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 ......................................................................................................................... 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.

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 Singapore^1(*). 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 investments^2(*) : 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 invested^3(*). 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 economy^4(*). » 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 investments^6(*). 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 negotiated^7(*), 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 1973^8(*) », 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 result^9(*) : 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 Canada^10(*).

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 goods^11(*), 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 GATT^12(*). 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 Trims^13(*), 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 prohibited^14(*) 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 standards^15(*).

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 proteccionism^16(*).

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) principle^17(*) 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 businesses^19(*) 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-payments^20(*).

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 capital^21(*). »

A free international economy is, therefore, founded on the market^22(*). 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 Juillard^24(*), « 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 entity^25(*). 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 secrecy^26(*).

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 markets^27(*). 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 to^28(*).

Article XVII^29(*) 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 foreigner^30(*).

IN WHAT RELATES TO THE PROBLEMS RELATING TO THE BALANCE OF PAYMENTS, THE ARTICLE XII OF THE AGCS AUTHORIZES A MEMBER TO ADOPT OR MAINTAIN RESTRICTIONS ON THE PAYMENTS OR TRANSFERS FOR THE TRANSACTIONS RELATED TO HIS ENGAGEMENTS «IF ITS BALANCE OF PAYMENTS AND ITS EXTERNAL FINANCIAL STANDING POSE OR THREATEN TO RAISE SERIOUS DIFFICULTIES». THE AGCS ALSO TAKES ACCOUNT OF THE NEED FOR THE MEMBERS IN THE PROCESS OF ECONOMIC DEVELOPMENT AND THE ECONOMIES OF TRANSITION TO MAINTAIN A LEVEL OF FINANCIAL RESERVES SUFFICIENT FOR PURPOSES OF THE EXECUTION OF PROGRAMS OF DEVELOPMENT ÉCONOMIQUE.II. THE IMPORTANT PREMISE OF THE QUESTIONS RELATED TO A POLICY OF NON-DISCRIMINATION SETTING-IN-WORK IN THE AGREEMENTS OF OMC.

One could check beforehand that the agreements responsible for the regulation for the foreign investments in the Organization for the Trade, being among those the most important Trims (or agreements MIC) and the GATS (known by its initial Frenchwomen like the AGCS), comprise within the general framework of its provisions, the obligations under whom owe the host countries of the foreign investments Membres of the aforesaid the Institution, which relate to the principles of the national treatment (TN) E of most favoured nation (NPF)- this last principle existing only in agreement GATS, the Trims referring only to the national treatment and the interdition of the restriction quantitative.

Supra quoted the principles- national treatment and treatment of the most favoured nation- are measurements that, applied to the topic of the foreign investments, guarantee the adoption of a treatment more advantageous and favourable with the national investors of a country other than that of reception, while ensuring them a condition by which it will not be able to receive a treatment lower^31(*) than this intended treatment has other investors foreign and nor with national investors and producing- being able, inclusive, even higher being of the times. These principles are elements which make a policy of non-discrimination of the foreign investors, being this policy, like one already saw, adopted within the general framework of the agreements above mentioned- the Trims and the GATS- of OMC well even of the general framework of some bilateral treaties and regional fomenters of investment.

The existence even of these policies of non-discrimination incorporated in the general framework- even if they are to do it in a scattered way- of OMC is explained and supported due A in different the manners as the foreign investments are seen, either by the countries developed- in particular the exporters of capital- or by the developing countries- those, in its turn, in particular the importers of capital.

The developed countries are, unquestionably, the most important actors of the transborder investissemnts, the famous foreign direct investments (IED)^32(*). It is well known, however, that this type of specific international investment, fundamentalement corroborates with the development of the countries known as of the South of which, in its great majority, the economy was evolved/moved in way tardife and unbalanced and in which the reserves of foreign capital are put has to fluctuate of globalized perfidious own way subjected to the nuances of the world market. But to believe that the implementation of these Direct Foreign Investments of the part of developed countries would have a connotation and a character of indulgence and bénévollence would be ingenuous and naive an error : those, by the means of the argumentation of the theory of « the advantage comparative », according to which one supposes that all the countries, same those under development and who exert a minor influence in the world sphere economic if inserted within a framework where there were equal conditions of concurrance- a level playing field -, would be suitable for channel the benefit towards its economic sectors stronger and self-sufficing, which contribuirait with its progress : in other words, the comparative theory of the advantage dispode that the suppression of all discriminatory measurements would tend to profit all the concerning parts^33(*), seeks in truth, of justifying plus incisors and convincing so that they can apply more and more the not-discriminatory policies in the international agreements to the investments. The true goal, gift, of the developed countries, dissimulated under the sail of the arguments dissimulators, it is research continues of a policy of maximization are profits mixes has a minimization of the expenditure : that wants to say that the investor, instead of thinking itself that its spirit bénévolent brought to him has to practice investments in the host country, will try to enjoy the broadest possible quantity the profits and financial incomes which can be completed while transferring a negligible quantity from its technologies and while spending a tiny quantity of capital. On this subject, is largely known, for example, that the great multinational corporations are shown more and more staggering to create subsidiary companies outside if with these same subsidiary companies did not configure itself not ensured of the aspects relating to the safety of its rights of ownership intellectual and also if is not possible to operate in an environment which allowed a minimal transférence of its technical and scinetific training towards the host country or its nationals, what is those last represented by individuals or corporations, people physical or people morals^34(*).

Differently at the position adopted by developed countries they are located ls developing country ; those seek has to adopt policies which incite the entry ds investissemnts foreign direct in their territory, as being an element fomenter of their progress and economic and social development. If on a side the developed countries require that have its investors and, consequently, has its investments is granted a policy of non-discrimination- expressé by the means of the national treatment and the most favoured nation- under the protection of which one can observe a minimal transférence of his technologies and a diffusion insignificante of his technical training, other side, the developing countries, the host countries, claim- and by being right- a major benefit of uoic is the investment that they admit and authorize in his territory, by aiming its priorities of development.

The World Organization of the Trade laid out already, through studies realized within Group de Travail on the Trade and the Investments, « that to be a flow of capital beyond, the key aspect of the direct foreign investissemnts is that it is the representation of the capitalization of technology, knowledge, the abilities and other resources which belong to the whole of the potential of the multinational corporations^35(*). » This analysis of Group de Travail is useful only so that one can identify even more the importance of the direct foreign investments for the developing countries : if these same direct foreign investments are capitalization, it ets-with-statement, the corporification of the methods of the multinational corporations, the attraction of these IED for the developing countries would allow a direct contact with this whole of the resources of the foreign corporations, which forcing will imply a procedural change and a consequent progress- though it is economic, social, legal or environmental.

Nevertheless, the question of the développemnt and internal progress is not completely only concern for the developing countries in what relates to the direct foreign investments : there is also a point which causes much care and which relates to « right to regulate ». It is known that, under the terms of being inserted in ones legal-economic situation of remarkable instability, to the developing countries are granted some special prerogatives in sectors already having force of rule, such being the case of the international trade of the goods, the international trade of the services, the agreements which lay out on the property intellectual and, well even, the agreements which lay out specifically on the investments, in particular the Trims : one of these prerogatives is named « right to regulate », that is nothing more than the freedom, the faculty of which possédént developing countries to adopt regulations and standards extraoridinaires while aiming to counterbalance constraining engagements which can, possibly, to impose them a bilateral or regional treaty of investment or even within the general framework of a future multilateral agreement on A matter. But, as one could expect well besides, this question does not enjoy at all an undeniable nature within the international relations between the countries and goes in the same way in the opposition, mainly, with the question of the sovereignty of the countries- here, again, in particular of those developing country. Had its vast character has and nevertheless controversy, the point of law to regulate will be treated in a teaching way further, when the qustion of sovereignty applied to the detriment of the international interests is taken again.

And it is especially because of that, to be in a position economically unfavourable, that the developing countries must pay much attention and to subject all and some is the proposal for an imposition of a multilateral agreement on the investments has an effective and meticulous analysis, so that its needs for attracting the direct foreign investments more does not bring them within a chaotic framework of acceptance of one « together » of standards containing, for example, a total application and without any restriction of the principle of the non-discrimination and so that they can, in this manner, to discuss the possibility of applying intrinsic prerogatives has its sovereignty by the means of the selection of measurements of control of the investments to the detriment of the aforesaid principle.

The principle of the non-discrimination is supposed to have a fundamental role in the development of the international agreements on the trade and the investments. Therefore, on this principle the lawsuit of world economic integration is naturally based, once, having like base the non-discrimination, the countries which arrive have to ratify these agreements will be able to feel surrounded by a major safety because they will have safety to be treated in a similar way, not being more the object of some is the distintion come from its nationalities^36(*).

Nevertheless, it is necessary to pay a special attention in what relates to the adoption of the aforesaid principle of the non-discrimination as being it « hard core » of the composition of the bilateral agreements and regional into force at present : this pricipe is much more interesting- and why not say that it is interesting only- in the developed countries, to the countries known as of North. The Advent of the companies and transnational corporations multi and and its research inherent and ceaseless for the allied maximization of the profits to the minimization of its expenditure, always contributed to decrease and to restrict the beneficial dissemination of its technological knowledge and know-how- know-how- due has only one and simple reason : these same transnational corporations are supposed to allow the installation of its subsidiary companies and/or branches in the territory of the host countries if observed the invaluable conditions to maintain its innovations technological out of the range of the national esntreprises and deb. to remain only the person in charge for control for its technologies more developed in particular, not letting them be diffused, which would contribute to create of the equal conditions of concurrance in a competitive market and that with the national companies of the countries other than that of reception the advantage would deny that they must have had if its requirements were achieved, realized and entirely respected^37(*). However, is largely known that the inclusion of equal conditions of concurrance in a capitalist market brings only benefit- of course, if this inclusion obeys a whole whole of regulations, which can be disfigured by the considerable increase in the importance of the Right of Concurrance, as much within the national laws that international law. By leaving the free field for setting-in-plce concurrance, especially in what relates to the admission and the entry of the multinational corporations in the market of the developing countries, all the parts will be gagneuses parts : gain the host countries, once founded, established a honest concurrance, its industrial production will be victim of a boom, which will contribute obviously for the economic development- not being, nevertheless, completely the only condition so that there can be a bearable development, while being done necessary to be combined with this one other factors like those of a political nature, economic and legal, of which more deepened analysis, not being have the suje this work, will not be made by it - ; gain the bureaucrats, the owners and leaders of the companies and industries nationals, once, following the transférence of the secrecies and technological innovations of the big international corporations, well even of its know-how application of these same techniques of market and its consequent integration practices to current and usual national activities, these same bureaucrats will obtain a major competitive capacity, having thus the occasion to face the entry of new actors in the competitive market and being able, in this way, to work and fight not to be not « swallowed », while seeking a manner of coexistence ; also the individuals, parts of the company gain, the ultimate consumers, because being the market dictated by the laws of the concurrance, the economic laws of offered and the request will also dictate the rules of consumption what will lead to the setting of provision of the products at a price more accessible and equipped with a better quality- here it is necessary a small observation making an attempt for the need for an adequate regulation of the competitive market so that one can succeed has these results idéelles and, a contrario sensu, one does not succeed has to observe with deviations of the equal footing which would be put possibly places, like the formation of the commercial carteles or of an establishment fixed prixs - ; and, lately, also the large international corporativists gain, the atros and the leaders of the transnational corporations, once, to be already well prepared beyond to explore and answer at the request of the internal market of third countries and so prepared the usufruct of extremely cheap labor normally existente in the developing countries, said importing has to have of capital, while allowing the concurrance and while sharing his innovating techniques and practic knowledge in exchange of the exploitation mercantilist of the markets of the developing countries, they will have been put in equal footing with industries and national companies, all are making an effort, like that, has to increase the standards of quality of its products.

After this breve introduction laying out on the vehement divergences between the developed countries and the developing countries, it is suitable maintaining to speak on the principle about the non-discrimination specifically, in what these legal characteristics E relates to, of course, its appliaction with the practical life.

Principal the ambition of supra quoted the principle is that to trace the way for which the responsible policies gouvernamentales to control the international commercial^38(*) transactions are applied without it being taken into account neither the origin of this same transaction nor its final destination. Known as of another form, that means that the policies gouvernamentales must be applied in favor bein-being to it world trade- obviously, strictly observed and respected the internal needs for the responsible countries to accommodate the investments- indepéndemment origin of the goods or services- or within the framework of a possible multilateral agreement, investments- or even of the nationality of the suppliers of the maltreatment or investors international to which these services refer^39(*). However, it is not a complicated task of y inférer that this principle adopts the concept of an equal treatment has all the parts concerning inserted within a framework of a whole of common conventional standards. And this equal treatment. Extended until the identical direction of treatment can, for times, to be impracticable and/or inapplicable and not to lead not to the desired result : as opposed to what one can think, the principle of the non-discrimination, the way as it is currently regulated within the various agreements and bilateral and regional treaties of investment, goes completely against the effective equality to the conditions and possibilities of a Juste concurrance, being- however- full and abundantly favorable to the developed and certainly unjust, or to be useful itself of a more diplomatic word, incoherent countries in spite of the developing countries.

The same idea expressé by other words : in one market economy, the total tendence is that to believe that the fact of carrying out commercial transactions in the light of a policy of competition between the companies concernentes- is the main roads and the multinationals -, indépendemment of its origin or its final destination, which wants to say without any adoption of discriminatory practices- to allow better and more efficient a resource sharing concerned among all the parts interess' S. Of this way, host countries and the other concernentes parts- trade partners, though they are national or international- had profited from the comparative advantages that the competing system can proportion. It is licit to conclude, ex positis, that to give a favorable condition one of the trade partners has into special to the detriment of the others for discriminatory reasons of characteristics- like, for example, because of nationality- does not add any systematic advantage in what relates to the economic situation interns of the country in analysis.

Group de Travail on the Trade and the Investments existing at the SEN of OMC, in its document WT/WGTI/W/118, adopts a contrary position with that chisi by developing countries and lays out on some advantages and benefit which could be obtained from the practice of this principle of non-discrimination, these studies being based and being fondamentés on the practice of the aforesaid principle adopted within the various agreements and biláteraux and regional treaties on the investments- it is suitable to remember that the general framework relating to international transactions of the investments is determined by the bilateral and regional treaties famous frequently between the developed countries and the developing countries, all in consolidating however a relation of flow of NORTH-SOUTH investment^40(*). Notwithstanding these formulations that one will vera will infra, the aforementioned document of analysis lodges with Group de Travail of OMC for topics related to the trade and with the investments also the question of competition inside the host countries treat, but it does it in a way where which the importing countries of investments would be put in a situation of total and complete discredit, not having, therefore, no means to compétir in equal footing with the foreign investors, which would finish to consolidate its subjected state of development ; however, not being nevertheless the central subject of this work, the factors that one carried out Group de Travail has to adopt such position relating to the rights of concurrance related to the principle of the non-discrimination on the detriment of the major interests of the developing countries will not make object of discussion.

