Investing in development: Between bilateralism and WTO law

Ana-Maria Petrescu

Student thesis: Master thesis

Abstract

In a post-crisis context characterized by renewed multilateralism, investment related concerns, the need for international regulation and a development conscious international community, an unresolved issue resurfaced: Which way ahead for international investment law? Should it try to improve the current patchwork of Bilateral Investment Treaties (BITs) or should the negotiation of a development friendly Multilateral Investment Agreement (MIA) at the WTO be attempted at? Answering the question requires an integrated approach that analyses both bilateralism and multilateralism, which takes into account previous attempts (e.g. OECD’s Multilateral Agreement on Investment) and explanations for their failure, looking at possible future actions (an MIA at the WTO) and trying to understand their developmental implications. Although theories addressing the bilateralism vs. multilateralism debate are inconclusive as to which of the two is preferable, history shows BITs were resorted to given the failure of attempts at multilateral lawmaking. They were thus considered second best options and states constantly sought to replace them with an MIA. Since BITs are a suboptimal form of investment regulation, a multilateral agreement that creates coherence in international investment law is necessary. Using the example of the MAI, it is shown that the failure of previous attempts at such a multilateral agreement were due to national sensitivities and anti-globalization fears, thus, provided these causes are acknowledged and addressed within the negotiation of an MIA, the success of such an agreement is likely. And since investment is already addressed at the WTO, building on the existing investment provisions in WTO law so as to conclude an MIA appears logical. Since the MIA is also preferable development wise and, despite its temporary suspension, a goal most likely not given up on any time soon, it seems plausible to state that the negotiation of a development friendly multilateral legal framework for international investment at the WTO should be attempted at.

EducationsMSc in International Business and Politics, (Graduate Programme) Final Thesis
LanguageEnglish
Publication date2010
Number of pages82