Hostname: page-component-84b7d79bbc-g7rbq Total loading time: 0 Render date: 2024-07-30T16:34:53.076Z Has data issue: false hasContentIssue false
  • English
  • Français

Protection of Domestic Investors under the WTO and International Investment Regimes

Published online by Cambridge University Press:  26 May 2020

Murilo Lubambo de Melo Open the ORCID record for Murilo Lubambo de Melo [Opens in a new window]
Murilo Lubambo de Melo*
Affiliation:
New College of the Humanities at Northeastern University, London
*
Email: m.melo@northeastern.edu
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper analyses how international economic law regulates measures aimed at the protection of domestic investors against foreign investors. It evaluates the logic of investment protectionism and assesses the incentives behind foreign entry barriers. It analyses and evaluates WTO GATS cases that dealt with the issue. It then develops a framework on how the facts of the China–Electronic Payments Panel decision could be assessed in international investment treaties. Several provisions common to those treaties would be applicable to the situation and the recent US–China Economic Agreement explicitly deals with the issue. However, adjudication under investment treaties would only be possible if some procedural conditions were present. The paper concludes that international economic law already covers a range of situations related to entry barriers to foreign investments. It also suggests that states can carefully tailor both substantive and procedural treaty rules to allow for coverage, or not, of situations involving domestic monopolies.

