Multilateral Agreement on Investment

The Multilateral Agreement on Investment (MAI) was a draft agreement negotiated between members of the Organisation for Economic Co-operation and Development (OECD) in 1995–1998. Its ostensible purpose was to develop multilateral rules that would ensure international investment was governed in a more systematic and uniform way between states. When its draft became public in 1997, it drew widespread criticism from civil society groups and developing countries, particularly over the possibility that the agreement would make it difficult to regulate foreign investors. After an intense global campaign was waged against the MAI by the treaty's critics, the host nation France announced in October 1998 that it would not support the agreement, effectively preventing its adoption due to the OECD's consensus procedures.

Background

International direct investment has been taking place in various forms and to different degrees for over a century.^[1] Attempts to establish a framework for the protection of foreign investments dates back to the 1920s, most notably negotiating a League of Nations draft convention.^[2] Starting from the second half of the twentieth century, the investment protection was developed through the bilateral investment treaties, which are signed between two countries and which state the desired conditions under which investment can take place between them. The first BIT, between West Germany and Pakistan, was signed in 1959^[3] and their numbers have grown steadily since then, although research suggests that BITs do little to increase foreign investment.^[4] In 1965, the International Centre for Settlement of Investment Disputes (ICSID) was established in the framework of the United Nations, and in 1967, the OECD prepared the Draft Convention on the Protection of Foreign Property although this was not adopted.^[2]

The number of bilateral investment agreements increased rapidly during the 1990s as countries and investors sought more regulation for security, certainty and mobility for their investments after it became clear that the Uruguay Round's Agreement on Trade Related Investment Measures (TRIMS), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and General Agreement on Trade in Services (GATS) addressed only part of investment-related concerns and did not provide enough security for investors nor strong controls on host governments to regulate multinational corporations.^[5] In addition to these instruments, in 1992 the World Bank adopted Guidelines on the Treatment of Foreign Direct Investment.^[6] In 1994 the Energy Charter Treaty provided an example of a multilateral investment agreement, though limited to the energy sector.

Many critics ^[7] argued that the OECD, as an organization made up solely of rich countries, was more susceptible to direct influence by transnational corporate forces than alternative fora with more universal membership such as United Nations Conference on Trade and Development (UNCTAD) and the World Trade Organization (WTO). This argument did not deter OECD nations from proceeding, because they reasoned that poorer countries would have no option than to adopt the MAI once it had been entrenched.^[8] The OECD was eventually obliged to agree, and shift its focus to the WTO, following the MAI's collapse on France's defection.^[8]

Purposes and provisions

While authorizing the negotiations, the OECD Ministerial Council aimed to reach a "broad multilateral framework for international investment with high standards for the liberalization of investment regimes and investment protection and with effective dispute-settlement procedures."^[5] The aim was to create more consistent, secure and stable investment conditions and to regulate investment in a more uniform, transparent and enforceable manner. Although the agreement was to be negotiated between the member states, the intention was to have an open-agreement which non-OECD members could accede on a negotiated basis.^[2]

According to MAI supporter Sergio Marchi, one of the main purposes of the agreement was to eliminate the "patchwork" of investment rules enshrined in the then-1300+ bilateral investment treaties. Contrary to many critics, he argued that the MAI would help prevent "races to the bottom" that would undermine high standards of Canadian regulation.^[9] More specifically, the agreement would:

• Minimise the diverse state regulations in governing the conditions under which investments by foreign corporations could take place. (In this connection, the agreement embodied acceptance of a compliance regime under which liberalization must proceed forward with no ability to be wound back — the so-called ratchet effect. This would be enforced by so-called rollback and standstill provisions, to ensure that investors would have access to markets. These provisions required nations to eliminate regulations that violated MAI provisions — either immediately or over a set period of time — and to refrain from passing any such laws in the future.)^[10]
• Enable compensation to corporations for proven unfair or discriminatory investment conditions causing loss of profit.
• Allow states and corporations recourse to international arbitration (for instance, through the International Centre for Settlement of Investment Disputes) to settle any disputes arising under the agreement,^[11] instead of national courts in the host state.