While giving sequence, Group de Travail evaluated some benefit of the adoption of not-discriminatory measurements as having started from a general framework of a multilateral agreement of the investments. According to the study, the principle of the non-discrimination has one « multiplier effect », once it gives the possibility to the access to the markets of the receiving país of investment to all the trade partners of a certain country and also causes a diffusion of the benefit and advantages of the liberalization of trade : but, this being, that worm the day only on the assumption of a suppression of the commercial or, at least, softened restrictions^41(*).

The premy not of the study quoted support that, once instituted the trade agreement- though it is bilateral, as is the reality of the relations contemporary, or multilateral, quiest-it-that seems inevitable - being unified^42(*) and being based on rules as the non-discrimination would have como corollary an increase in the certainty to be able to profit entirely from the advantages that would run out of this agreement, well even sincere and considerable increase in legal safety for the part concerning, while giving a special emphase to parts- lira, countries- which have a weak and transitory influence commercial and political, even insignificante.

Then, work approaches the economic effects, in the most common meaning of the term, caused by the application of the aforesaid principle. According to the document, the taxes of transacion and administration- as for example the customs taxes- would be object of a reduction and moreover, could succeed currently has a diminution of the existing bureaucracie by the means of one « saving in rules », under the terms of measurements which could be also applied to toutres the commercial transactions, instead of being made in function of their last origin or their final- destination those, discriminatory measurements.

The third point of the proposals of the Special Group lays out on safety and the certainty which the principle of the non-discrimination would inspire : not being, the commercial transactions, the object of discrimination under the terms of its origin or even of its final destination, the private sector enjoyed a major safety which would be translated in a great transparency, an increasing stability and a foreseeability worthy of confidence of the policies gouvernamentales of the host countries and, like consequence, would cause a reduction in the risks specific to the commercial activities, especially in what that relates to which gives rise to transborder investments.

The last point approached by the Working group tackles an aspect psicologic of the international investors : according to the aforementioned group, those this would have a tendency has to be smelled more at ease and would have a stronger feeling of safety if there existed, like part essence of the International Duty, the principle da non-discrimination, especially if in one posterior moment this principle built-in and would be ratified by the various national laws of the countries concernents, while supporting that that would give a major guarantee once from now on the principle does not pourrerait to be modified by the means of a unilateral measurement.

While following the ideas introduce into the former paragraph, it is made also important mention some considerations relating to insertion within the framework of the International law of the rules relating to the principle of the non-discrimination which touch the direct foreign investments. A whole of standards and international rules would subjugate the national standards of the host countries relating to the topic. However, once the concerning parts are the foreign investor of a part and the government and the nationals of the host country of the other part, there is nothing more elementary which can be concludes : the legal whole of standards which will be to regulate the partnership between the States and the foreign investor- or even between States- must belong to the general framework of legal rules of the International Duty. Moreover, a question arose : but which attitude should be taken vis-a-vis the standards and rules already existentes and in force within the framework of the National law of the countries concernents ? All ls structure institutional servant relating to the principle of the non-discrimination should be affected by the introduction of the new international rules on the investment : under the terms of all that, it is done extremely necessary that the whole of the rules and occurring international standards, which finisseraient to put the investor international in equal footing with the States, is adopted while taking account the interests and the standards already setting-in-place in the national laws, so that this whole of supranational standards touches way incisor and upsetting only the economic sector, by thus saving the structure already low and required developing countries.

Nevertheless, it is true that there are countries among the countries known as of the South which have a level of major development that others^43(*). And, obviously, there are some countries of the South which are institucionnel and juridically évoulés than of the others : the challenge, bearing, in the occasion of implementation of a general framework of a possible multilateral agreement on the investment is that to foment the development in a total, unanimous and universal way among all the countries, observed the shift between the countries of North and the countries of the South, and well even between the developing countries less and more developed, not being able to be classified in the same type of category having the same treatment of the countries like Mali and Brazil or Haiti and China.

Then, as it was known as at the beginning of this section of this work, the principle of the non-discrimination, the manner as it is put-in-place in the sets of the legal rules conventinneles current- i.e., the agreements and bilateral and regional treaties- and also within the agreements which touch the investments existing in OMC, is imposed by the principles international of the national treatment and the treatment of the most favoured nation. Henceforth, one proposes has to analyze the application and the operation of these principles within the agreements, treaties and International Conventions already existaents and in force, while studying the need- or not - for his inclusion within the general framework of a multilateral agreement on investments.

But before returning specifically in the study of the nuances and vicissitudes of the national treatment and the treatment of the most favoured nation, it is being advisable to speak in a short way on the exceptions which the governments of some countries provide relating to the application of the principle of the non-discrimination in some of these agreements relating to the investment already existing.

The governments of the countries which accommodate the investments seek without stop to adopt policies which encourage and attract the entry of the direct foreign investments, having for goal to help the host countries has to develop ; however, as it was known as before, entry with investors foreign in territory with country importing their investments, if it is made in a way in which the non-discrimination is the key word- this method was suggested Pr the developed countries and which, according to them, would cover the comparative theory of the advantage -, would make impossible to the governments and the nationals of those last to benefit from benefit caused by the direct foreign investments : it is that the parlaquelle reason the inclusion of the principle of the non-discrimination needs to be associated A a certain flexibility to be able to carry out some needs for the developing countries as regards national policy of development - as for example the protection of the national producers- or to even wait has other objectives of public interest which cannot be obtained in another manner until by discriminating foreign investors. And is because of all that which was exposed that, in spite of the advantages which could be obtained through total application of the principle of the non-discrimination- these advantages, obviously, could be obtained by are developed countries -, all the agreements and existing at present, bilateral and regional treaties, envisage exceptions, resctrictions, exemptions and/or limitations with the rule of the non-discrimination.

Systemic departures from^44(*) the rule of the non-discrimination are named those which eliminate, remove field of mow activities, services and sectors particular in a complete and whole way the aforementioned principle. As example, the GATS- or AGCS, general agreement on the trade of the services -, all the services bought having for goal its respective use in the public sector sound derogated of the obligation of brackets precetes of the national treatment and the most favoured nation which are regulated and ordered in agreement and, always within the GATS, the subsidies- obviously that belonging to « green box », i.e., that does not cause restrictions on the world trade- offered in an exclusive way to the national producers are not the subject of the application of the national treatment, which wants to say, an extension of these same subsidies the abroads. A possible multilateral agreement must contain among its provisions, some similar and relative, for example, with the taxation (customs duties), the access to walk in what relates to of the specific sectors of production (like telecommunications or defense) or some concerning other measurements like the subsidies.

Its named exception general^45(*) those according to lasquelles parts' that one received a due authorization to practice them, can practice them in a repetitive way, under the reserve to meet certain specific conditions. Its in number of two the general categories which can be caused as GATT and also as the GATS and of the international agreements- bilateral and regional- on the investments : first of them, includes the exceptions according to which is licit a given government to adopt measures and rules that normally will be able to go against the not-discriminatory rules in the name of the safeguarding and public defense of the interest, as in the sectors which relate to national safety, protection of the public health, public morals, the maintenance of law and order public or in fields like environmental protection ; the second category of exceptions understands which lay out on the possibility of giving a special permission to the countries which belong to the regional agreements- such being the case of Brazil, of Argentina, of Uruguay and of Paraguay which form Mercosur- to concede a treatment more has its regional partners that with the other countries of the sphere which do not form part of the agreement.

There are also the exceptions by country, existing in certain agreements, like the GATS and large the part of the bilateral agreement on the investment- except here for GATT -, which allow the concernents parts to establish of the conditions of departures from the rule of the non-discrimination to precise countries in the determined sectors of production, them, from now on, not being obliged to adopt the principle of the national treatment. This true panoply of Exceptions by country plays a part of great importance in what concernet the very delicate subject of the international investments because it gives to the countries concernets the occasion of put-in-place a minimal flexibility so that they can channel its efforts towards its political and economic questions relating to progress and the internal development. As giving an example its importance, one can quote sectors- those being sectors which would be used as a basis to support the economic policies of a country- which would be profited by this flexibility, such being the case of the sector of education, the employment and the environmental protection, questions which are at the top of the hierarchical pyramid of concerns of the governments of the developing countries. The exceptions by country can be adopted in the form of exceptions to a general rule or in the form of engagements ralatifs to a specific rule.

If the exceptions would be adopted vis-a-vis a general rule, each country it has is licit to establish its characteristic « negative list » - differently called system of the signal down- of exemptions, where it would be expressly indicated the sectors of production or measurements has to be adopted for the governments to which the principle of the non-discrimination will not be applied. It is important to curl which this method of exemption E frequently used in the various agreements and treaties bilateral celebrated between States. In the second case, where the principle could be applied in a more specific way, with the various countries will be licit to establish and register in one « positive list » - contrary to the first, this system is named bottom up- where would be expressly the sectors of production and measurements of which there will be the application of the non-discrimination, all other sectors being free of this one. This method, maintaining of inclusion, is adopted by the GATS for « to draw up the lists of engagement as regards access to the markets and obligations relating to the national treatment », well even specification of the conditions and restrictions relevant on its field of application^46(*).

Some countries, especially those under development, divide opinion that the method of the inclusion- of mow positive lists- would be most subtle and light among both- compared to it of mow negative lists -, to allow the protection of the more significant sectors ls of its economies against the free one and unjust competition of the capitalist robustness prédatoire of the foreign investors and that would give them the capacity of, in spite of it determines that some of its policies must obligatorily obey the precetes of the principle of the non-discrimination, notwithstanding they could adopt some discriminatory measures in sectors other than those included/understood in the positive list. But this freedom of adoption of discriminatory measurements is not at all free restrictions : the countries are compromised to remove them gradually, as far as possible, to contribute for a major liberalization of the investments total.

Lately, it there exception specific also envisaged in most of the agreements which lay out on investments^47(*). Cettes exceptions go against the principle of the non-discrimination in favor of the concernents parts : in short, they are exceptions of character termporaire and represent also a species of exemption from the principle supra quoted, but under the condition of approval of the other parts concernents of the aforesaid international agreement on the investments.

2. A multilateral framework of the foreign investments, the role of OMC and interests of the developing countries.

In this second part of this work, one proposes to make a thorough analysis of the role of OMC concerning this thorny question of the international investments inserted within a multilateral framework. A first under-part will be devoted to the study of the relationship between the souveraneity of the developing countries and the application of the not-discriminatory principles of the national treatment and the treatment of the most favoured nation (I) and in a second one will study the effects of these international investments, in particular the direct foreign investments, in the balance of payments of the host countries (II).

I. the sovereignty of the developing countries to the detriment of a vast application of the principles non-discrimatoires.

The principle of the non-discrimination existing in the international agreements and treaties on the investment is translated in two principles which, in spite of lay out both on discriminations relating to nationality and the need for equal treatment, are different in its nature because the first stipulates the interdition of the different treatments between the foreigners and the nationals and the second prescribes the inderdition of difference in treatment compared to the foreigners of various nationalities : it is of the principles of national treatment (TN) and about most favoured nation (NPF), respectively.

These two principles are designs of treatment which must be provided compared to the foreign investors and have his origin of the sectors of trade of goods and services- respectively, GATT and the GATS, which induce the application of the national treatment among its members and extend the range of the treatment of the most favoured nation in a nonrestrictive way, nevertheless while observing the occasion where an exemption could be adopted^48(*). Roughly speaking, the national treatment wants to say that the foreign investors cannot be subjected^49(*), of the part of the national governments, has a treatment less favorable than this granted has its nationals : the international and national investors could, in this way, in the same level, being supposed being be also treated. The UNCTAD- United Nations Conference one Trade and Development, is the United Nations Conference on Trade and Developme in French -, an institutional dismemberment of the United Nations to especially supervise and improve the conditions of development in the poor countries, defines the nation treatment as being « a principle under which a host country extends to the foreign investors a treatment which is at least as favorable as that to all its nationals, under equivalent conditions^50(*). » In what relates to with the treatment of the most favoured nation, this principle lays out that to the foreign investors does not have to be granted, by the host country, a treatment less favorable than that offered to a foreign investor of a country of origin other than that of the other foreign investor. The purpose of this rule of the most favoured nation is to establish equal conditions of concurrance- the level playing field- for all the investors, important nothing his country of origin or its nationality. It is done important as to realize as one of the conditions so that principle NPF is applied is the equal foreign investor salary under the conditions which they are in equal situations or circumstances. But that wants to say what exactly ? Which-is the range of the significance of « equal circumstances » ? One goes truver his answers immediately, at the time of a thorough analysis of the national treatment and bie even of the most favoured nation as being the precetes of application of the rule of the non-discrimination within the general framework of the agreements on the investment.

In two next under-parts, one will restrict oneself to analyze first of all the principle of the national treatment (A), while passing to a study of the principle traiement of the most favoured nation (B) ; then one more specifically tackles the possibility of implementing a multilateral framework of the investments (C), by giving sequence, one checks the questions which cause of the installation of the rights of sovereignty of the developing countries (D) and to conclude one will check the questions who remain around the choice of OMC like enclosure of a probable multilateral agreement of the investments (E).

A. The principle of the national treatment.

As already evoked, the national treatment recommends a total equality between the investors foreign and national, not being no discrimination allowed some is its nature- mainly in what the nationality of the investors relates to- with the host country. But it as should be said as if the importing country capital to completely grant this policy of adoption of all the rules concernentes to the non-discrimination, it will be able to sign a letter of commitment by the means which he will condemn his idustrie national A a perpetual underdevelopment. However, exceptions and exemptions must be granted.

Within the international agreements of investment, the national treatment was conceived to profit the investors but also the investments. These practices are due to the fact of the interest and the concern of the countries developed to protect its transnational, eager to settle in the territory of the countries that, at least in theory, the competitiveness of local industries would be weak and labor offered, extremely cheap, of the dissemination forced of its innovating techniques, which would involve the inexistance this advantage initial obtained by these multinational corporations under the terms of the technological disparity of development. The question of the national treatment applied to the investors but also to the investments réune the whole of a question of great delicacy in what the non-discrmination relates to applied to the agreements of investment : the polemic of the application of the aforesaid principle in the phase of the pre-establishment to the example of the phase of the post-establishment of the investments. This question causes an analysis more detailed and, under the terms of the organization and of the distribution of this work, it will be approached with the next segment where will be studied the question of the sovereignty of the host countries to the detriment of the range of the precetes of the rule of the non-discrimination.

