Eglin TablePost Establishment Treat’t Pre-establishment Treat’t

MFN

National treatment

Transparency

Development provisions

Balance of payments safeguards

Exceptions

Others

MFN

National treatment

Transparency

Development provisions

Balance of payments safeguards

Exceptions

Others

Application to FDI Application to FDI

Portfolio Investment Portfolio Investment

Reactions to Eglin Table

• The starting point is the status quo approach of the rights of the investor

• Balancing elements, Doha elements, addressed in that primary context

• State and public interests, public welfare issues developed more as exceptions than as primary rights

Is there an alternative? (1)

• Alternative purpose and objective:– Investment Agreement for Sustainable

Development– Not new to international law or WTO:

• In keeping with WTO preamble• Appellate Body decisions on relation of concept of

sustainable development to WTO rights and obligations

• Investment rights and obligations must address the full relationship between an investment and the host state/community

Is there an alternative? (2)• Three co-equal, inter-related subjects of rights and oblig’s

Actor Pre-estab’t Post-estab’t

Foreign Investor(definitions, portfolio?, scope of activity covered)

-rights

-obligations

-rights

-obligations

Host state -rights

-obligations

-rights

-obligations

Home state -rights

-obligations

-rights

-obligations

Foreign InvestorFor. Inv’r Pre-estab Post-estab

Rights

Scope of right of establishment

National treatment

MFN ??

Min. standards of treatment/Transparency

Performance requirements?

Others ??

National Treatment

MFN ??

Minimum standards of treatment/Transparency

Performance requirements?

Expropriation

Repatriation, staffing

Others ??

Obligations

-common minimum

floor

•Minimum standards in:

-Env’t impact assessment

-Anti-corruption

-Full disclosure of purposes, history

•Minimum standards in:

-Environmental management

-International env’t standards

-Anti-corruption

-Corporate accountability

-Compliance w/national laws

-Basic human rights

-Core labour standards•Liability of the investor and investment

Host StateHost State Pre-estab Post-estab

Rights

-Maintain development priorities

-Performance requirements (market disciplines)

-To establish high environmental/human health standards

-Maintain development priorities as agreed, under law

-Right to regulate in public interest (public welfare, environment, etc.)

Obligations

-Establish transparent legal and administrative processes

-Anti-corruption

-Not to reduce environmental standards to attract investment

-Prevent subversion of MEA’s, int’l labour standards

-Not to reduce standards to maintain investment

-Non-discrimination, pay for expropriated property, due process, etc.

-Prevent subversion of MEAs, int’l labour standards

Home StateHome state Pre-estab Post-estab

Rights

-Promote agreed terms -Assist investors

-Subrogation of rights

-State-state disputes

Obligations

-Respect for basic norms of sustainable development

-Anti-corruption obligations

-Assist host states in institutional development

-Respect for basic norms of sustainable development

-Ensure impediments to liability of investor are removed

-Anti-corruption obligations

Dispute resolution• Exhaustion of local remedies

– Stronger support to domestic institution building

• State-state• Investor-state:

– based on balanced substantive law

• Principles– Transparency

• open to public at all phases; amicus

– Accountability• In choice of arbitrators• Appellate process

– Legitimacy: comes from all of above