ANNEX
The main features of the draft Multilateral Agreement
on Investment were:
Non-discrimination: parties
to the agreement, at a national and sub-national level, would
not discriminate between foreign and domestic investors (national
treatment) nor between foreign investors from different countries
(most favoured nation treatment). Foreign investors would
be offered the better of these treatments. Both de facto
as well as de jure discrimination would be banned.
Performance requirements: the
draft agreement prohibited the attachment of conditions (such
as technology transfers, local sourcing, specified export levels
or mandatory joint venture formation with local participation)
to any foreign investment except voluntary ones offered in return
for an 'advantage' provided by the host state.
Expropriation: Parties
to the agreement would provide prompt and fair compensation for
the expropriation, or measures tantamount to the expropriation,
of foreign investment.
Dispute settlement: the
agreement made provision for state Parties to the agreement, and
investors (located in Parties), to initiate claims against other
Parties and for these to be referred to international arbitration,
under terms set out in the agreement, in the event of failure
to resolve the matter by other means.
Scope: Both the making
of investments ('pre-establishment' or 'market access') and the
investment itself were covered in the draft text. Additionally
a broad definition of investment was used covering, for example,
both intellectual property and portfolio investment as well as
more traditional assets. The agreement was designed to cover Parties'
whole economies (a 'top-down' approach) subject to (a) general
exceptions (such as for national security) and (b) negotiated
country-specific exceptions (ranging from Austria's chimney sweeps
to all the USA's non-conforming measures at State level).
Continuous effort: Parties
to the agreement would commit not to reintroduce restrictions
into those sectors subject to liberalisation - 'standstill'; and
there was a presumption, rather than an obligation, that Parties
would aim towards phasing out restrictions with regard to those
sectors for which exemptions had initially been agreed - 'roll-back'.
Transparency: Parties
would be obliged to publish promptly any relevant laws, regulations,
procedures or judicial decisions as well as relevant policies.
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