Of return to the principle of the national treatment such as it is applied within the agreements and international treaties which are in force concerning the subject of the investments, is supposed being a principle necessary once it eliminates and removes all the harmful distortions of the market and as corollary the efficiency of the production increases, while observing, in this manner, a growth of the concurrance bus could be put in same a niveaus all the producers and investors. And as, as announced antérieurment, according to proposals' of the countries of North, no policy would be more efficient to succeed has a levelling of the producers and investors as the use of the rules of the principle of the non-discrimination^51(*). However, but it would be excessively naive to think that the national market of the host countries aimed by the transnational corporations and that, certainly, are désequlibrés and full with distortions, would be « levelled » by the simple implementation of the rules of the principle of the non-discrimination : it is done necessary to extend the premises already adopted in other sectors of the other international institutions which recommend that so that can think itself of completing the goal to carry out a level playing field for the foreign and national investors, it will be necessary to treat in an unequal way the unequal ones and not the reverse. Within OMC, for example, one notes the existence of exemptions and exceptions for developing countries, by authorizing them has to have the prerogative to have deadlines longer to eliminate from prohibited restrictive measurements^52(*) or some special tolerances^53(*). In other international organizations, as it is the case of the IMF or the attempt failed the FRIEND, the developing countries enjoy or were supposed to also enjoy the special exceptions and exemptions. However, like marked good, its prerogatives are nothing more than exceptions. Within a multilateral framework of the investments, especially in one which incorporates the methods of the direct international investments, the exception must pass has to be the rule : cettes exemptions and exceptions given to the developing countries should be the current practice for the aforementioned multilateral framework is dáccord with the justifying ones for its existence : the searching of the evolution and progress be developing country by the means of the invstissemnets and the injection of less favoured capital and technology to the country. A level playing field, therefore, will be completed only if to the developing countries the advisability is granted of really compétir : to eliminate the differences in insertion in the world market and to level the producers and investors properly would be to encourage the dissemination of technologies and know-how.

Other partisans of the application of national treatment as being one of the pillars of the not-discriminatory practices support that this principle, already being diffused and being propagated within the international agreements and treaties, must remain as started from a future multilateral framework of the investments, once its suppression would cause the Advent of an unfavourable climate for the flow of the international investments. Its elimination, then, would be supposed to work against the spirit of an economy globalized, harmonized and integrated. In fact, of which in the between-lines the primcipe proposes national treatment in the way in which it is adopted at present in the international agreements of investment is that domestic industries, that battrent themselves to develop and, in extreme cases, to remain, once gives assent to the transfer of the requirements of the countries which want the implementation of the national treatment to be able compéter with the national investors of these last countries, it had realized of asymmetries economic or political supposed, which would involve damages what the UNCTAD names of « degree of operational equality^54(*). »

So that can lead itself to the implementation of the national treatment- because ingenuity is not the rule of the present work and will not be possible to work on the possibility ideal and, why not say, oneiric, of a suppression and complete abolition of the principles of non-discrimination applied has intrenationaux agreements and treaties on the investments- within the framework of a probable agreement on a total scale on the topic, the key word must be flexibility : and this one must be analyzed and applied compared to the level of national treatment which will be given to the foreign investors. The importance of this subject can be measured due to the fact it of also touching directly another topic him of great sensitivity : that of the sovereignty of the host countries. To give up has its sovereignty is something that the governments, especially those of the developing countries, must avoid : and is in this aspect which must start to it the flexibility and the flexibility of the concerning négotiations inclusion of the national treatment in a acord mutilatéral. However, the subject of sovereignty against the non-discrimination, will be tackled then, more distinct and clearly.

The national treatment was already the object of the other multilateral agreements, having those an incidence in the sectors commercial or services, as is the case of GATT and the GATS respectively, and whose application should be used as a basis and base for the implementation of these principles of non-discrimination within the general framework of a future and possible- multilateral agreement ? - on the investments.

The national treatment is regulated, within GATT, in its article III which limits its range only to the trade of goods. Nevertheless, the provisions relating to the national treatment in various international agreements, regional or bilateral on the investments, have a tendency has to be different from those concernentes the goods : the nationals treatment applied to the investments lays out that the same conditions of competivity must be also allotted to the internal market of the host countries to the international investors as to the nationals, with the governments not remaining any capacity to adopt measures having an unfavourable incidence the abroads ; GATT, in this direction, determines as being of great importance the distinction between gouvernamentales measurements of border (like the customs taxes, for example) and measurements gouvernamentales interns (like the provision subsidies), but these same differences by showing low value in what relates to the collecting and regulation of the investments. Notwithstanding the application and the experiment of GATT can be used as a basis for the implementation of the national treatment in a possible agreement concerning the international investments : they do not have, cependent, being entirely used, because they are not in conformity with the required complexes of the investments.

However, the subject of flexibility can be already analyzed in agreements former that, in spite of did not have exclusively on the subject the investments, have exerts an enormous influence on the manner of treatment of those in determined countries, as is the case of the GATS. But the agreement on the service- a true innovation in the international legal field- is remarkable also for porposer a model of « progressive liberalization », which was the object of debates around the proposal and model inclusion of the aforesaid within an agreement on the investments. Article XVII of the General Agreement on the Trade of the Services^55(*) requires Member States which they are able to offer to the foreign suppliers service a treatment not less favorable than that offered has its nationals ; its application, however, being possible to be extended to other sectors desired by the Member State, in an increasing and gradual way. It is exactly that one the innovation offered by progressive liberalization. Article XVII of the GATS was a little further : in paragraph II, it comes has to define what could be a less favorable treatment, which, while transferring these definitions for the field from the investments, the pillar would build on which pourrerait to base the setting-in-place of the equal conditions of concurrance, once lacks it an expressive definition of the treatments more and/or less favorable and the consequent discretionnareity of the governments local to grant these same conditions to the investors is in the center of the causes of the difficulties of negotiation of a multilateral agreement on the investments : the provisions must be clear- but to say that they must be clear does not mean to encourage the injustices- and the fact of being established clear and definite concepts does not eliminate the need for existir a certain flexibility so that the local governments can put-in-work their policies, mainly the governments of the developing countries.

There are nevertheless some international agreements into force that do not adopt the national treatment : one of them is the Agreement of Associations of the Nations of Asian South-west for Portection and the Promotion of the Investments. China also, in qualques ones of the bilateral agreements of which it forms part^56(*), showed a certain reluctance to include the principle of the national treatment among its provisions. As already known as, there are international agreements which exclude from the field of the recipients the foreign investor, while limiting those to the investments only ; however more the share of the agreements also envisages the national treatment for the investissemnts that for the foreign investors : like example, chapter 11 of the ALENA (or NAFTA, according to its alglaise translation) or even article 3 of the agreement celebrates between Jamaica and the United Kingdom.

B. the principle of the treatment of the most favoured nation.

The direct foreign investments are this method of transborder investment in which an investor of a third country- normally a developed country, exporting of capital- will hold, parès its establishment, a considerable part of the capacity of management, in other words, control, of a company given localized in the territory of the host country- normally, a country in développemnt, importer of capital : it acts, therefore, of one long-term investment. The direct foreign investments include/understand the method of investment the most aimed by the developing countries, because it involves the admission of the international investors and the consequent contribution of its technoligies innovating and its knowledge techno-industrial more evolve/move by giving conditions for the local economic development from the dissemination and of the division of these technologies and knowledge. Nevertheless, the role of the investors is not at all that of the bénévolence : those, being capitalist producers, aim at the maximization of the profits, as is clean with the investments, allied with a minimization of the risks. The international investors fear the discriminatory policies of the host countries, which could makes them so that they could be, « supposablement », less competitive due to a character supporting of these policies compared to the national investors and producing. One could even say that one of the idiosyncrasies of the factor-risk of the investments remains there, in the singularity of the policies gouvernamentales of each host country : and this reduction in the risky character of the investments could be imposed through implementatios rules of non-discrimination, like supra quoted the principles of the nationatl treatment and the most favoured nation.

The treatment of the most favoured nation is that under the aegis of which to the foreign investors of a certain country would be licit to ask has a host country where it desired to establish its activities without he being treated in a way less favorable than investors of a third country other than that of which they are national ; in other words, the treatment of the most favoured nation prohibits some type of behavior towards a foreign investor that is not the same one not granted to other foreign investors already installed. This principle, so aims to establish a levelling, to fix equal conditions of concurrance for all the actor of the scene of the international investments.

An important observation which must be made relates to the fact of the treatment granted to the foreign investors must be the same one granted to the nationals of the host country. However this levelling treatment should be applied only at the time of the investors- foreign and national- present themselves in a situation or twin circumstance. Consequently, this condition would be seen like an element of soubpless and flexibility for a ays of reception eager to print a treatment differentiated the investors- or even categories of investment- under the condition from, as a practitioner these distinctions, his objetifs are right and the criterion of protetion used is equipped with equity.

The application of the rule of the most favoured nation inserted within a general framework of a multilateral agreement on the investments can have a range as vast as the Members wish it who ratify it : are in favor of an agreement of a vaster range, obviously, the developed countries that by the means of this complete application of the principle of the most favoured nation would be possible with them to see all the commercial activities which they left participating covered by the aforementioned principle ; to the foreign investors would be given, consequently, an enormous protection that garantisserait them, that would chengement safeguard them even in the event of chengement E nature or even of the range of the investment in a phase of post-establishment.

The principle of the most favoured nation is amply used within the international organiations, such is the case of OMC. In the heart of this organization, a treatment allotted by a government towards a country, its trade partner, so that this one becomes the most favoured nation, will have to extend automatically has all the other Member State of the World Organization of the Trade while following a not-discriminatory way. OMC includes in its legal order the principle of the most favoured nation in the article first of GATT^57(*) and the GATS in article II^58(*). And it is of these general agreements that one can collect some injure and definitions of the principle of the most favoured nation, principle that, beside the principle of the national treatment, shows itself like an indispensable condition imposed by the countries developed by the establishment of a multilateral agreement of the investments.

The first is the definition which GATT gives us of what could be an equal treatment : according to the general agreement, this equal treatment wants to say that all and some advantage, favor, privilege or immunity allotted has a country should be wide A all the other parts contracting, i.e., has all the other Member States. In the majority of the cases, that constitutes a solution practices once the rights of importation and the other incidental taxation of trade are only measurements adopted at the border- by recalling that that applies to the case of the trade of goods only- E these measurements can be expressed in the form of the terms « quantitative comparable^59(*). » In another direction, in what the GATS relates to, the treatment of the most favoured nation must be also granted to the service founi that to the supplier of the provided service : the principle extends, in this case, compared to GATT, of rations materiae with rations personae. It should be also recalled that the provisions of the GATS touches discriminations of also swears that discriminations de facto. Nevertheless, an omission, a gap was observed within agreement GATS : the similar definition of product, one of the requirements for the application of the principle of the most favoured nation- the investors could be treated in a similar way if the objects of the service of its services will be similar, if not they can be treated in a different way.

The last point has to be considered this that which says that within OMC, in particular in agreements GATT and GATS, the principle E the most favoured nation must be implemented in way unconditional : that wants to say that once granted a more favorable treatment a country has, this principle must be immediately extended to the others pys Membres, without for that being required some give-and-take n the other hand. Therefore, once decided a modification of the commercial treatment compared to a Member, the country concerned must extend it to all the others, not being important Pa the fact of these last had been or not partcipants négotiations for the reciprocal concessions commercialles^60(*).

Notwithstanding, nombreaux Bits- or according to the French translation, TBI, the treaties bilateral on the investments- have exceptions for the principle of the most favoured nation. And while speaking each other about the developing countries, these departures from the rule are done, the majority of the occasions, really necessary : starting from departures from the rule of the most favoured nation conceded, the countries from now on are authorized has to adopt discriminatory practices based on the nationality of the investor and/or the investment. The these exception following the example of devoted in articles XX of GATT and XIV and XIVbis of the GATS, several among these bilateral treaties were fondamentés on the need for being maintained the order public, the safeguarding of national safety, the environmental quality or even protection of the public health to justify such exceptions^61(*).

The polemic which field of application always remains around the suggestions to extend from the principle non-discrimatoire of the most favoured nation for the phase of the pre-establishment that for the phase of the pot-establishment, with the example of what is setting-in-place in what relates to the principle of the national treatment, can be ace checked there. This subject becomes another time the heart of the discussions when one compares the precetes rule of the most favoured nation in the field of the trade of goods- por consequence, within GATT- compared to the field of the international investments : in what the trade of visible goods relates to, the rule of the national treatment is a territoril measurement, which implies statement that it will be applied even before the entry of the good is authorized in the territory of the importing country. In the field of the investments- and fatally the treatment of the principle of the most favoured nation will continue like that within a probable multilateral agreement- the requisitions and the obligations that to a country to treat in the same manner the foreign investors and the national investors could be applied only at the time of the admission of the first in the territory of this country : it is the phase of the post-establishment. The range of the principle of the most favoured nation is, obviously, also the obet of powerful polemize : must it or not to be as applied in the phase of the pre-establishment as in the phase of the post-establishment ? Like known as before, the next section of this work will deal with the question of sovereignty of the host countries and its relationship with the foreign investments : and will there too be approached the complex and thorny question of the phases of pre and the post-establishment.

It is undeniable that a certain degree of flexibility and flexibility must be granted what is of high importance for the developing countries in what relates to the points relating to the total application of the principle of the most favoured nation : the economic character vulnerability of these countries limits the concession and the setting-in-place inconditionné such not-discriminatory principles.

C. a multilateral framework of the foreign investments (within OMC ?) while holding account interests of the developing countries.

The current economic world is inserted within an intrinsic framework of globalisation, of a propagated liberalism which dictates the rules and standards of the play whose countries are the principal joeurs : the ones plays the principal part while others are responsible only to play a subsidiary part. That being, this economic situation is changing : not in the contrary direction with the economic evolution, political and legal setting-in-place until now ; moreover, they is absurd and unreasonable to think that of a general framework of liberalism and globalisation the planet could reassign and live again an individualistic economic sphere, in which the countries will be supposed to want to complete the development by the means exclusive of its own resources.

The globalisation is a phenomenon that allows neither of the regrets nor of the retrocessions. It is about a permanent and evolutionary phenomenon, being always changing : and are these transformations which are responsible to cause the deep ones and sensitive changes in the countries which are included there, especially in what relates to them « weak links », developing countries, whose economy is all the more vulnerable and likely to be subjected to serious variations under the terms of the vicissitudes of the total market.