The MAI was supported by both the Business and Industry Advisory Committee to the OECD (BIAC) and the Trade Union Advisory Committee to the OECD (TUAC). While BIAC was interested in stable and consistent treatment of investment, TUAC was interested on setting standards on employment and industrial relations.^[5]

Negotiations

The negotiations on the Multilateral Agreement on Investment were formally launched by the OECD's Ministerial Council in May 1995 and they commenced in September 1995.^[5][12][13] The negotiations were carried out by a high-level negotiating group consisting of officials from the OECD member states, but working outside the OECD committee structure consulting with the non-member countries. The chairperson of the negotiating group was Frans Engering (Netherlands) and vice-chairpersons were Al Larson (United States) and A. Saiki (Japan).^[2] The target deadline to finish the negotiations, set by the OECD Ministerial Council, was mid-1997.^[5]

There was little public awareness of the details of MAI negotiations until a draft of the agreement was leaked in March 1997.^[14] The leaked material prompted criticism from different NGOs globally. As a result, the negotiations failed in 1998 when first France and then other countries successively withdrew after pressure from a global movement of NGOs, citizens' groups and a number of governments of developing countries. In April 1998, the negotiations were formally suspended for six months.^[2] On 3 December 1998, the OECD announced that "negotiations on the MAI are no longer taking place".^[15]

Protest movement

International protestation against the MAI soon became historically celebrated as the first-ever example of successful mass-activism deploying the Internet, which was central in both gathering information and promulgating critical material among members of a vast worldwide network—which came to style itself as a "coalition" after adopting a few simple and coherent objectives. The unified global campaign relied heavily on internet communications—the first time that the new technology had been deployed on a large scale both to coordinate information and to channel protest communications to devastating effect. The movement significantly placed the most influential mass media and politicians in the context of having vested interests. Such conventional oracles were largely sidelined in favour of direct and detailed reportage of sources to the exclusion of corporate "spin". The separate, non-commercial interests of international civil society were loudly proclaimed. As ruefully acknowledged by their opponents, the activists had the advantage of highly qualified, eloquent leaders and were able to use the new internet technology to devastating effect.

Active opposition

According to Theodore H Cohn in Global Political Economy Theory and Practice (2005), "[t]he most effective opposition to the MAI was launched by a wide-ranging coalition of civil society NGOs. These NGOs argued that the MAI would threaten protection of human rights, labor and environmental standards, and Least Developed Countries. A particular concern was that the MAI would result in a 'race to the bottom' among countries willing to lower their labor and environmental standards to attract foreign investment. The origin of organised opposition was traced by Katia Tieleman in her 2000 UN case study:

[T]he start of the opposition against the MAI can be traced back to a couple of individuals, [who] remained the leading figures in its further development. By the end of 1996, Martin Khor, Director of the Third World Network based in Malaysia, obtained a document prepared for the OECD Ministerial meeting of May 1995 as well as for future WTO negotiations by the European Commission (Commission of the European Communities 1995: A Level Playing Field for Direct Investment World Wide, March 1, Brussels). From the document, Mr. Khor understood that multilateral investment negotiations, which his organisation as part of a large coalition opposed at the WTO, might be ongoing at the OECD. He informed some NGO colleagues, among whom was Tony Clarke, Director of the Polaris Institute in Canada.

