Paradoxo: Alemanha cetica quanto a clausula investidor-Estado num possivel acordo EUA-UE de livre comercio

Realmente é um paradoxo: a Alemanha foi o país que deu à partida aos acordos bilaterais de promoção e de proteção aos investimentos estrangeiros, no final dos anos 1950, quando o acordo sobre a Organização Internacional de Comércio, saída da Carta de Havana (1948), e que tinha provisões sobre investimento, não tinha a menor perspectiva de ser aprovada, e que não havia nada para proteger investimentos diretos estrangeiros.
O Brasil, sempre atrasado nesse plano, nunca fez nenhum, e os poucos que foram feitos sob FHC e Itamar, inclusive com a assinatura do então chanceler, e futuro chanceler de Lula, foram obstados pelo PT e retirados do Congresso, deixando o Brasil sem qualquer proteção, inclusive para si mesmo. Não por outra razão, a Petrobras investiu na Bolívia através de sua holding registrada nos Países Baixos, país que tinha acordo de investimentos com a Bolívia.
Mas, quando da expropriação da Petrobras por Evo Morales em 2006, Lula IMPEDIU, sim impediu, a Petrobras de processar a Bolívia, como era seu direito, ao abrigo desse acordo. Conclusão, ela perdeu milhões, com a conivência companheira.
Agora, é estranho ver a Alemanha recuar diante desse tipo de cláusula, quando ela é feita para proteger suas empresas.
Este importante artigo explica um pouco as razões.
Paulo Roberto de Almeida

Columbia FDI Perspectives
Perspectives on topical foreign direct investment issues
No. 132   October 13, 2014
Editor-in-Chief: Karl P. Sauvant (Karl.Sauvant@law.columbia.edu)
Managing Editor: Adrian P. Torres (adrian.p.torres@gmail.com)
Germany, the Transatlantic Trade and Investment Partnership and investment-dispute settlement: Observations on a paradox
by
Ralph Alexander Lorz*

The Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the European Union (EU) and the United States (US) could become the most comprehensive international agreement on free trade and investment protection. The negotiations have mostly been met with the usual criticism that accompanies attempts to expand free trade, despite overwhelming evidence that free trade fosters global economic development.

But the debate, especially in Germany, has taken a surprising and critical turn, focusing on the investor-state dispute-settlement (ISDS) provisions that are envisaged to give the TTIP procedural teeth. Various non-governmental organizations (NGOs) argue that TTIP would establish an extrajudicial mechanism for settling disputes that would subject Germany to the caprice of the US and its multinational enterprises, while undermining its political sovereignty.[i] This criticism has had an impact on the political scene. For example, the Federal Ministry of Justice has voiced grave concerns about the inclusion of ISDS provisions in TTIP, and the Federal Council has recently followed suit, pointing to the high risks allegedly associated with ISDS.[ii] Even agreements that seemed to be uncontroversial are called into question. For example, the EU-Canada free trade agreement (FTA), the wording of which was basically finalized in 2013 and which contains a progressive ISDS system designed to address critical issues discussed in the recent debate,[iii] is now the subject of reservations raised by Germany (a move that could jeopardize the agreement if Germany insists vis-à-vis the Commission that its final ratification requires the assent of the national parliaments of the EU member states[iv] - an issue the European Court of Justice would eventually have to decide).

Given Germany’s contribution to the development of ISDS, the country’s current stance belies its longstanding attitude toward ISDS. It was Germany that spearheaded bilateral investment treaties that form the basis of ISDS; it is Germany that has concluded more of these agreements than any other country—and with good reason: as an industrialized nation dependent on exports and, therefore, on the existence of free and legally-protected trade and investment, German investors, and thus Germany itself, would benefit most from the inclusion of ISDS provisions in the TTIP. Other EU countries would similarly benefit, as European claimants accounted for more than half of the investment arbitration cases registered between 2008-2012. The Loewen case[v] demonstrates that reliance on the US legal system alone is not a dependable safeguard for foreign investors there. On the other hand, the concern of a “regulatory chill” that would endanger European environmental and health protection standards seems exaggerated: notwithstanding the difficulty in assessing the impact of settled cases, only 31% of the almost 300 cases concluded so far have yielded an award in favor of the investor, with only a tiny fraction of these cases concerning legislative measures, as opposed to individual decisions by the executive.

So what explains Germany’s about-face on ISDS? The easiest explanation is the change in government. Whereas the negotiations on TTIP were initiated by the old coalition of Christian Democrats and Liberals, Chancellor Merkel now governs with the Social Democrats; practically all the voices cited above come from Social Democrats, who control the Ministry of Justice, as well as the Ministry for the Economy and the Federal Council. But the roots of this change go much deeper, as the Social Democrats themselves have reversed their stance on FTA’s since they last held the Chancellorship ten years ago. Accordingly, Germany’s current stance appears to be infused by a contentious mix of anti-American sentiment, most recently fueled by the NSA affair;[vi] a general aversion against globalization and international capitalism, also as a result of public perception of the US; and the confident, albeit misguided, feeling that Germany is sufficiently well-off so as not to need an agreement like TTIP. In sum, these sentiments foster indifference toward strengthening international economic relationships in general and with the US in particular -- a hazard that must be addressed seriously. Otherwise, the further build-up of a consistent international investment law regime, and perhaps the liberalization of world trade -- for which TTIP is a cornerstone -- could grind to a halt. If it becomes necessary for negotiators to abandon ISDS to save the material contents of TTIP, this would only produce a second-best solution, if any at all.