Type
Research Article
Information
World Trade Review , Volume 19 , Issue 4 , October 2020 , pp. 589 - 604
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Aaronson, SA (2018) What Are We Talking about When We Talk about Digital Protectionism? World Trade Review August, 1–37.Google Scholar
Afilalo, A (2013) Failed Boundaries: The Near-Perfect Correlation between State-to-State WTO Claims and Private Party Investment Rights. Jean Monnet Working Paper 01/13. New York: New York University.Google Scholar
Alexander, KW and Soukup, BJ (2010) Obama's First Trade War: The US–Mexico Cross-Border Trucking Dispute and the Implications of Strategic Cross-Sector Retaliation on US Compliance under NAFTA. Berkeley Journal of International Law 28, 313–342.Google Scholar
Bonnitcha, J (2019) Investment Wars: Contestation and Confusion in Debate about Investment Liberalization. Journal of International Economic Law 22(4), 629–654.CrossRefGoogle Scholar
Bonnitcha, J, Poulsen, LNS, and Waibel, M (2017) The Political Economy of the Investment Treaty Regime. Oxford and New York: Oxford University Press.Google Scholar
Branstetter, LG and Feenstra, RC (2002) Trade and Foreign Direct Investment in China: A Political Economy Approach. Journal of International Economics 58(2), 335–358.CrossRefGoogle Scholar
Broude, T and Moses, S (2016) A Look at the Trade in Services Agreement (TiSA) Negotiations. In Sauvé, P and Roy, M (eds.), Research Handbook on Trade in Services. Cheltenham, UKand Northampton, MA: Edward Elgar, pp. 385–411.Google Scholar
Chari, A and Gupta, N (2008) Incumbents and Protectionism: The Political Economy of Foreign Entry Liberalization. Journal of Financial Economics 88(3), 633–656.CrossRefGoogle Scholar
Cottier, T and Schneller, L (2014) The Philosophy of Non-Discrimination in International Trade Regulation. In Kamperman, SA (ed.), The Principle of National Treatment in International Economic Law: Trade, Investment and Intellectual Property. Cheltenham: Edward Elgar, pp. 3–33.Google Scholar
Davies, K (2013) China Investment Policy: An Update. OECD Working Papers on International Investment. www.oecd-ilibrary.org/finance-and-investment/china-investment-policy_5k469l1hmvbt-en.Google Scholar
Davis, B (2018) US Wants to Retaliate against China's Restrictions on American Tech Firms. Wall Street Journal, 17 April 2018, sec. Politics. www.wsj.com/articles/u-s-is-examining-ways-to-retaliate-against-chinese-restrictions-on-u-s-tech-companies-1523910784.Google Scholar
Djankov, S, La Porta, R, Lopez-de-Silanes, F, and Shleifer, A (2002) The Regulation of Entry. The Quarterly Journal of Economics 117(1), 1–37.CrossRefGoogle Scholar
Echandi, R (2011) What Do Developing Countries Expect from the International Investment Regime? In Alvarez, JE and Sauvant, KP (eds.), The Evolving International Investment Regime: Expectations, Realities, Options. Oxford: Oxford University Press.Google Scholar
Fox, EM (2006) The WTO's First Antitrust Case – Mexican Telecom: A Sleeping Victory for Trade and Competition. Journal of International Economic Law 9(2), 271–292.Google Scholar
Gari, G (2016) Services Negotiations: Where Have We Been and Where Are We Heading? In Sauvé, P and Roy, M (ed.), Research Handbook on Trade in Services. Cheltenham: Edward Elgar, pp. 579–609.Google Scholar
Grossman, GM and Helpman, E (1996) Foreign Investment with Endogenous Protection. In Feenstra, RC, Grossman, GM, and Irwin, D (eds.), The Political Economy of Trade Policy: Papers in Honor of Jagdish Bhagwati. Cambridge, MA and London: MIT Press, pp. 199–223.Google Scholar
Haskel, J and Westlake, S (2017) Capitalism without Capital: The Rise of the Intangible Economy. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Hoekman, B and Meagher, N (2014) China – Electronic Payment Services: Discrimination, Economic Development and the GATS. World Trade Review 13(2), 409.10.1017/S1474745614000068CrossRefGoogle Scholar
Hoekman, B and Sabel, C (2017) Trade Agreements, Regulatory Sovereignty and Democratic Legitimacy. EUI Working Paper – Robert Schuman Centre for Advanced Studies 2017/36. EUI Working Paper – Robert Schuman Centre for Advanced Studies. Italy.Google Scholar
Kharpal, A (2019) Tourists to China Can Finally Use the Country's Massively Popular Mobile Payment Systems. CNBC, 6 November 2019. www.cnbc.com/2019/11/06/alipay-wechat-pay-allow-tourists-in-china-to-use-foreign-cards.html.Google Scholar
Kurtz, J (2016) The WTO and International Investment Law: Converging Systems. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Lu, Y, Tao, Z, and Zhu, L (2017) Identifying FDI Spillovers. Journal of International Economics 107(July), 75–90.Google Scholar
Lubambo, M (2016) Is State-State Investment Arbitration an Old Option for Latin America? Conflict Resolution Quarterly 34(2), 225–247.CrossRefGoogle Scholar
Lubambo, M (2020) Entry Rights and Investments in Services: Adjudicatory Convergence between Regimes? In Gáspár-Szilágyi, S, Behn, D, and Langford, M, Adjudicating Trade and Investment Disputes: Convergence or Divergence? Studies on International Courts and Tribunals. Cambridge: Cambridge University Press, pp. 92–118.CrossRefGoogle Scholar
Lucas, L (2017) Race for China's $5.5tn Mobile Payment Market Hots Up. Financial Times, 1 May 2017. www.ft.com/content/e3477778-2969-11e7-bc4b-5528796fe35c.Google Scholar
Mattoo, A (1997) National Treatment in the GATS: Corner-Stone or Pandora Box. JWT 31(1), 107–135.Google Scholar
Morris, J, Hassard, J, and Sheehan, J (2002) Privatization, Chinese-Style: Economic Reform and the State-Owned Enterprises. Public Administration 80(2), 359–373.CrossRefGoogle Scholar
Oatley, T (2016) International Political Economy. 5th edn. Routledge.Google Scholar
Pohl, J (2018) Societal Benefits and Costs of International Investment Agreements. OECD Working Paper on International Investment 2018/01. Paris: Organisation for Economic Cooperation and Development.Google Scholar
Puig, S (2014) International Regime Complexity and Economic Law Enforcement. Journal of International Economic Law 17(3), 491–516.CrossRefGoogle Scholar
Qin, JY (2019) Forced Technology Transfer and the US–China Trade War: Implications for International Economic Law. Journal of International Economic Law 22(4), 743–762. https://doi.org/10.1093/jiel/jgz037.CrossRefGoogle Scholar
Ramamurti, R (2001) The Obsolescing Bargaining Model? MNC-Host Developing Country Relations Revisited. Journal of International Business Studies 32(1), 23–39.CrossRefGoogle Scholar
Rodrik, D (2018) What Do Trade Agreements Really Do? Journal of Economic Perspectives 32(2), 73–90.CrossRefGoogle Scholar
Salacuse, JW (2015) The Law of Investment Treaties. 2nd edn. The Oxford International Law Library. Oxford: Oxford university Press.Google Scholar
Sornarajah, M (2017) The International Law on Foreign Investment. 4th edn. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Stephenson, S and Hufbauer, GC (2016) Services and State-Owned Enterprises. In Sauvé, P and Roy, M. (eds.), Research Handbook on Trade in Services. Cheltenham, UK; Northampton, MA: Edward Elgar, pp. 299–330.Google Scholar
Wei, L and Deng, C (2018) American Express Is Ready to Charge Into China. Wall Street Journal, 26 April 2018. www.wsj.com/articles/american-express-advances-in-effort-to-access-china-market-1524668149.Google Scholar
Weiler, T (2013) The Interpretation of International Investment Law: Equality, Discrimination, and Minimum Standards of Treatment in Historical Context. International Litigation in Practice, vol. IV. Boston: Martinus Nijhoff Publishers.Google Scholar
Willemyns, I (2016) Disciplines on State-Owned Enterprises in International Economic Law: Are We Moving in the Right Direction? Journal of International Economic Law 19(3), 657–680.CrossRefGoogle Scholar
Wint, AG and Williams, DA (2002) Attracting FDI to Developing Countries. International Journal of Public Sector Management. September. www.emerald.com/insight/content/doi/10.1108/09513550210435719/full/html.Google Scholar
Zang, MQ (2015) The Uncompleted Mission of China – Electronic Payment Services: Policy Equilibrium between Market Access and National Treatment under the GATS. Manchester Journal of International Economic Law 12(1), 16–32.Google Scholar