Tony Clarke managed to get a copy of the MAI draft. After turning "the text into a readable document and adding an analysis and interpretation" [sourced to interview with Tony Clarke, Brussels, April 28], he posted it to an international email distribution list about globalisation called le Forum international sur la globalisation in February 1997. In the United States, the NGO Public Citizen Global Watch put the draft on its web page. Lori Wallach, a graduate of Harvard Law School, became one of the strongest leading organisers of the international campaign against the MAI. Building on the credibility of her status as a lawyer, she transformed the legal OECD documents into accessible wording, often "ready for use" in the subsequent NGO campaigns. Her role as provider of information combined with her role as provider of explanation gave her a power-position in the campaign. She would launch the campaign under the name of the "Dracula Strategy" implying that simply exposing the MAI project to the light would be sufficient to kill it (sourced to an interview with Susan George). NGOs showed that they were well interconnected. In no time, the document was distributed and action was taken in different parts of the world. The campaign against the MAI was born.^[16]

Using a variety of websites, NGOs mobilized a strong and diverse opposition composed of human rights groups, labor and environmental groups, and consumer advocates.^[17][18]

Arguments

MAI opponents pointed to a perceived threat to national sovereignty and democracy and argued that it would involve participating nations in a "race to the bottom" in environmental and labor standards. The MAI prompted criticism that it appeared to establish a new body of universal investment laws to guarantee corporations excessive powers to buy, sell and undertake financial operations all over the world, severely diluting national laws, e.g., on environmental protection, regulation of labour standards and human rights established in developed countries. By their arguments, the draft proposed a North American Free Trade Agreement-style offshore dispute-resolution tribunal in which corporations could sue governments if legislation, e.g., for national health, labor or environment, threatened their interests or were considered to expropriate actual or potential assets and/or profits.^{[citation needed]}

Prominent MAI critic Mark Vallianatos (Friends of the Earth) argued that:

• The MAI would restrict governments' ability to limit the participation of foreign multinationals in sectors they deemed critical, whether for developmental, environmental or other reasons. "For example," he wrote, "the Philippines currently bans foreign investment in rural banking, and Honduras limits foreign investors in forestry to a minority stake. Such protective measures would not be allowed under the MAI as it is currently written."

• The agreement would establish the principle of "national treatment" (in which government must treat foreign companies as favorably as domestic companies) as the norm for international investment. Indeed, in some cases, foreign corporations might have stronger protections than domestic investors. "The MAI bars many types of performance requirements, or conditions, even if those conditions are imposed on local companies. Examples of forbidden conditions include requiring investors to form a partnership with a local company and requiring a minimum number of local employees — the types of policies governments use to help ensure that local people benefit from foreign investment."

• "The MAI matters because its rules can be enforced. If a foreign investor thinks a country where it has invested is violating the MAI, the investor has a choice: to complain to its own government, which can take the host country to binding international arbitration, or to directly challenge the host country. In either case, the arbitration process is closed — citizens cannot participate — and one-sided, as neither governments nor affected communities can challenge the behavior of investors. This imbalance points out the MAI’s fundamental flaw: despite the need for corporate accountability in the international economy, current versions of the MAI contain no binding obligations on corporate investors." ^[19]

Some component country campaigns

Canada

A strong campaign was mounted by Maude Barlow and many other contributors to the MAI-NOT newsgroup^[20][21] with the active backing of the Council of Canadians which had earlier mounted active opposition to the 1994 North American Free Trade Agreement (NAFTA) between the USA, Canada and Mexico. The Canadian newsgroup was one of several powerful email vehicles for the international campaign.

In Montreal, on May 25, 1998, the Montreal Conference on Globalized Economies was nonviolently blockaded for five hours by hundreds of activists in what was called Operation SalAMI,^[22] based on the French acronym of the proposed agreement, AMI, referring not only the sausage, but also to a "dirty friend". Operation SalAMI demanded that Canada withdraw from the negotiations on the M.A.I. The presence of one key MAI player, Donald Johnston (General Secretary of the OECD) at the conference helped to focus the action, one of the three most important anti-MAI events in the world. These mobilizations on an international scale actually led to the shelving of the agreement. The award-winning documentary "Pressure Point - Inside the Montreal Blockade"^[23] recorded the drama of this action where 100 people were arrested.