Several world economic sectors are apercevoient of the Advent of this phenomenon « globalisant » : the gradual liberalization of the trade of the aforementioned- goods visible and- of the same goods of the trade of services - the aforementioned invisible goods- both within OMC, in the field of GATT and the GATS respectively ; the attempt, in spite of failed, of the FRIEND, within OECD ; an incredible number of bilateral treaties contracted between countries which exceed already the threshold of 2000 legal instruments in the world ; and as of the regional agreements create within the markets of economic integration and between them^62(*) well even the weak existing multilateral négotiations as, in spite of défientes, deserve to be quoted^63(*). This increasing implementation institutional reflects, dana the least assumption, the permanent character of the globalisation and consequent the need and interest of the countries concernents- especially developed- to establish international standards for economic relations, y being included the investment, which will have been born from this phenomenon. One sees first of all, extremely and of solid representativeness, the example of OMC, which is charged to control the sectors commercial itself, but also of the other fields which have a direct or indirect incidence on this last- such is the case of the sectors of the services, of the investments which touch the trade anglobés in the TRIMs agreement or of the intellectual property, regulated by the TRIPs agreement.

Notwithstanding, one of the more important corollaries of the Advent of the globalisation and liberalizing capitalism, do not have a multilateral framework which regulates its matter- it does not even exist a single provision international that to put agreement the elements of its definition : it is the case of the investments, in particular the direct international investments. This method of investissemnt international is appreciated the most for the developing countries, while this one one of the benefit being proportioned by the globalisation : the exchange and the dissemination of technologies more advanced like a manner of impelling the development and the evolution economic, political, social and legal of the countries which would be, by definition, in a situation of major vulnerability. In spite of its remarkable importance, the direct foreign investments remain sole purpose of the agreements and bilateral treaties, those being contracted mainly between country of North and the South ; like consequence, the will and the requirements of the countries of North, more developed and exporters of capital, normally prevail on those of the countries of the South : as the direct foreign investments are a kind of extreme investment of importance for the developing countries, those are seen by times subjected to conditions imposed by the developed countries, even they not being right, impartielles and correct- for example, the renunciation of the sovereign right of a State to establish standards and conditions with the admission of the foreign investors or even the adoption of the requirements référentes to nonthe dissemination as of its innovating technologies- and authorizes the entry of the foreign investors that do not contribute, rear continuation, hardly has its development.

The foreign investments were the object of various attempts at regulation : some one failed, such is the case of the FRIEND, some remain incomplete and nonsatisfactory, such is the case of the agreements existing within OMC on the investments, like the Trims. However, the subject remains current : a comprehensive framework on the investments is in the middle of constant discussions between the representatives of the developed countries and in development and its implementation appears to us inevitable.

In any event, as soon as one analyzes the possibilities of setting-in-work of a comprehensive framework of investments, it is very important to observe the conditions on which it will be implemented : that wants to say that it will be necessary to observe, analyze and consider the requirements and needs for the developing countries, so that this multilateral agreement can, really, for encouraging the development not only in the less developed countries but in the whole world, not being only one international agreement moreover than will contribute to more increase enormous the abîsme which already exists and which divides the levels of existing development between the countries of North and those of the South.

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.

According to the rule of the International law, the States are and remain free and souvarains to adopt any rule, in the field of the jurisdiction of its territory, in favor ensuring the physical and social wellbeing of its Nation. As us the exceptional J. Francisco Rezek learns, « the State is identified [sovereign] when its government (...) to subject themselves not to any authority that is higher to it, do not recognize, in a last analysis, any major capacity that those on which the definition and the exercise on its competences are dependant, and to agree with its counterparts only for the construction of the order international, and always faithful to the parameters of this kind, from the premise of there will be a horizontal and levelling effort of coordenation in the interest of the collective^64(*) », or, while following the opinion of professor Nguyen Quoc Dinh, sovereignty has made to the State the holder of competences that, because being inserted in a context of a legal nature international, are not unlimited, farmhouse no entity of other has them higher^65(*).

Being included in this context of a legal nature international, the international investments and its respective whole of rules and standards is touched by the principle of the Sovereignty of the States. But that wants to say what exactly ? This assertion means that, in theory, in the States would be licit for example to impose criteria of restriction on the entry of certain international investors while supporting for that of the reasons of pure and simple sovereignty. Farmhouse in practice, one sees a completely different framework : the developing countries, in particular the importers of capital, eager to attract with its territory the direct foreign investissemnts, which would contribute for the industrial development and, consequently, economic intern, are subjected to conditions imposed by, the exporter developing countries of capital and holder of technologies more advanced and the industrial know-how. In other words, the developing country, in the search of a solution to solve the question of the vulnerability whose its economy was put, gives up the sovereign principles and right that them are ensured by the International law.

Another example of this gives up the sovereign rights of the importing countries of capital that, in spite of very interesting will not be anylise nor to study more deeply not to form not part of the central subject of this work, remains in the questions of expropriation and nationalization. Both are licit measurements in the States to adopt, are measurements which aim at the transférence of a property that in one previous moment was has a person private- for example, a foreign investor- with a person public- the State of reception- under the condition of providing a compensation propte, adequate and effective. However, at the time of the constitution of the treaties bilateral of investment, the majority of the foreign investors, redoutabes to be the next victims of the practices expropriantes or nationalizing host countries and also to be properly compensated by the guarantee schemes for the investments, they of course impose on the importing countries- the condition among others- of dirigér its investments with the territory of the aforesaid country only if, and only if, it to agree to expressly give up its sovereign rights about it to practice these acts of renunciation of property. And, as one can well antéciper, the majority of the developing countries subjected oneself to such conditions.

Notwithstanding the solid existence a great number of bilateral treaties of investment- and while going more law, one even osérait to say that it is that one of the generating factors- a multilateral agreement on the investissemnts, that would organize in a single instrument all the standards concerning with the topic, is fai at the present, necessary. But once proposed, it must be conceived with the developing countries freedom and the flexibility necessary so that they can put-in-place measurements which they judge fundamental to make so that the foreign investments, especially those which give to the investors part of the control of a company national object of the investment, are channeled towards the way of progress : in other words, the key word which must lead the négotiations of this possible multilateral framework must be that of the flexibility of the négotiations.

Varied the international institutional instruments into force at present, combined with the several bilateral agreements and treaties that are responsible for the regulation for the various matters, among those, the international investments, adopt, in the middle of its provisions, the principles of the International law of the national treatment (TN) and the most favoured nation (NPF), which are, in fact, pillars of the rules of non-discrimination : within OMC, GATT, the GATS adopt them and the Trims includes them in its article II, the various agreements regional like the ALENA and the European Union^66(*) incorporates them in its legal orders ; the bilateral treaties of investment do those its wire of ARIANE whose other standards are dismemberments.

And are these prncipes of non-discrimination, the national treatment and the treatment of the most favoured nation, so intrinsically amalgamated by the legal orders international, which limit and restrict the freedom of which should profit the developing countries. Irreprehensible present of way in all the legal sets of standards which refer to the matter of the investments, well even in a remarkable way in all the bilateral treaties of investment, one cannot expect another possibility that is not that of the resumption of these principles of the national treatment and the most favoured nation in the whole of rules of a possible multilateral agreement relating to the investments.

Always in time, an observation relevant is done present. In spite of devotebeing already devoted within the various payments and bilateral treaties, that does not want inevitably to say that the principle of the non-discrimination enjoys authority absolute : there exists in fact, in these legal instruments, some exceptions. With the developing countries, unfortunately any more but in little case than are not very frequent, it is conceived the prérogativa to adopt discriminatory measures with the detriment of the foreign investors and in favor of the nationals. So from this assertion it undoubtedly comes a question : if the bilateral agreements of investment, that could be used as example and basic for the implementation of a multilateral agreement, exists there the possibility of the developing countries which they dodged of the principles of the national treatment and the most favoured nation, why all this polemic around this topic ? The explanation is simple : the discriminatory practices in the fields of the investment foreign and international, as opposed to what occurs in the field from the trade or the international services, does not enjoy transparency, which wants to say that a negligible quantity of information is revealed, then, the inclusion of the not-discriminatory rules within a probable multilateral agreement on the investments based on the experiments of the bilateral treaties appears much more difficult than one could imagine it. The principal reason for such a lack of information does not remain, as it was already known as, in the fact of these practices did not existirent, but especially in the fact of these bilateral negotiations preliminary to the investments are, in its nature, confidential and remain, therefore, far from the range of general public- the widow of Carpentras- and are concernentes only with the parts interested in the negotiation. Consequently, if a particular government adopts an apparently discriminatory measure as being a requisition^67(*) (« performance requirement ») for the establishment of a foreign investor, it is not really odd that is made can be omitted media and, consequently, range of general public and other countries which would be suffered from a multilateral agreement, once the investor must make the choice to maintain a relation between cordiality and the government of the host country for future agreements : this is the case of large fusions and acquisitions, typical method of direct foreign investments.

It is, nevertheless, another example which appears in the bilateral treaties which should be « exported » with the framework of a possible multilateral agreement : the flexibility of the negotiations between the investors and the receiving country of its investments. In any event, it realistic, like known as beforehand, cogiter the assumption of an overall agreement on the investments, at the time of its implementation, would include provisions relating to the non-discrimination, i.e., relating to the national treatment and the treatment of the most favoured nation would not be seen through prism other than that in viguer currently, in the middle of the various sets of legal rules on the matter. The central concern of this work is that to alert, inform need for being considered the interests and the concern relating to the vulnerability of such developing countries that, due to its characteristics to have a full consuming market and of its high capacity to generate profits with its investors, will be preferentially the target of such direct foreign investments and notwithstanding, these same developing countries should be able to control the consequences and transformations caused by the entry of these international and of the same investments of other repercussions, like possible problems in its balance of payments.

However the question of flexibility under laquel must be treated tired needs of the developing countries within a general framework of a multilateral agreement on the investments, in what the application of the rules of non-discrimination in the way relates to in which one observes at present, causes discussion also seriously polemical : it is about the point which opposes tired possibilities if the not-discriminatory rules must be applied as much to the phase of the pre-establishment as with the phase of the post-establishment of the companies in the territory of the host country. These rules of treatment being offered to the foreign investors, whom lay out of the standards which do not allow its discrimination near the nationals of the host country or the nationals of another third country that that of which they are national, when suggested being also include with the phase of the pre-establishment- once more the share of the treaties, agreements and bilateral and regional conventions grant they to them rules of non-discrimination only if the investors are already properly installed in the territory of the receiving country- go against the paramount principle governing the International law, which is that of the Sovereignty of the States.

Rules of non-discrimination to the detriment of the sovereignty of the States in a probable multilateral agreement of the investments.

The principle of the non-discrimination applied to the international agreements to the investments, no matter what it is on bilateral level, regional or miltilatéral, as us shows document WT/WGTI/W/118 of Group de Travail on the Trade and the Investments of OMC, « has objectives and repercussions similar to the objectives and repercussions associated with the application with this principle in the trade agreements; it supports a better attribution of the resources at the international level, in the case in question not only of the capital but also of the techniques and other resources associated with the foreign investments; it supports the diffusion of the benefits of liberalization; it ensures all the participants a foreseeable treatment within the framework of a system unified founded on rules; it reduces the expenses of transaction and administration; it offers to the foreign investors more transparent, more stable and more foreseeable conditions; and it reinforces confidence in the national legislation of a host country^68(*). »

This extract to enable us to support the argument to which it is necessary to give oneself a special attention to needs for the investors, producers and, in a unit, needs for the government of the host country for continues given onbectifs of national policy of development, while trying, simultaneously, to find a point of balance between these needs for the developing countries and the advantages whose would benefit the foreign investors.

And this constant continuation of um balance between the interests of the developed countries and its investors of a side and needs and besoisn of the developing countries on another side, is the generating factor of another plemique in what the admission of the foreign investments relates to, mainly direct foreign investments : owe the precetes of non-discrimination, being of course among those the treatment main road and the treatment of the most favoured nation, being extended to the phase of the pre-establishment following léxemle of the phase of the post-establishment ? Or must the developing countries always maintain a minimun of sovereign control on the admission of the foreign investors in Sn territory with the detriment of a policy of « open doors » (open doors policy) ? Or, still, owes the procedure being adopted on a case-by-case basis ?

Once one speaks about the application of the principle of the non-discrimination, one imagien, obviously, the total and undeniable application of these rules. But that wants to say what exactly ? An agreement or treaty of investment, no matter what it is bilateral, regional or multilateral, which requires of a host country the concession towards a foreign investor, normally national of country developed exporting of capital, of treatment not-discriminatory complete, requires, says of other manner, that this same host country gives to the foreign investor a treatment that is not less favorable, even exactly equal, in what relates to the whole of the laws and standards applicable, with that given to other international investors- i.e., the treatment of the most favoured nation- in similar circumstances, for all that that evening relationné with the establishment and acquisition- well noted, the phase of the pre-establishment- At also to all that which relates to the exploitation, use, the sale or the liquidation of the investments- this time, the phase of the post-establishment^69(*).

In fact, the question of the application of the principles of national treatment and most favoured nation in a complete way- truly, the polimic residence because of having itself or not to extend these rules of non-discrimination to the phase of the pre-establishment, once in the majority of the treaties and contracted bilateral agreements of which one of the parts is a developing country, these treatments apply only if checked beforehand admission of the foreign investors in the own territory : the definitely delicate phase- of the post-establishment E^70(*) and requires much patient in the negotiations at the time of her total inclusion- or way resticte- within the general framework of a multilateral agreement on the matter of the investments.

One can imagine, however, that, if the developing countries agree, by the means of the contraction of a bilateral agreement or regional of investment, with the application of the principles of the national treatment and the most favoured nation in the phase of the post-establishment, this practice would not have any negative effect in what relates to the objectives defined in its internal policy of research in the development and a durable growth. It is, nevertheless, an error : even the non-discrimination referring only to the phase whose foreign investors were already allowed in the territory of the host country, the application of these precetes not-discriminatory, especially in what relates to the national treatment, in a complete way and without restrictions, limits the possibilities of the host country of giving a more effective protection towards its investors and producing national compared to international competition- for those, while benefitting from the level playing field- through adoption from the laws and legal standards differentiated^71(*), such being the case of the tax legislations, for example.

However, it is well the common opinion the fact that, under the aegis of the usual laws of the International law, there does not only exist can gather with one « right of admission » or with one « right to invest in a third country » : the usual law international does not require of any country of accuiel that it grants a nondiscriminatory guarantee of treatment compared to the foreign investors eager to be established in their territories or even these which enjoy already a status of allowed^72(*). That being, the States, as much as sovereigns, must maintain the capacity to determine and decide with type of investor or investment they will be able to conceive the admission and the installation in their territories and which sectors ; and the foreign investors must agree with such provisions : though it is the right or the duty which a State compared to a foreign investor has was born from a treaty or an agreement or some instrument of negotiation of International law of other contracted, by free choice, with another State. Consequently, the autonomy which enjoys a State to regulate this access of the investments, mainly the direct foreign investments, was translated in pure and simple assertion of its sovereignty : the right of which would be supposed to have a country to regulate and restrict these fluxs investment foreigners could be based in the international laws concernentes the abroads and in its possibilities also of denying the entry in their territory of these same investors^73(*).

