موافقت نامه های سرمایه گذاری بین المللی و خدمات بازار: قفل در ناتوانى بازار

Bilateral investment treaties (BITs) and investment chapters in preferential trade agreements have become popular measures to guarantee investor-friendly policies. While they reassure multinational firms, they also constrain host country authorities in regulating markets to stimulate competition. These problems are widespread in service industries characterized by significant economies of scale. This paper presents case studies of the difficulties the Chilean regulatory authorities faced in regulating the financial services, telecom, and energy industries. It concludes that able regulators are necessary, but that international agreements need to also leave enough policy space.

Services trade and investment have become one of the most important driving forces of economic globalization. During 1974–2004, commerce in services grew from 5% to 20% of global trade and from a quarter to over 60% of the total stock of foreign direct investment (FDI) (UNCTAD, 2004a and World Trade Organization, 2004). A growing share of these transactions is covered by preferential trade agreements (PTAs), accords that reduce barriers to trade and investment between members only. A recent survey by the WTO concludes that PTAs in services are multiplying faster than any other type of trade agreement (Crawford & Fiorentino, 2005). By contrast, the General Agreement on Trade in Services (GATS) plays only a minor role for services FDI in developing countries (Hoekman, 1995 and Sauvé, 2000). Remarkably, preferential trade and investment in services remains primarily a North–South affair. Services transactions between the major economic powers EU, USA, and Japan are covered by commitments made in the WTO and the OECD. Developing countries at times include services in South–South PTAs, but with few exceptions like South Korea, Brazil, and Mexico they are still insignificant foreign investors in the sector (Ramamurti, 2001, p. 27).

This article has analyzed the interaction between investors and the host government in two service industries in Chile. As industries characterized by significant economies of scale barriers to entry, they are subject to regulation by the host government. In addition to threats of withholding investment and seeking recourse in local courts, multinational firms have used threats of international arbitration based on BITs and the investment chapters in PTAs to prevent regulation that would limit their profit. At times, the host government has given in to these threats to avoid sending negative signals to investors. These conflicts underscore the trade-off developing countries are making between guarantees offered to foreign investors and full benefits of liberalization. Although PTAs and BITs are likely to help attract FDI, they may make it more difficult for developing countries to reap the full rewards of foreign investment. The survey of lobbying in the EU–Chile and US–Chile FTA negotiations shows that multinational firms specifically sought constraints on regulatory freedom if it benefited their competitive position, but pressed for greater liberalization if they perceived barriers to market entry.