United States

A strong campaign was led by Lori Wallach of Public Citizen's Global Trade Watch, and a coordinated network ("50 Years is Enough') including Friends of the Earth, the Alliance for Democracy, Witness for Peace, the Sierra Club, the Preamble Center, the Democratic Socialists of America and other groups.^[24]

Australia

In November 1997, the Australian Broadcasting Corporation's radio programme 'Background Briefing' presented the Quiet Debate—a report about the silence of the Australian government and media on an issue which was arousing fierce controversy in the USA, Britain, Canada and New Zealand. However, Australian activists, including members of Pauline Hanson's One Nation were already studying the leaked MAI draft and corresponding with the Canadian email discussion group MAI-NOT while deciding how to organise a national campaign to link with those of other countries. In January 1998 a national 'STOP MAI' coalition was formed to research issues, lobby parliamentarians and conduct public meetings.^[25] In November 1998, prior to the opening of OECD negotiations in Paris, the coalition delivered to the meeting's chairman and to the Australian prime minister a protest letter endorsed by over 500 organisations and individuals. The letter was reinforced by a prominent advertisement in The Australian newspaper on 11 November^[26]

France

France's withdrawal followed consideration of a report on the negotiations drawn up by a French MEP, Catherine Lalumière. After receiving this report, prime minister Lionel Jospin addressed the Assemblée Nationale on 10 October 1998 and announced his decision to withdraw. He said the Lalumière Report had identified a number of fundamental problems with the agreement, particularly relating to matters of national sovereignty. Madame Lalumière had also concluded that so many reservations were being incorporated into the agreement that any value for French investors would be limited. M. Jospin noted that, in February 1998, the French government had identified respect for cultural differences as a requirement for French support for the agreement.^[27]

Of equal or greater significance was the importance accorded by Mme. Lalumière to the global protest movement which at that time she attributed to the work and influence of NGOs:—

For the first time, one is seeing the emergence of a global civil society represented by NGOs which are often based in several states and communicate beyond their frontiers. This evolution is doubtless irreversible. On one hand, organisations representing civil society have become aware of the consequences of international economic negotiations. They are determined to leave their mark on them.

Furthermore, the development of the internet has shaken up the environment of the negotiations. It allows the instant diffusion of the texts under discussion, whose confidentiality becomes more and more theoretical. It permits, beyond national boundaries, the sharing of knowledge and expertise. On a subject which is highly technical, the representatives of civil society seemed to us perfectly well informed, and their criticisms well argued on a legal level.^[28]

Mme. Lalumière argued, however, that France should continue to pursue further liberalisation of investment régimes though not in the OECD. "On the one hand, under these conditions it would be impossible to achieve the balancing of the concessions demanded by the firms and, on the other, the objections of the opponents would be just as fierce."^[28] France was followed by a succession of other nations including Canada and Australia whose governments had been under relentless pressure from civil society to abandon or radically revamp the MAI.

Subsequent developments

Proponents of MAI (such as the U.S., Canada, and several EU members) continue to promote similar to MAI investment provisions through regional trade agreements, bilateral investment treaties, bilateral free-trade agreements and discussion at the World Trade Organization to be incorporated into the General Agreement on Trade in Services. Before the end of 1998, the UK trade minister Brian Wilson began to announce that investment negotiations could be shifted to the WTO.^{[citation needed]} A senior treasury officer, cited in a 1999 Australian parliamentary report, stated that "any future work on the matter known as the MAI needed to address the OECD Ministers' requirement to protect the sovereign right to regulate and to ensure citizens were not harmed by efforts to liberalise foreign investment. There was also a need to continue to engage 'civil society', and to expand participation in the process by countries that were not members of the OECD".^[29]