The difficulty remains owing to the fact that this philosophy, in spite of equipped with an idealism right but utopian, goes exactly against the suggestions of inclusion of cettes provisions concernentes to the application of the principles of non-discrimination in the phase of the pre-establishment, which, obviously, will have suddenly obstructed the opinion of the developed countries and would prevent its intentions to be put in the territories of the developing countries.

The Europpénne Community, while being among the developed countries that suggest the total application of the principle of the non-discrimination within the general framework of a multilateral agreement on the investments, will give us the possibility of illustrating the argumentations supra exposed. In the work completed within the WGTI of OMC entitled Submissions by the European Communities, the European Community analyzes the application of the principles of the national treatment and of the treatment of the most favoured nation without any restriction and presents some proposals to us. The beginning of work gives us a general regard of the position of the Community on the not-discriminatory treatments :

« the not-discriminatory treatment of the international investments is a condition necessary for the implementation of a level playing field (of the equal conditions of concurrance) for the direct investments foreign (IED) in everyone, which entraîneraitle flow of the capital and would minimize the distortions, while liberalizing the aditionnelles resources^74(*). »

More specifically, ls proposals of the European Community present in the aforementioned Work, contains the desire to extend the same existing degrees of non-discrimination in the sector of the services included by the GATS in the fields from a possible agreement on the investments : consequently, always of agreement with the proposals of the Community, possible and even probable multilateral agreement on the investments should include an obligation of treatment of the most favoured nation while covering the phase of pre and of the post-establishment, notwithstanding, of course, the possibility that exceptions were conceived^75(*). The European Community proposes also the inclusion of an obligation of application of the principle of the national treatment dana the phase of the post-establishment^76(*), probably to avoid major differences in what touches with the fiscal rules exempted to the national and international investors.

However, even vis-a-vis these suggestions, the Community recognizes the need for existence of some kind of sovereign control of the part of these receiving countries of investment. For saying in another manner, the proposals submitted by the Community within Group de Travail on the trade and the investments of OMC lays out that the policy continuation by the host countries to retain some kind of control on the foreign investments would not be necessarily a bad thing, as soon as not moved by the desire to preserve the policies and objectives of development, national safety, public health, protection to the environment or public morals^77(*) : i.e., the European Community, to beyond work out the provisions which should belong to a multilateral agreement lays out in a preliminary way which would be its exceptions ! Always according to the Community, these aims in view by the receiving countries of investments, normally the developing countries, would absolutely not go against the suggestions proposed by a multilateral agreement on the matter, as they make already in the majority of the international agreements into force.

Despite everything the talk, it is clear that for the developing countries, among the proposals of the European Community ceel relating to the investment appraisal according to the boarding checked in the GATS is easiest to be granted : it sá to lie of the negative lists^78(*).

Separately the proposals of the Community, it rste no doubt of the certainty of the host countries want and need a species of selective control on the foreign investments which it admits or will admit in its territory and also will exert this control on the conditions on which these investors and/or investments will be admitted, in particular under the terms of its needs for adopting measures which support the national investors for, there yes, for establishing equal and real conditions for competition. For example, the host country can it adopt measures which would be some of selection of the investors whose intentions the government judges comptibles with its internal industrial policy ; or can still want to offer or continue to offer conditions favorable related to the investments to a certain number of country- and not to others- not very important if they are already established in the territory of the initiate or host country its activities (in this case, the principle of the most favoured nation would be derogated) or not (in this case, would be the principle of the national treatment)^79(*).

While more specifically analyzing chaqu' one of the principles of non-discrimination, it is the national treatment which cause major problems, once the polemic which remains around the application of the principle of the most favoured nation of restricting with the divergences concernentes application or not in the phase of the pre-establishment, being all the question of application in the phase of the a little undisputed post-establishment if observed tired provisions of the various bilateral and regional international instruments into force.

To apply or not to apply the principle of the national treatment as being an essential condition for the adimission of the foreign investors is a particularly significant question for the majority of the receiving countries, the developing countries : an application of such principle, in an exclusive way to the phase of the post-establishment, a this opinion whose divides tousles developing country and the extension of its application to the phase former to the admission of the foreign investor in the territory of the host country present in certain agreements on the matter^80(*) something is regarded as very revolutionary for some countries^81(*). The interest of the investors for the integral application- that wants to say in the two phases, those of pre and of the post-establishment- of the principle of the national treatment remains because of, according to those, that metterait them in foot of iguality, établisserait one level playing field compared to the investors and producing national once that would limit, even would eliminate some possibility whose would be equipped the national government with the host country to apply réglementatives mesur that could profit or protect its nationals. It is the reason by which the discussion which surrounds the integral application or not- this last possibility would give a major freedom of choice to the host countries- of the national treatment are so important : its range will be directly proportional to the effects that it saureit to be able to cause. A national treatment which includes laphase pre-establishment will go against the freedom whose jouisserait the government of a certain host country to take care and protect from the given sectors of its economy considered as being essential with the national investors and producing only or, in the case of the Advent of an exception or exemption from this rule, to impose to the international investors of condition special for its admission : this kind of policy proportions with the government the possibility of maintaining the control^82(*) of certain sectors, like telecommunications or the forces military, famous as being very important by the internal order of the State, while thus preserving its freedom to change its policy when the adversities and circumstances obliged it to do it ; on the other hand, a national treatment that is concernente with the phase of the post-establishment would prevent subsidizing the national investors or from granting them benefit by the means of the other types of incentives, which would be made unequal surely necessary due to the levels where the international investors and the nationals put themselves, or to even exert a stronger control- though it is legal (by the means of the regulations) or economic (by the means of the taxation and the impositions)- on foreigners that on the nationals in sectors like the environment or the créacion of employment (obligation of emprisionner labor national).

In what relates to the international agreements and treaties, bilateral or multilateral, one can observe an incidence and preference corissantes for the application of the principles of the non-discrimination in the posterior phase to the entry of the foreign investors in the territory of the host country, with some exceptions, obviously, as in what relates to, within a framework of a bilateral agreement, the agreements between the United States and Canada and, in a cdre of a multilateral agreement, the agreements contracted within the ALENA for example, which encourages the developing countries has to also adopt measures of national treatment in the phases of the pre-establishment. In any event, in these same international agreements, one as notes an approach various relating to the principle of triatement national as with the principle of the treatment of the most favoured nation : and they are in number of two mow principal boardings référentes with the treatment which should be granted to the foreign investors.

The first of these boardings is that which appears in the majority of the bilateral treaties on the investment : it consists to stipulate of it that the foreign investors are allowed in conformity with the laws and regulations of the host country, while adding, normally, a species of special clause or regulation which ensures the national investors of the countries left contracting the treaty in question of the favorable conditions to carry out its respective investments in the territory of the other contracting country. As example one can quote the following provision^83(*) whose schémaest followed by the majority of the bilateral agreements on the investment concluded by the European Community Member States^84(*) and of which in certain cases, the treatment NPF - but not national treatment - is prescribed before the establishment of the investment :

« Each contracting part will encourage the investments coming from the investors of the other contracting part and will admit these investments in accordance with its laws and regulations. It will grant to these investments a treatment right and equitable, and will abstain from blocking, by unreasonable or discriminatory measurements, management, maintenance, the use, the pleasure, the development, the sale or the liquidation of these invested credits^85(*). »

It is suitable also to note, also, that this approach adopted by the majority of the countries which are contracting parts in a bilateral agreement, leaves open and to the decision proper countries the factors of regulation of the entry of the foreign investors : in other words, this kind of agreement does not withdraw contracting countries the possibility of restricting the entry of the foreign investors in their territory- it would be, consequently, a preferential provision with sovereignty of the States- not allowing thus the application of the not-discriminatory principles- i.e., the national treatment and the treatment of the most favoured nation- during the time which could be preliminary to the establishment of these same foreign investors. What does not prevent that these agreements and treaties can allow and, further, can prévoyer the application of such not-discriminatory principles during the time concernente to the post-establishment, i.e., after the foreign investor is properly admitted and installed in the territory of the country D `reception : notwithstanding the application of these principles in the post-establishment, its application can be limited in several ways. It often happens that the obligations are limited to the investments and investors whom are already admitted and properly installed in the territory of the country where they wish of put-in-work his activities : « The investors of each contracting part must profit, on the territory of the other contracting part, from a treatment not less favorable than that which is granted to its own investors or to the investors of any other third party, the most favorable mode being retained^86(*). 

Second approach, relating to the admission and the establishment of the foreign investors, which is that likes the developed countries more and, consequently, its nationals : it is about the total and complete application of the principles of the national treatment and the most favoured nation ; what wants to say, two phases of the investment, the pre one and post-establishment. One observes this approach in mow practice adopted within the conventions bilatérals contracted by the United States^87(*) and also in other recent agreements contracted by Canada, and well even, in what the framework of the regional regulations relates to which have provisions relating to the investments, the agreements like the ALENA or Mercosur.

Lately, to conclude one can say that the majority of the treaties and agreements into force at present adopt the application of the principles of non-discrimination by giving a character of exclusiveness to the phase in the post-establishment and give a special emphase to the protection of the investments and investors that to the access to the markets ; in the same direction, the majority contains provisions which limit the not-discriminatory rules : also in what the national treatment that in relates to what the treatment of the most favoured nation relates to : it is noted, moreover, a tendence in the more recent bilateral treaties, a vaster application of the most favoured treatment of the nation in the phase of the pre-establishment^88(*)- as prefers and, further, insists the developed countries- what could be an important question that will be able to relate to the developing countries anxious to attract for its territory of the direct foreign investments, by considering that the exporting countries of capital, according to a capitalist mentality and in the search of a maximization of the profits, have a tendence to choose the countries which facilitate more the entry of its investors and which can more quickly give of the financial renenus to its investments : the créacion of an environment more favorable to freedom of movement of the direct investments étangers is, consequently, a strategy of development very important and increasingly recognized by the developing countries.

E. OMC like possible the enclosure of negotiation for a multilateral agreement on the investments.

After the failure of the FRIEND within OECD under the terms of the difficulties shown by the concernentes parts to lead itself to an agreement on the rules substantivize which would be include in this agreement, the discussion at present remains on which would be the enclosure most adapted to implement the probable multilateral agreement on the subject of the investments, with the case of its birth.

Today, there exist more than 2200 bilateral treaties of investment (TBI or the ILO, if one limits oneself to the translation in English language) and perhaps this number is increasing even more with measurement where one speaks. Obviously, these agreements are not identical, farmhouses they have a tendence to obey a certain standard and have several similarities : it is licit, consequently, statement which there is a certain level of uniformity in what relates to its rules, mainly in what relates to with the protection of the investments and the guarantee of this protection against measurements of expropriation and nationalization- what could justify and support the argumentations in favor of the implementation of a multilateral agreement on the matter. However, cettes similarities and coincidences mainly do not prevent that the treaties are interpreters and not judged in a various- way judgments given in the arbitration courts. The implementation of a multilateral agreement on the investments proposes a suppression of cettes differences and a consequent general uniformity of the legal orders and, perhaps, a uniformity also in what relates to the interpretative standard. An agreement of this range will be able to implement an institutionalization more uniform and present especially mechanism of settlement of- the disputes if that arrives within OMC where there is already a Body of Settlement of the Disputes- and which the possibility could replace of subjecting the same litigation to the appreciation of several courts by its tender with an exclusive jurisdiction : would be the end of the practices of forum shopping which are caused by the conflicts of jurisdiction born of the provisions present in several bilateral agreements and regional, before the implementation of those last.

In this way, the créacion of a multilateral agreement on the investments within OMC, having for goal the créacion and the establishment of rules and clear, general and final standards on the subject of the international investments and its methods, into special those relating to the direct investments étramgers- for all the Member States^89(*), which will come has to still offer of great benefit for the countries having a major potenciel investors, while considering that it will be proportioned with them a major safety in what relates to the treatment of its investments in the host countries. Notwithstanding, such an agreement- especially if it comes has positiver within OMC- will have to also exempt a special attention with the needs and supposed needs for the countries while développementétant to include in its dispostions of the clauses which aim has possibiliter the progress of the saving in these countries.

And fortunately, in the current world field, the developed countries seem to have returned account which the developing countries have of the so important needs that no criterion and also, no progress in the negotiations internationais concernentes with the investments, could be completed without before them exempting an attention plus incisor with the interest of the problems of the developing countries : the recent pratiqeus of the countries developed in the negotiations on the subject reflect this preocupation towards the situation of the developing countries, whose absence of support and collaboration will only contribute to make so that a multilateral agreement cannot be born. One proposes has to try to quote, in a exemplificative and at all énumerative way, some question about which the developing countries must insist with vehemence in the course of the negotiations which would be supposed to lead to the aforementioned multilateral agreement.

The first - and of ramrquable importance- question relates to the problems relating to the balance of payments of the developing countries. The document deposits by the European Community within OMC aims has to define what would be a problem of balance of payments by the means of the example where « a situation in an unquestionable country [...] where its accounts would be in deficit and the importation of goods and services could be impossibility of being financié through flow of sufficient entry of foreign capital or a srategic reduction of the reserves of foreign capital^90(*). In this direction and always of agreement with the document, the options of which could lay out the aforementioned country subjected to the problems of the balance-of-payments, incluirait an increase in the capital in circulation, by the bias of, for example, the expansion of exports or the restriction of the imports or even, and it is that which gives us about the present work, by the means of a considerable increase in its reserves of capital all in incentive flow and the entry of the resources financial foreigners- and this capital would be supposed being collected through direct foreign investments. Consequently, one can admit that the increase in the entry of the direct foreign investments would cause nevertheless certain transformations in the policies of rates of exchange and monetary of these same countries : and under the terms of these problems which the document proposes also the inclusion, within a multilateral framework of the investments which would be also charged to regulate the transborder fluxs direct foreign investment, safeguard clauses. These same safeguard measures could extend to the developing countries, obviously, once checked problems in its balance-of-payments.

