI of the GATS which lays out : « With regard to the access to the markets according to the modes of supply identified with the article first, each Member will grant the services and to suppliers services of any other Member a treatment which will be less favorable than that which is envisaged pursuant to the procedures, limitations and conditions agreed and specified in its List » * 28 Article XVI.2 of the GATS lays out that «In the sectors where engagements as regards access to the markets will be contracted, measurements which a Member will not maintain, nor will not adopt, which it either with the level of a regional subdivision or the level of the unit of its territory, unless it is not specified differently in his List, are defined as follows: has) limitations concerning the number of suppliers of services, that it is in the form of numerical quotas, of monopolies, exclusive suppliers of services or requirement of an examination of the economic needs; b) limitations concerning the total value of the transactions or asset in connection with the services, in the form of numerical quotas or of the requirement of an examination of the economic needs; c) limitations concerning the total number of housekeeping operations or the total quantity of produced services, expressed in given digital units, in the form of quotas or of the requirement of an examination of the economic needs; D) limitations concerning the total number physical people who can be employed in a particular sector of services, or that a supplier of services can employ and which are necessary for the supply of a specific service, and are occupied some directly, in the form of numerical quotas or of the requirement of an examination of the economic needs; E) measurements which restrict or prescribe specific types of legal entity or joint venture by the intermediary of which a supplier of services can provide a service; and F) limitations concerning the participation of foreign capital, expressed in the form of a maximum limit expressed as a percentage of the detention of actions by foreigners, or concerning the total value of particular foreign investments or of the total foreign investments.
* 29 Article XVII : « In the sectors registered in his List, and taking into account the conditions and restrictions which are indicated there, each Member will grant the services and to suppliers services of any other Member, with regard to all measurements affecting the supply of services, a treatment not less favorable than that which it grants to his own similar services and its own suppliers of similar services. » * 30 « A treatment formally identical or formally different will be regarded as being less favorable if it modifies the conditions of competition in favor of the services or suppliers of services of the Member compared to the similar services or the similar suppliers of services of any other Member. » |
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