An attempt was made to insert the investment agenda into a new "Millennium Round" of trade liberalisation talks to be hosted by the World Trade Organization (WTO).^[30] This was to lead to the historic 'Battle of Seattle' protest actions in November 1999.^{[citation needed]} At the WTO Ministerial in Cancún in September, 2003, a group of more than twenty developing countries united to block the inclusion of the Singapore issues, including investments, in the Doha Round of trade talks.^[31] One basis of such opposition is outlined in a critical analysis prepared for Canadian universities.^[32]

The OECD promotes the Declaration on International Investment and Multinational Enterprises and the OECD Guidelines for Multinational Enterprises, last revised in 2000. In addition, from May 2006, the OECD has promoted a non-binding set of "good practices" for attracting investment, known as The Policy Framework for Investment (PFI).^[33]

See also

• Foreign direct investment
• United Nations Conference on Trade and Development

References

1. ^ Lipson, Charles (1995). Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries. Studies in international political economy. 11. University of California Press. p. ?. ISBN 9780520034686. http://books.google.com/?id=_njbNw5Ekp0C. 
2. ^ ^{a b c d e} Picciotto, Sol (1998). "Linkages in International Investment Regulations: the Anatomies of the Draft Multilateral Agreement on Investment" (PDF). University of Pennsylvania Journal of International Economic Law 19 (3): 731–768. http://www.lancs.ac.uk/staff/lwasp/linkages.pdf. Retrieved 2010-01-16. 
3. ^ Dolzer, Rudolf; Stevens, Margrete; Disputes, International Centre for Settlement of Investment (1995). Bilateral investment treaties. Martinus Nijhoff Publishers. p. 1. ISBN 9789041100658. http://books.google.com/?id=u2CF6a6yvCoC&pg=PA1. 
4. ^ Hallward-Driemeier, Mary (June 2003) (PDF). Do Bilateral Investment Treaties Attract FDI? Only a bit...and they could bite. World Bank Policy Research Paper № 3121. World Bank. p. 9. http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2003/09/23/000094946_03091104060047/Rendered/PDF/multi0page.pdf. Retrieved 2010-01-16The author notes that Brazil has never signed a BIT. 
5. ^ ^{a b c d e} Witherell, William H. (1995). "The OECD Multilateral Agreement on Investment" (PDF). Transnational Corporations (United Nations Conference on Trade and Development) 4 (2): 1–14. ISSN 1014-9562. http://www.unctad.org/en/docs/iteiitv4n2a2_en.pdf. Retrieved 2010-01-16. 
6. ^ Sornarajah, M. (2004). The international law on foreign investment. Cambridge University Press. p. 291. ISBN 9780521545563. http://books.google.com/?id=dJdjXzvjJqwC&pg=PA137. 
7. ^ E.g., Chomsky N. Domestic Constituencies Z Magazine May 1998, at chomsky.info^{[unreliable source?]}
8. ^ ^{a b} Chomsky N. The Truth about Trade Boulder Weekly May 14, 1998 at chomsky.info^{[unreliable source?]}
9. ^ Marchi, Sergio (1997-11-10). "The MAI Debate: YES: Canada Needs Clear Investment Rules". Montreal Gazette: B3. 
10. ^ Mechanisms for standstill, rollback and listing of country specific reservations Note by MAI Negotiating Group chairman, OECD, 15 February 1996
11. ^ OECD, Negotiating Group on the Multilateral Agreement on Investment, Draft Consolidated Text of 11 February 1998, document DAFFE/MAI (98)7, pp. 58-64.
12. ^ Geddes, John (1995-05-19). "Opening the Gates to Capital". Financial Post: 14. 
13. ^ Geiger, Rainer (1998). "Towards a Multilateral Agreement on Investment". Cornell International Law Journal 31 (467). ISSN 0010-8812. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/cintl31&div=19&id=&page=. Retrieved 2010-01-16. 
14. ^ Smythe, Elizabeth (1998). "Your Place or Mine? States, International Organizations and the Negotiation of Investment Rules" (PDF). Transnational Corporations (United Nations Conference on Trade and Development) 7 (3): 112. ISSN 1014-9562. http://www.unctad.org/en/docs//iteiit9v7n3_en.pdf. Retrieved 2010-01-16. 
15. ^ Neumayer, Eric (1999). "Multilateral Agreement on Investment: Lessons for the WTO from the failed OECD-negotiations" (PDF). Wirtschaftspolitische Blätter 46 (6): 618–628. http://www.lse.ac.uk/collections/geographyAndEnvironment/whosWho/profiles/neumayer/pdf/Article%20in%20WiPo.pdf. Retrieved 2010-01-16. 
16. ^ Tieleman K The failure of the Multilateral Agreement On Investment (MAI) and the Absence of a global public policy network(2000)
17. ^ Cohn, Theodore H. (2005). Global Political Economy Theory and Practice. ISBN 0321088735.  p. 350
18. ^ Taglieri, Joe (October 9 1998). "Making profit the world's highest law; the Organization for Economic Cooperation and Development's 1998 draft of the Multilateral Agreement on Investment National". Catholic Reporter 34 (43): 3. ISSN 0027-8939. http://www.igottheconch.com/index.php?title=Multilateral_Agreement_on_Investment. 
19. ^ Mark Vallianatos (Friends of the Earth), July, 1997. From the IRC (International Relations Center) [1]
20. ^ MAI NOT newsgroup Archived 1999 website
21. ^ See link in External Links section to access archived 1997-99 postings
22. ^ Operation SalAMI
23. ^ "Pressure Point - Inside the Montreal Blockade"
24. ^ Lisa McGowan MAI: NAFTA on Steroids Economic Justice News v.1 No.1, January 1998
25. ^ 1999 campaign brief
26. ^ Copy for Stop MAI's advertisement
27. ^ UK Parliament Select Committee on European Scrutiny
28. ^ ^{a b} Lalumiere Report in English at webcitation.org
29. ^ Parliament of Australia, Joint Standing Committee on Treaties, Report 18 (MAI)[2] page 3, para 1.12
30. ^ C de Brie, Watch Out for MAI Mark Two, Le Monde diplomatique, May 1999 [3]
31. ^ Gatdula J. "Poor countries still don't have better market access (Cancun aftermath)," BusinessWorld, December 1, 2003, p. 22.
32. ^ Clift, R. Background Paper on the General Agreement on Trade in Services (GATS) and Post-Secondary Education in Canada (29 November 1999) Online version
33. ^ The Policy Framework for Investment (PFI) at OECD Directorate for Financial and Enterprise Affairs (Accessed 8 June 2008.)