Another document made up at SEN of Group de Travail on the trade and the investments of OMC^91(*) lights us the question of the direct foreign investments and its remarkable importance for concerns of the developing countries in what relates to its problems of balance-of-payments : « All indicates that the IED is less likely to cause problems of this kind that the other types of flow of capital. The direct investment is much more stable and relates to amounts generally smaller than the investments of wallet and the appropriations. Like the cost of the operations, and thus the risk, is much higher for the establishment of a company than for example for the purchase of short-term Treasury bills, the direct investment in a new establishment is a long-term plan, maturely chosen, and which cannot be liquidated day at the following day. Moreover, the direct investment is often done in the form of share capitals, which, contrary to the instruments creating a debt, does not impose to the debtor the obligation to pay fixed interests and to refund the capital on a given date; the foreign investor can not want - or not to be able -to liquidate its actions if it does not find a purchaser who agrees to pay the desired price. Lastly, and it is most important perhaps there, in the absence of perfectly fluid financial markets and of substitutable instruments of financing, the share of the direct investment which results in the creation of a potential of production is generally higher than in the case of the investments of wallet and the appropriations, so that the IED increases the capacity of the country to ensure thereafter the service of its debt while exporting more^92(*). »

It is suggested, consequently, that the direct foreign investments would not be in any manner, the persons in charge to cause problems in the balance-of-payments of the countries. Ex positis, a question was inevitably posed : if they are not among the responsible elements to cause the problems in the balance-of-payments, why could not they thus be consider a way to arrive at the solution ?

In continuation, it comes the question from the continuation of the practices of development for the developing countries. The Declaration of Doha included, among its topics, of the provisions relating to the development and according to it, a multilateral agreement on the investments should reflect the interests and needs for all the countries concernents, those whose investors are national and export their capital and those responsible to admit these investors and investments in his territory, and should also take into account the policies of development el the objective nationals of the governments of the host countries- normally, the developing countries- and its respective right of put-in-place of the regulations in favor of the public interest. Is in this field, that of the development, that in a penetrating way the polemic of the application of the already quoted principles of non-discrimination checks : according to developing countries', a total application and without restrictions of these principles could deprive them of a single opportunity to foment their development. The provisions on the subject of the development must obey three principal elements : firstly, the agreements on the investments will have to give to the receiving countries investments freedom and the flexibility necessary and sufficient so that they can admit the only foreign investments that one a relationship with his internal needs : the possibilities of a host country of contruire and to develop its industrial and technological sectors remains open in this binomial freedom/flexibility.

Thereafter, the agreements on the investments must contain a character of friendship compared to the investors, once the entry of foreign capital under the terms of the international investments is one of the conditions for the progress of objectives of development : a treatment right and equitable, for example, must be provided combined to the guarantees of protection to the foreign investors so that can lead itself to the introduction of an environment favorable to its investments.

And finally, the obligations which the investors have should not be ignored at all : it is about such a polemical question and consequently rather discussed : the developing countries support that obligations of result- performance requirements -, technology transfers, protection to the environment and dissemination to know to make are some of pratqic which should appear among the obligations of the foreign investors.

However, the reasons by which the introduction of an agreement is wished which is able to group the whole of the existing standards on the investments within OMC exceeds the question- in spite of very important- conflict of interests and needs relating to the déeloppés countries and has those under development : the reason for the choice of the World Organization of the Trade is, before some other, of an institutional nature.

OMC, born as being it principal institution international and first total forum in charge of put-in-place the practices and precetes of the Economic International law, seems to be developing in its Member an increasing preference to become the final enclosure to shelter, regulate and résourdre the disagreements relative about the investments, while using like argumentations in its favor the economic character inherent in this institution and also the international respect absolut of which it has, expressed by the means of the figures (increasing !) Member States and countries which want to become Membres. And notwithstanding, like already quoted in this work, OMC includes already, in spite of in a scattered way, various payments and agreements concernents with the topic of the investments^93(*).

As if were not sufficient, there exist still two other reasons which one can point as being of primary importance for the implementation of a multilateral agreement on the investments within the World Organization of the Trade : initially, trade and investment are intrinsically dependant and the majority of the existing national rules in the Member States of the aforesaid the institution on the topic go against those multinational ; nothing more logical than to join together in the body of only one agreement the international rules which would pass to govern them ; then, a multilateral agreement on the investments within OMC would profit from already founded and under operation- and that showed itself for several times of great competence- tallies institutional, in particular of the Body of Settlement of the Disputes^94(*).

If a possible agreement multilate \ éral would have or should not belong to the matters- or « covered agreements^95(*) » - included by OMC and, consequently, being liable to be subjected to the Body of Settlement of the Disputes, there exist some divergences. One of the polemic remains owing to the fact that, once subjected to the ORD of OMC, the procedure of settlement of the disputes relating to the investment could lose the flexible character that it has when is subjected to the international courts of arbitration : the arbitrations between country would be completely absorbed by the system of the World Organization, with the step that the arbitrations between the investors and States- analog and digital system of arbitration- would be to analyze by a different prism, once the relation between the foreign investors and the host countries through the countries of which the first could be national, which would cause some questions. For example, the request of the part of a private foreign investor in his State of origin to initiate a disagreement against the country which accommodated its investment in the defense of its name, could cause complicated situations generated by possible a bureaucracie of the government in question, which diminuirait appreciably the speed of the lawsuit.

Nevertheless, the question which gives more of the concern, sourtout for the developing countries, is that relating to- the higher cost, obviously- to which could undergo the countries at the time of the tender of the questions relating to the investments with the Body of Settlement of the Disputes of OMC : there is no controversy in world legal literarture on the subject of the Body of OMC is extremely expensive and excessively technique, which would place in different levels the developing countries compared to them same and compared to the developed countries, for example for these countries African very slightly advanced that consider the incentive of the direct foreign investments one of the only solutions to foment their progress : some among these countries would not even have a human and technical development to have professionals in the field of the Right of OMC, having only one dozen schools of Right and a severe failure of personnel qualified to learn the matter^96(*). It is that there, therefore, a question which must be analyzed with an extreme care before being setting-in-place if it is planned to hold in account the interests of the developing countries, bus to apply the system and the procedure of L » body of Settlement of the Disputes in the way which it functions at present would be economically to deny with the countries the least favoured the advisability of regulating and of solving its litigations in a way much friendlier and moin expensive, which would be by the means of the international arbitrations. In this direction, some countries in dévloppement soutinnent the proposal of the Body of OMC, being a system inter-gouvernamentel currently, will have to continue to be it even after the Advent of a multilateral agreement of investments : this position would cause an exclusion of the field of application of the Body of Settlement of the Disputes of the investors deprived in what with the questions of mixed litigation investor-State relates to. The positive argumentation is that which says that in this way there would not be the risk of the supervening of a true avalanche of litigations in OMC, which the Body would not be able to support^97(*).

Currently, the major barriers which are opposed to an overall agreement on the investments remain those of a political nature - and not economic : what should be the object of the search for all the countries, through international laws and standards, treaties and bilateral agreements and multilateral and all the other instruments of Right, would be to promote an increase and to consolidate the benefit harvests by the flow of the direct foreign investments while contributing, thus, simultaneously, for the reduction or even the elimination of the abuses potenciels made by multinational corporations, which are the principal persons in charge for the dissemination for this method for international investment, with the detriment of the developing countries. Then, the paramount goal of a hard multilateral agreement should be this one the investments.

However, the moment for the implementation of a multilateral agreement approaches : therefore, while antecipant with the development- in the form the best suitable one, which wants to say that like enclosure of negotiation the field of L will have to be selected » world oragnisation of the Trade- of the multilateral acoord of the investments of XXIer century, one is limited on the hope of the beginning of a new era of rules and legal provisions dictations by the taking into account of the responsibility in favor of liberalization of the international investments.

II. Direct international investments and problems of balance-of-payments.

The balance of payments is the countable register of all the economic and financial transactions of a country with others in the world. It includes the accounts current- the movement of goods and services- and the movement of capital- the displacement of the currency, the appropriations and the representative titles of the investments. The balance of payments is made by the Central Bank of a country, once it is it responsible for manages its reserves, presented once per annum.

The pay of the balance of payments in current transactions indicates if the country is rather an exporter or importer of capital : first is indicated by the balance positive, the second, negative.

The balance of payments can be superavitaire, overdrawn or balanced. When it is superavitaire, quantity of the financial resources that one entered the country pandant the year were higher than the quantity which left, while contributing for an increase in the reserves étrangeres of the country. When it is overdrawn, the opposite is checked and when it is balanced, the quantity of capital which left is exactly the same one as that which entered, while contributing to maintain the level of the reserves étrangeres country in the same situation.

The arrengements of the balance of payments are made by the means of the real devaluations of the rate of exchange ; reduction of the levels of economic activity ; tariff restrictions on the imports ; export subsidies ; of an increase in or of the internal control interest rate of outflow of capital outside.

This being, one can easily check the importance of a balance of payments at least balanced for all the countries, especially those under development. The flow of the direct foreign investments can involve at the same time benefit and damages with the countries that accommodate them in what relates to its balance of payments. In this part, one will limit oneself has to analyze the consequences of the collecting of the foreign investments and his relationship with the balance of payments : first of all, it will be necessary to study the exception and safeguards (A) which can be granted under the terms of the problems of balance of payments and, then one will analyze the direct relation which exists between the foreign investments direct and the changes in the balance of payments (B).

A. Exceptions and safeguards concerning the balance of payments

The exceptions and safeguards concerning the balance of payments were already laid out in the ministerial Declaration of Doha among the questions that the Working group of the bonds between trade and investment should be charged. But also, the subject of the investments and also them exception which should be granted to the countries which presented of the difficulties in its balance of payments had already been discussed within OMC. As well a document of Group de Travail for the trade and the investments shows us (according to its English translation, WGTI) :

« Like GATT and the AGCS, a future framework on the investment for the development would have, of the opinion of the EC, to envisage the possibility for the Members of taking safeguard measures in the event of crisis of the balance of payments. This type of safeguard clause is particularly important for the developing countries whose financial system can more fragile and be exposed more to instability. We think that any safeguard measure should be taken in exceptional circumstances, in a nondiscriminatory way and fully conforms to the Statutes of the IMF, for one period of time limited, and that this measurement should not go beyond what is necessary to face the crisis of the balance of payments. This type of measurement should in addition be notified with OMC and, subject to an effective multilateral examination, to be implemented in a way coordinated between OMC and the IMF^98(*). »

However, as well the aforementioned document observes, the entry of the resources financial inevitably does not cause an improvement of the situation whose its balance enjoys of payments : i.e., at the time of the entry of the direct foreign investments in a country, one imagines a developing country normally, will not make forcing so that an adverse balance of payments becomes superavitaire nor that a balance of superavitaire payments becomes adverse. In spite of that, it is quite true that the foreign capital contributions can with contrario sensu of what want the countries which encourage its entry, to contribute to worsen the situation of the balance of payments.

The balance of payments of a country can be, for several reasons in a situation which will be able, if nothing is done to regulate this situation, to emerge a crisis. As well the document of Group de Travail of OMC considers, « that [can] produi [Re] for example when the account of the current operations is overdrawn and that the net imports of products and services cannot be financed by a sufficient contribution of foreign capital or by a reduction in the foreign-exchange reserves. That can lead to a nonviable situation of the balance of payments. The country concerned then has the choice between improving the balance of the current transactions, for example by increasing exports or by restricting the imports (provided that these restrictions are compatible with its international obligations and, preferably, that they are not against-productive taking into account the objectives of future development) or improving the situation of the capital transaction account by encouraging the entries of capital. It can achieve this last goal by attracting a greater volume of IED or investments of wallet. Another means of action consist in, if this choice is viable taking into account the later refunding of the interests and the capital, making loans near foreign banks, of foreign governments or international institutions. In addition, this country can have to consider adjustments of its monetary policy and its policy of exchange^99(*). »

Not to emerge a financial and economic crisis, it will be necessary to the countries to take preliminary measures to avoid facing serious concern in its balance of payments : it is better to prevent than to cure. For that, the governments have the possibility of making the choice to take restrictive measures relating to the current transfers and the movements of capital : it is indeed obvious that these measurements have a considerable cost and consequences and can involve distortions in the economy of the countries that adopt them : such restrictive measurements can, for example, to cause a massive escape of foreign capital, which would contribute to decrease the internal reserves of the country concerned. It is also for that that a general framework of a multilateral agreement on the investments which would aim to also control the direct foreign investments should préocuper preserve the possibility- especially with the developing countries- aus left contracting to adopt safeguard measures, which of course, could not be discritionnaires and will have to obey criteria well defined and granted at the total level.

Nevertheless, in spite of one observes provisions concerning the concession of safeguards under the terms of the problems of balance of payments in certain bilateral agreements and regional as is the case of the ALENA^100(*), the majority of the bilateral treaties on the investment always explicitly do not envisage this kind of exceptions concerning the balance of payments.

The codes of OECD - Code of the release of the movements of capital and Code of the release of the current invisible operations - lay out that « a Member can suspend, on a purely conservatory basis, the application of his measurements of liberalization if the total balance of the payments of a Member evolves/moves unfavourably at a rate and in circumstances, in particular the state of his monetary reserves, which appear dangerous to him. »

Also, within OMC by the means of its general agreements as the GATS which relates to the trade of the services, one checks the concession of the possibility by a country of adopting safeguard measures under the terms of the problems of balance of payments : « the article XII of the AGCS authorizes a Member to adopt or maintain restrictions on the payments or transfers for the transactions related to his engagements if its balance of payments and its external financial standing pose or threaten to raise serious difficulties^101(*). » Still in this direction, the GATS envisages in its provisions the need that have the developing countries to have such a level of financial reserves étrangeres so that they are capable of financier his projects and his policy of economic development and internal progress.

Generally, these safeguards cannot be applied in manner unobserved : to be licit they must meet some conditions, is it must be imposed in a not-discriminatory way- i.e., while respecting mainly the principles of the national treatment and the most favoured nation -, that is to say they must be adopted during a epériode time limited and specific or even also, they must be compatible with the provisions of the International Monetary International Monetary Fund. And it is because of this last condition which gives us in Status of the IMF, that with the Members are granted the authorization to take special measure of exchange, such as for example the application of the restrictions on the current transactions in virtue, obviously, of the problems and distortions in its balance of payments^102(*).

The following the example of what the document of OMC WT/WGTI/W/153 shows us, deposits by Group de Travail, « a safeguard clause allowing the imposition of restrictions on the investment for reasons of balance of payments is an example of «clause of exemption», a type of clause which revêt a particular importance for the developing countries. In any event, a safeguard clause concerning the balance of payments, which authorizes the Members to take restrictive measures, should be applicable only in exceptional circumstances, should be clearly defined and lay down strict criteria. For example, we think that the restrictions would have:

- to be nondiscriminatory;

- to be compatible with the other relevant international provisions;

- to be limited in time and to be eliminated gradually;

- to be applied in a manner which does not go beyond what is necessary to face the sudden difficulties;

- to avoid unnecessarily injuring the interests of the other Members;

- not to be used to justify measures adopted in order to protect from the branches of production or specific sectors.

B. Direct foreign investments and the balance of payments.

The character of the direct foreign investments changed since the Seventies : they is not concentrated in activities equipped any more with a certain protection consisting in substituting the imports in the host countries, in particular the developing countries, once, at this time, they did not have many the advisabilities of stimulating exports- one speaks one time when, in spite of the existance of GATT, there were not OMC and all the force institutional which surrounds it. This premise is made useful to analyze the concerning former studies the existance or not concurrential ground in which the foreign companies represented by its subsidiary companies replaced factor determining to lead itself to the answer of the question of if the direct foreign investments had an effect « negative » or « positive » on the balance of payments of the host countries.

Group de Travail on the trade and the invetsissements of OMC, while wanting to know the reason by which certain effects can be regarded as « negative » in what relates to the development and the growth of the host country of the investments^103(*), once at the base the direct foreign investments would be supposed to foment the development by the means of the injection of capital and the dissemination of advanced technologies and know-how. However, in spite of the studies of Group de Travail checked that, if the direct foreign investments could cause effects « negative » on the economy of the country that to receive them, this observation will have to take into account all the effects which this method of investment international would know caused, not devrant to be estimated only according to one effect or the other ; and besides, no provision disputed the fact that the direct foreign investments could, of course, being beneficial for the internal economies of the receiving countries. The interesting one here would be, however, to analyze, parmis all the effects which can be caused by the entry of the direct foreign investments- in particular in the developing countries, which are famous like the major importers of foreign capital -, those of a political nature (and consequently having an effect on the economy) to give to the governments the possibility of maximizing the positive effects and of minimizing the negative effects caused by the international investments : and that is the base of the study of the effects of the direct foreign investments on the balance of payments of the host countries^104(*).

This question, obviously, involves concerns on all the actors of the scene of the investments international : investors, host countries and also institutions and organizations international; and it is because of that that some studies were carried out by those last on the general effects of the direct foreign investments on the balance of payments of the countries concernents. Nevertheless, there are as studies made by famous international lawyers as, under the terms of its notable legal wisdom, were taken again by international institutions^105(*).

More recently, the international intitutions have a tendence to base its studies on the following question : « what would it have arrived at the balance of payments in the absence of IED? », which wants to say that it is necessary that the direct foreign investments are analyzed on a case-by-case basis, while remaining possible that the effects of such an investment in a country is completely different from the effects caused^106(*) in another, under the terms of idyossincratic questions like the absorbition of the investment by the host country or its anciennity. Such was the case of OECD and the UNCTAD^107(*).

According to the one document returned by Group de Travail on the trade and the investments of OMC, the definition of direct foreign investment, so that can lead itself to a responsible analysis, should be well defined :

« From the static point of view, one can generally consider the IED as an initial contribution of capital (which it is of an entirely new investment or an fusion-acquisition), coupled thereafter with capital contributions (news injections of capital), with exits (repatriation of the benefit, royalties, etc) and with entering commercial flows (importation of goods of equipment and intermediate inputs related to the investment) and outgoing (replacement of the imports by goods and services national and export of goods and services). Can also have effects on the balance of payments the new economic activity created in the host country by the presence of the IED and which would not have taken place in its absence, for example a new activity of replacement of the imports in order to feed the IED in goods and services or a new production turned towards the export which develops as a repercussion of the IED (grace, for example, with the diffusion in the host country of technologies and competences in management brought by the IED)^108(*). »

It should however be realized of that certain effects of the direct foreign investment on the balance of payments of the countries which accommodate this kind of investment can give an impression erroneous of the Generals effect of these same effects on the same country^109(*) : in this direction, if one restricts oneself to observe only, for example, the increase in the importation that surely will follow the establishment and the step of the activities of a subsidiary company of a foreign multinational corporation in the host country, it is clear that, à ce moment-là, the direct foreign investments will give the impression to cause an effect « negative » in the balance of payments of these host countries, without holding account, in this case, of the effects « positive » that this company can generate all- in the medium and long term while remembering that, by definition, the direct foreign investments involve an idea of long duration.

But the analysis of the effects of the direct foreign investments on the balance of payments of the host countries is far from being an easy task because, in spite of the obstacles practice and policies which exist naturally, one cannot be astonished by saying that there can be difficulties also caused for lack of interest of the part of some countries. According to the document of Group de Travail :

« It is difficult to concretely disentangle the effects of the IED on the balance of payments of the host country, and there are in any event few chances that that is of a great practical utility for the development of the policies as regards balance of payments, for several reasons. Firstly, the IED is generally not the most important factor which influences the position of the balance of payments, because its contribution to the interior investment gross in the host country seldom exceeds 15 percent.^110(*) Secondly, as the balance of payments is an especially macro-economic variable and that the decisions of the foreign investors investment exploitation are rather formulated like an integrated whole, the policies intended to improve only one aspect of the effects of the IED on the balance of payments (for example its coefficient of importation) are likely to have compensatory effects on others (for example its coefficient of export). Thirdly, a «negative» effect supposedly of the IED on the balance of payments (for example increase in the imports of goods of equipment and machines) can just as easily pass for «positive» when one considers it under the angle of the growth and the economic development of the host country (for example, formation of capital or technology transfer)^111(*). »

The aspects of the direct foreign investissemnts which can involve the problems of balance of payments are in quantity of four categories, they being the increase in the imports of goods of equipment and intermediate inputs; the price of transfer; the repatriation of the benefit, dividends and royalties and the direct foreign investment and the management of the balance of payments, mainly in what relates to, as example, the financial crises which struck the developing countries in the Nineties. One will restrict oneself to study the last category to have this one a more specific relationship with the subject of this work.

As us the document of Group de Travail shows, «a deficit of the account of the current operations of the balance of payments is not necessarily alarming for the developing countries. The efforts to stimulate the interior investment and the economic growth can oblige to more call upon the capital been essential to compensate for the interior saving. The essential question is to know if the deficit will be bearable in the long term. That will depend much on the extent to which the country will be able to increase its export earnings to face the external financial obligations which result from the entries of capital. The level and the composition of the external assets Nets are also important, because the increase in the export earnings can take a certain time, and the clear entries of foreign capital waited can be meanwhile disturbed by external economic shocks. It is in this context, especially following the financial crisis which struck the emergent markets recently, to start with Asia in 1997, which certain delegations were worried by the harmful effects that an abrupt clear exit of capital could have on the balance of payments of the host country^112(*).»

In this same direction, OECD lays out on a rather current fact which works on the possibility of, the external financings in excess, can make so that the host countries become their dependant, which can generate a major vulnerability in the economy of the country vis-a-vis the vicissitudes of the world market and the speculations of the foreign investors. Here the conclusion of OECD :

« All indicates that the IED is less likely to cause problems of this kind that the other types of flow of capital. The direct investment is much more stable and relates to amounts generally smaller than the investments of wallet and the appropriations. Like the cost of the operations, and thus the risk, is much higher for the establishment of a company than for example for the purchase of short-term Treasury bills, the direct investment in a new establishment is a long-term plan, maturely chosen, and which cannot be liquidated day at the following day. Moreover, the direct investment is often done in the form of share capitals, which, contrary to the instruments creating a debt, does not impose to the debtor the obligation to pay fixed interests and to refund the capital on a given date; the foreign investor can not want - or not to be able -to liquidate its actions if it does not find a purchaser who agrees to pay the desired price. Lastly, and it is most important perhaps there, in the absence of perfectly fluid financial markets and of substitutable instruments of financing, the share of the direct investment which results in the creation of a potential of production is generally higher than in the case of the investments of wallet and the appropriations, so that the IED increases the capacity of the country to ensure thereafter the service of its debt while exporting more^113(*). »

Still within OECD, in another study, it analyzed the possibility, by the host countries of entaîner an opening m ajeure of their banking environment to the foreign participations, as a possible solution to reduce the risk of banking and financial crisis, while giving better conditions of competition and in améliorannt the legal rules which touch the banking environment^114(*).

While speaking about financial crises, it was with the UNCTAD the reponsability to evaluate the prospects for the direct foreign investment in the developing countries- while taking as object of observation Asia, that explicant to be this continent one of the major international recipients of investment at present- and its relationship with the crises in its balance of payments : this institution international showed an optimism, in spite of careful, as for the maintenance and acroissement of the direct foreign investments in the area in the years next, because of given economic fundamental- rate of interior saving high, qualified and flexible human resources, substantial infrastructures and access to the markets of the area- which are always acceptable and, further, attarctives. For illustrated the talk and to justify the assertion of flows of direct foreign investment are currently a very important element with the financing of the current operations for the majority of the developing countries- here, the general situation represented by some specific cases- and contribute by the development and the progress of these same country of transition, it is done necessary to post the table prepared within the IMF^115(*) which shows flows Nets of capital deprived towards the markets of the emergent countries during the Nineties.

TABLE: FLOW NETS OF CAPITAL DEPRIVED TOWARDS THE EMERGENT MARKETS, 1992-1999

(OF BILLION DOLLARS)

¹ Korea, Indonesia, Malaysia, the Philippines and Thailand.

Conclusion

The implementation of um currently tallies multilateral on the investments is shown moreover more inevitable EM.

The framework of the standards concernentes about the international investments, in spite of scattered, hold an increasing attention of the world community of the countries interested in the installation of a multilateral framework on the matter : moreover, the existing legal regulations, no matter what they are bilateral or multilateral, form a very good base on which can be based the countries concernents and future contractors.

For example, these conventional instruments into force currently, include in its legal orders the principles of non-discrimination, i.e. the principles of the national treatment and the treatment of the most favoured nation. Notwithstanding, the way in which application was implemented does not grant to the objectives paramount of a multilateral agreement : foment the total development, while taking account the needs and needs for those which are weakest, developing countries. It remains obvious that, at the time of the implementation of this multilateral framework concerning the investments, the unequal ones must be treated in an unequal way- that wants to say, with the developing countries must be granted special exemptions and prerogatives so that they can work towards their ends of development and can withdraw entry of the foreign investors and their respective investments in their territory a major quantity of benefit- so that a multilateral agreement does not come has to contribute even more to the economic shift which governs the international relations between the countries.

This being said, it does not remain any more controversy in what the range of these not-discriminatory principles relates to : it goes without saying, for example, that it remains impracticable that a principle as that of the national treatment has its range extended until the phase of the pre-establishment, which is that before the effective admission of the foreign investor in the territory of the host country. Such a practice could be used for only to increase the disadvantages of the developing countries compared to the advantages of the national foreign investors of the developed countries and beyond, while going even further, would be an attack with the prerogatives acquired by the host countries under the terms of their sovereignty to regulate and control the entry and the admission of those which he wants that settle in their territory.

The foreign investments can exestir in several forms, being one of those the direct foreign investments. Those its most important for the developing countries and its rather their object of desire : they adopt more and more internal policies which can be suitable for them, while coming an environment favorable for their admission and implementation. The explanation for this attraction that exert on the developing countries of the direct investments foreign is simple : they are the person in charge, beyond the liquid contribution of divided foreign, of more advanced technologies, the more technical training and more scientific know-how, all that being able to give a real and immediate contribution for the policy whose the developing countries of progès are followers and economic evolution. However, the benefit which can bring the direct foreign investments are not automatic and indépendentes, while remaining related to the capacity of the host country to absorb them or even type and of how long the investment remains in this country.

There does not remain any doubt that a multilateral framework of the investments can brings much benefit and advantages to its contracting parts. However, so that its objective paramount is completed, it is necessary to take into account the interests of the less strong parts, that is to say the developing countries.

It is only by the means of a true flexibility in the fields of the negotiations of this agreement that the countries puvent to lead to results honoured and righter for all the nations. It will not be sufficient to promote a vision restricte and myope of international reality, but on the contrary, it is necessary to use its potential to equally grant more advantages to all the Members. Thus, while following this line of thought, must continue the multilateral negotiations on the international investment. And is thus also that has posicioner the developing countries must continue.

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JACKSON, J.H. «The World Trading System: Law and policy off International Economic Relations.» Cambridge: The MIT Near, 1997.

JUILLARD, P. « 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.

MANGENI, F. «standard What off technology for least developed countries? », SEATINI Bulletin, vol. 4, No 4, February 28, 2001, International The South Group Network, Harare, Zimbabwe.

BRACED, C.P. « Direito ao desenvolvimento E investimentos estrangeiros. « São Paulo: Editora Oliveira Mendes, 1998.

MOLTKE, K., « Discrimination and non-discrimination in Direct Foreign Investments : Mining Exits », available on the www.natural-resources.org/minerals/development/docs_invest.htm#FDI site

NGUYEN, O., PELLET, A. «Direito Internacional Público.» Lisboa: Calouste Gulbenkian, 1992.

World organization of the Trade. Document WT/WGTI/M/2. to see www.wto.org site.

__________. Document WT/WGTI/M/4.

__________. Document WT/WGTI/W/8.

__________. Document WT/WGTI/W/11.

__________. Document WT/WGTI/W/16.

__________. Document WT/WGTI/W/22.

__________. Document WT/WGTI/W/30.

__________. Document WT/WGTI/W/34.

__________. Document WT/WGTI/W/65.

__________. Document WT/WGTI/W/75.

__________. Document WT/WGTI/W/95.

__________. Document WT/WGTI/W/104.

__________. Document WT/WGTI/W/118.

__________. Document WT/WGTI/W/122.

__________. Document WT/WGTI/W/153.

RAINELLI, Mr. «A Organização Mundial C Comércio.» Lisboa: Terramar, 1996.

REZEK, J.F. «Direito Internacional Publico.» São Paulo: Saraiva, 1998.

SHAFFER, G. «How to make argument settlement system work for developing countries: proactive sum strategies for developing countries», International Center for Trade and Sustainable Development (International Center for the trade and the bearable development), ICTSD Resource Paper No 5 of Mars 2003.

SORNARAJAH, Mr., «International The Law one Foreign Investment», Cambridge: Cambridge University Near, 1994.

THORSTENSEN, V. «OMC- Organização Mundial C Comércio: ace will regras C comércio internacional E has nova rodada negociações multilaterais.» São Paulo: Aduaneira, 2001.

World Trade Organization. Ministerial Declaration. Doha, 2001. See Internet site www.wto.org.

* 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.  »

* ³¹ For example, the first paragraph of article XVII of the GATS which lays out that «Each member will grant the services and to suppliers services of any other member um treatment not less favorable than that which it grants to sés proper similar services and sés proper suppliers of similar services. 