External links

• "Multilateral Agreement on Investment: Draft Texts and Commentary". http://www1.oecd.org/daf/mai/htm/2.htm.  - Official drafts at various stages of the final year's negotiations

• "Official OECD MAI document database". http://www1.oecd.org/daf/mai/index.htm.  - In February 2002, the OECD released a large quantity of documents relating to the negotiations
• "The Lalumière Report in English". http://webcitation.org/5knuYvqH2.  - Non-official online translation of the report which advised the withdrawal of France from the OECD negotiations it was hosting in Paris
• "Multilateral Agreement on Investment". http://www.globalpolicy.org/globalization/globalization-of-the-economy-2-1/multilateral-agreement-on-investment-2-5.html.  - at Global Policy Forum - a summary and update, with collection of links and resources
• "MAI–The Quiet Debate". http://www.abc.net.au/rn/backgroundbriefing/stories/1997/10507.htm.  - Australian Broadcasting Corporation's excellent 1997 introductory radio presentation
• "A civil-society perspective". Archived from the original on 2007-07-01. http://web.archive.org/web/20070701005527/http://www.redpepper.org.uk/intarch/xmai3.html.  - from UK independent journal Red Pepper
• "Discussions—flora.mai-not". http://groups.google.com/group/flora.mai-not/topics?start=39901&sa=N.  - The 1997-99 MAI-NOT Newsgroup (archive)