* ³² One of the methods of these direct investments foreign is setting-in-practical by the means of transborder fusions & acquisitions, which would explain one of the reasons of the interest growing of the attraction of those by the developing countries, once it is often through fusion & acquisitions that have observes the largest figures relating to the technology transfers and the dissemination of know-how.

* ³³ For an analysis much more deepened, to see Todd G. Bulchholz and Martin Feldstein in «  New Ideas from Dead Economists  : year introduction to modern economic thought  », NAL Books, New York, 1989 which laid out that the comparative law of the advantage in fact is a derivation of the theory of the advantage absolute concerning goods when it is possible to produce goods while using the minimun existing means that no share of other in the world  ; in accordance, the division of the most efficient labor would be setting-in-place when the States responables by the exchanges make so that the production of these goods is made within the countries which possuent an advantage absolute there.

* ³⁴ See the document of OMC WT/WGTI/W/16, available on the www.wto.org site, in which the Republic of Korea, one of the countries which propose a multilateral agreement on the investments, lays out that «  the technological development arrives in particular in two ways  : either the transfer or the diffusion of this technology, being one of the most known mechanisms of technology transfer the joints ventures. The joint ventures enre the transnational corporations and the national companies include they agreements of licencement, gérence, marketing and well even of the contracts of engineering department with the foreign partner. The effect of the technology transfer depend in particular on quality on technology transferred. The diffusion of technology is the delivery of technologies of the part of the foreign partners to the local companies. In spite of the diffusion of technoligie is a slow lawsuit, it can contribute for dissiminer an important technological know-how in all the sectors of the economy. There are studies which allotted to the IED the technological experiment of development of Korea. An investigation shows that the considerable quantity of the technology transfers was led in Korea through official channels, such as the exchange of the documents between a company mother and her subsidiary company or programs of technological drive relating to high-technology organized in a way often and ad hoc. (free translation of the author).

* ³⁵ See document WT/WGTI/W/65 available on the site of OMC, of which the www.wto.org address.

* ³⁶ For more, to see the document of OMC  : WT/WGTI/W/  118, available on www.wto.org

* ³⁷ See Francis Mangeni in «standard What off technology for least developed countries? », SEATINI Bulletin, vol. 4, No 4, February 28, 2001, International The South Group Network, Harare, Zimbabwe.

* ³⁸ Any fascinating EM always counts character intrinsically dependant of the investments compared to the trade.

* ³⁹ Any EM recalling that within the GATS, one forms of supply of services regulated by this agreement and that of the displacement of the supplier towards the consumer, which would characterize one of the methods of transborder investment.

* ⁴⁰ According to Square and Juillard, countries EM development often grant and are subjected to conditions less favorable for its poliques of development imposed by developed countries because the need which is inherent for them to attract the direct foreign investments exceeds its capacities in addition to negotiate new terms. Domenica Square and Patrick Juillard, op.cit.

* ⁴¹ Id. 29.

* ⁴² It is important to remember that within OMC, the standards and provisions concerning with the international investments exist in a way scattered and dispersed.

* ⁴³ Such as for example, the World Bank provides that in 46 years, in 2050, countries known as of the group «  BRIC  » - Brazil, Russia, India and China will sront parmis the group developed countries  ; for more reinseignements, to see the site of the World Bank to Internet site www.worldbank.org.

* ⁴⁴ Id. 29, pg. 4-5.

* ⁴⁵ Ibid

* ⁴⁶ Ibid

* ⁴⁷ Ibid

* ⁴⁸ Ibid

* ⁴⁹ In the field of the International law, the national treatment was approached in two distinct ways  : doctrines Calvo, that dsiposait that the abroads and their properties should be exempted the same type of treatment as the nationals of a country determined under the national law this country, while asking these same S foreign investors one gives up the diplomatic protection which them could be offered by its country of origin  ; and doctrines of responsibility for State, that proposed that to the foreign investors a standard internatinal minimun treatment should be offered, even if the national law of the host country in qustion would grant only laws above this standard minimun, which could entrîner a treatment more favorable to the foreign investors compared to the nationals.

* ⁵⁰ For more, to see United Nations Conference one Trade and Development, «National Treatment», in Unctad Series one Resulting in International Investment Agreements, United Nations, New York and Geneva, May 1999, the United Nations Doc. UNCTAD/ITE/IIT/11, flight. IV.

* ⁵¹ According to Konrad Von Moltke, «it parraît us almost obvious that the non-discrimination within the foreign investments is objetif desirable public policies.  » (free translation)  ; for more, to see Konrad von Moltke, «  Discrimination and non-discrimination in Direct Foreign Investments  : Mining Exits  », available on the www.natural-resources.org/minerals/development/docs_invest.htm#FDI site.

* ⁵² Like, for example, the five years deadline conceived to countries EM development, compared to that two years for the developed countries, in what the complete abolition of measurements relates to notified which do not agree with mow provisions of agreement MIC.

* ⁵³ As is the granted case of the provisions, within agreement SMC- agreement on the compensatory measures- with the developing countries while allowing that the rule prohibiting the export subsidies applies only after one transitional period eight years.

* ⁵⁴ See document OMC WT/WGTI/W/22.

* ⁵⁵ EM making a boarding didatique, the letter of article XVII of the GATS  : «  In the sectors registered in his list, and taking into account the conditions and of the 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.  »

* ⁵⁶ Such as for example those with Sweden and Norway.

* ⁵⁷ The article first of GATT 1994 lays out:  «  all advantages, favors, privileges or immunities granted by a contracting part has a product originating ouà destination in any other country will sront, immediately and without condition, extended to very produced similar originating or the territory of all the other contracting parts. This provision relates to the customs duties and the perceived impositions of any nature has the importation or with export or at the time of the import or of export, as those which strike the international transfers of the funds carried out in payment of the imports or exports, the mode of collection of its duties and impositions, the whole of the regulation and the formalities related with the imports and exports as all the qustions which are the subject of paragraphs 2 and 4 of article III.  »

* ⁵⁸ Article II of the GATS lays out: «  With regard to all the measurements covered by this agreement, each Member will grant immediately and without condition the services and to suppliers of services of any other Member a treatment not less favorable than that which it grants the similar services and to similar suppliers of services of any other country.  »

* ⁵⁹ Idem No 29.

* ⁶⁰ Ibid pg 8.

* ⁶¹ One can quote as examples article 56 of the Treaty of Establishment of the European Community which lays out on the order public, health and safety  ; article 2 of the code of OECD on Liberalizations of the Movements of capital or also article 24, paragraph 3c of the Treaty of Charter of Energy, which contains exceptions to principle NPF to maintain the order public but the protection of human health, animal or botanical.

* ⁶² Such as for example recent the negotiations for an economic co-operation between Mercosur and the European Union or between Mercosur and the ALENA.

* ⁶³ With our opinion, there only exist, as being institutions which have multilateral rules and standards on the matter of the investments, the World Organization of the Trade and the Treaty constituting the Charter of Energy.

* ⁶⁴ For seeing J. Francisco REZEK more, in «  Direito Internacional Público  », pg 226

* ⁶⁵ Id.

* ⁶⁶ It is done interesting to say here that, the European Union, beside these provisions of non-discrimination, fonctinnement requires also the adoptation of practices référentes to the good of the mutual recognition towards third countries non-members, especially in the sector of the services, which would have a report/ratio, obviously, with the transborder international investments.

* ⁶⁷ As examples of these discriminatory requirements one can quote the requisition for the nationals of a host country to hold a certain proportion of its «  equity shares  », actions of company, acquisition of a holding which would be  the object of the investment beyond the nominal actions or as in the phase of the post-establishment of an investment, a requirement of as the investment either put-in-place in a manner as or vermin with maximization of the profits in benefit of the domestic policies.

* ⁶⁸ Idem 29.

* ⁶⁹ The standard bilateral agreement of the United States on the investment in is an example. the standard bilateral agreement on the investment of the United States lays out what follows: «  With regard to the establishment, acquisition, the expansion, management, the exploitation and the sale or another alienation of the investments considered, each Part grant to the investments coming from the other a treatment not less favorable than that which it grants, in similar situations, with the investments carried out on its territory by its own nationals or companies (hereafter called «national treatment») or with the investments carried out on its territory by nationals or companies of third country («treatment of the most favoured nation»), the most favorable mode of both being applied.  »

* ⁷⁰ For an examination of this question, to see «  Admission and establishment  », UNCTAD, Collection devoted to the problems relating to the international agreements of investment, 1999.

* ⁷¹ Id. 29.

* ⁷² For seeing more document OMC WT/WGTI/W/122, called «  Submission by the European Communities  ».

* ⁷³ See Mr. Sornarajah, «International The Law one Foreign Investment», Cambridge University Near, Cambridge, the United Kingdom, 1994.

* ⁷⁴ Id. 65. Free translation.

* ⁷⁵ Id. 65.

* ⁷⁶ Ibid

* ⁷⁷ Ibid

* ⁷⁸ Ibid

* ⁷⁹ In the case of the programmes of incentive to the investment, obligation NPF would apply only to general programs of incentive aiming at the whole of a sector. It would not oblige a host country to make profit all the other foreign investors from the advantages obtained within the framework of specific arrangements, in virtue of which an advantage is granted to a foreign investor on a purely individual basis. «  Treatment of the most favoured nation  » - UNCTAD, Collection devoted to the problems relating to the international agreements of investment, 1999.

* ⁸⁰It there had recently tendency to a broader application of treatment NPF before the establishment of an investment, and thinks that the non-discrimination at this stage of the access to the markets becomes an increasingly important question for the host countries which want to attract more direct foreign investments (IED).

* ⁸¹Id. 29. «  Treatment national  » - UNCTAD, Collection devoted to the problems relating to the international agreements of investment, 1999, page  4.

* ⁸² To the governments are granted the possibility of having «  goldens shares  » on the capital of the companies controlled by foreigners, especially in the cases of fusion & transborder acquisitions, that are not only one of the methods of the direct foreign investment.

* ⁸³ This formulation or a similar type of formulation appears in the standard bilateral agreements on the investment of Germany, of Chile, of China, of France, of the United Kingdom and Switzerland. UNCTAD, «  International Investment Instruments: With Compendium  », (1996-2001), volume  III, pages  143-193.

* ⁸⁴ See document OMC WT/WGTI/W/30.

* ⁸⁵ See document OMC WT/WGTI/W/34.

* ⁸⁶ See document OMC WT/WGTI/W/75.

* ⁸⁷ For more information on this subject, to see Internet site www.sice.oas.org/bitse.asp.

* ⁸⁸For more, to see  : «  Treatment of the most favoured nation  », UNCTAD, Collection devoted to the problems relating to the international agreements of investment, 1999.

* ⁸⁹ To deepen on the subject, to see Vera Thorstensen, «OMC- A organização mundial C Comércio: ace will regras C comércio internacional E has nova rodada negociações multilaterais, 2.Ed, SP, Aduaneiras, 2001, p. 305.

* ⁹⁰ For more seeing «Submissions by the European Community, concept paper one non-discrimination», document OMC WT/WGTI/W/122, of June 22, 2002. Free translation.

* ⁹¹ Document OMC WT/WGTI/W/95.

* ⁹² Ibid pg 9.

* ⁹³ One speaks many TRIMs agreements, of the general agreement concerning the services, the GATS, of the agreements which touch the intellectual property, the Trips and the ASCM.

* ⁹⁴ For more information to see the article published for Hannes Schloemann, lawyer at Baker & named McKenzie «  WTO trade agreements  », published in the store virtual FDIMagazine, available on Internet site www.fdimagazine.com, lately checked into February 05, 2004.

* ⁹⁵ «Covered agreements» is the expression used in the Memorandum which has on the Settlements of the Disputes of the World Organization the Trade having for goal the description of the agreement under its aegis and also refers to the agreement subjected to Appendix 1 of Acoord Général.

* ⁹⁶ On this subject, to see Gregory Shaffer in «How to make argument settlement system work for developing countries: proactive sum strategies for developing countries», International Center for Trade and Sustainable Development (International Center for the trade and the bearable development), ICTSD Resource Paper No 5 of Mars 2003.

* ⁹⁷ See document OMC WT/WGTI/W/104.

* ⁹⁸ See document OMC WT/WGTI/W/153.

* ⁹⁹ Id. 91.

* ¹⁰⁰ See article 2104 of the agreement of American northern free trade which authorizes the imposition of the restrictions on the movements of capital when a part tests or is likely to have serious difficulties of balance of payments.

* ¹⁰¹ Id. 91.

* ¹⁰²As one can check well in Internet site of the Monetary Fund on the www.imf.org address, the IMF is one of the persons in charge to help the countries, in particular the developing countries that under the terms of its lower economic structures can more often be in the economic crises, to leave itself the situations there where its balance of payments would be seen having a problem  : «  one of the principal functions of the IMF is to provide loans to the countries which have difficulties of balance of payments to enable them to restore the conditions of a durable economic growth. The financial contests granted by the IMF give the possibility to the countries of reconstituting their international reserves, of stabilizing the value of their currency and of continuing to regulate their imports without having to resort to measurements of restriction on the trade or the movements of capital.  »

* ¹⁰³ See document OMC WT/WGTI/M/2.

* ¹⁰⁴ Document OMC WT/WGTI/W/65.

* ¹⁰⁵ Such being the case of OECD and the UNCTAD which quoted the studies of Maxwell Fry in «  Direct How foreign investment in Pacific Asia improves the current account  », published in Asian Economics, which shows that, in the cases that it examined, the IED initially worsened the balance on the current accounts, then improved in the long run the trade balance and the balance on the current accounts.

* ¹⁰⁶ According to document OMC WT/WGTI/W/95, for analyzing well the effects of the direct foreign investments on the balance of payments, it is necessary initially well to delimit the field of inclusion of these investments which include not only the transactions commercial and financial external of the foreign subsidiary companies but also those of the national companies which develop around them - transactions which tend to mature and to evolve/move with the wire of time.

* ¹⁰⁷ See, for example, UNCTAD, in «Direct Foreign Investment and Development», 1998.

* ¹⁰⁸ Document of Group de Travail of OMC WT/WGTI/W/95, pg. 2-3.

* ¹⁰⁹ Document WT/WGTI/W/11.

* ¹¹⁰ In 1998, for example, the entries of IED accounted for 10,5  percent of the gross fixed capital formation in Asia, 14,7  percent in sub-Saharan Africa and 16,6  percent in Latin America (UNCTAD, «  World Investment Carryforward  », 2000).

* ¹¹¹ Id. 101.

* ¹¹² Id. 101.

* ¹¹³ See document OMC WT/WGTI/W/8.

* ¹¹⁴ See document OMC WT/WGTI/M/4

* ¹¹⁵ See the IMF, in «  International Markets Capital  », September 2000.