* Ralph Alexander Lorz, LL.M. (Harvard), Attorney-at-Law (New York), is Professor of Law at Heinrich Heine University in Duesseldorf (Germany); he is currently serving as Secretary of Public Education in the State Government of Hesse (Germany). The author is grateful to Andrea Bjorklund, Marc Bungenberg and Federico Ortino for their helpful peer reviews. The views expressed by the author of this Perspective are strictly personal and do not necessarily reflect the opinions of Columbia University or its partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.
[i] See, for instance, most recently the dossier published by LabourNet Germany on August 20, 2014, available at http://www.labournet.de/politik/eu-politik/wipo-eu/freihandelsabkommen-mit-den-usa-tafta.
[ii] BR-Drs. 295/14, Resolution of July 11, 2014, available at http://www.bundesrat.de/SharedDocs/drucksachen/2014/0201-0300/295-14(B).pdf?__blob=publicationFile&v=1.
[iii] See, European Commission, “Investment provisions in the EU-Canada free trade agreement”, December 3, 2013, available at http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf.
[iv] See “European Commission denies reports that Germany is derailing CETA”, International Business Times, September 23, 2014, available at http://www.ibtimes.co.uk/european-commission-denies-reports-that-germany-derailing-ceta-1466862. ndanger the  address theitical pfor more than half of the globally registered investment arbitration cases from 2008-2012. treat
[v] Loewen Group v. USA, ICSID Case No. ARB(AF)/98/3, award of June 26, 2003.
[vi] The latest survey by the Allensbach Institute shows a so-called “cross pressure” of conflicting loyalties in many Germans when assessing the US. The US appears more than ever like the big brother, triggering aversions by his rudeness but representing the only reliable force when bad boys surface along the way. See “Der Groll ueber den grossen Bruder”, Frankfurter Allgemeine Zeitung, September 17, 2014, p. 8.
The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Ralph Alexander Lorz, ‘Germany, the Transatlantic Trade and Investment Partnership and investment-dispute settlement: Observations on a paradox,’ Columbia FDI Perspectives, No. 132, October 13, 2014. Reprinted with permission from the Columbia Center on Sustainable Investment (www.ccsi.columbia.edu).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at ccsi@law.columbia.edu.
For further information, including information regarding submission to the Perspectives, please contact: Columbia Center on Sustainable Investment, Adrian Torres, adrian.p.torres@gmail.com or adrian.torres@law.columbia.edu.

Most recent Columbia FDI Perspectives
No. 131, Kenneth P. Thomas, “How to deal with the growing incentives competition,” September 29, 2014.
No. 130, Catherine Kessedjian, “Good governance of third party funding,” September 15, 2014.
No. 129, Armand de Mestral, “The Canada-China BIT 2012: Perspectives and implications,” September 2, 2014.
All previous FDI Perspectives are available at http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/.

Investimento Estrangeiro: sempre positivo para as economias recebedoras? (Estudo da Columbia)

Columbia FDI Perspectives

Perspectives on topical foreign direct investment issues by

the Vale Columbia Center on Sustainable International Investment

No. 98   July 1, 2013

Editor-in-Chief: Karl P. Sauvant (Karl.Sauvant@law.columbia.edu)

Managing Editor: Jennifer Reimer (jreimer01@gmail.com)

 

Do host countries really benefit from inward foreign direct investment?

by

Byungchae Jin, Francisco García and Robert Salomon*

It was with great interest that we read Perspective No. 84 addressing the impact of inward foreign direct investment (IFDI) on technological innovation and entrepreneurship.[1] In that issue, Pathak, Laplume, and Xavier-Oliveira laid out arguments for and against IFDI. They suggested that we have, for far too long, extolled the benefits of IFDI for developing economies, without properly accounting for its costs. They noted that there are genuine concerns that we ought not to overlook, and that we should pay special attention to the impact of IFDI on local innovation and entrepreneurship. Understanding the relationship between IFDI and innovation is an important policy issue, as it can help inform whether, and how, IFDI can stimulate economic growth.

Central to addressing the debate regarding the effect of IFDI on local innovation is to determine whether foreign entrants enhance the innovativeness of local firms, or crowd out domestic innovation. One line of reasoning suggests that IFDI ought to lead to greater levels of local innovation as a result of knowledge spillovers to local firms. In addition, foreign entrants provide local firms an incentive to innovate as a means to compete, or in the case of vertical linkages, better to meet technical supply requirements.

Another line of reasoning casts doubt on the positive impact of IFDI, suggesting that foreign entrants relegate local firms to less innovative, less profitable market niches. Moreover, since foreign firms generally pay higher wages, foreign entrants might attract higher-skilled labor, leaving domestic firms short on talent -- a key ingredient to innovation. Foreign entry can also reduce the expected returns to entrepreneurship, creating a situation in which the best would-be entrepreneurs prefer to take employment with foreign firms instead of founding new enterprises.

In order to address one aspect of this debate, we studied the effects of IFDI on productivity and innovation in the manufacturing sector of Spain from 1990 through 2002.[2] During that period, Spain received nearly € 45 billion of IFDI in manufacturing.[3] And though Spain is not a developing economy by traditional metrics, relative to its OECD counterparts, it is a laggard. Hence, Spain is considered a middle-income, developed country;[4] and given its position between developed and developing markets, Spain makes an interesting setting in which to test the relationship between IFDI and innovation.

Interestingly, as IFDI increased in specific industries, Spanish manufacturing firms improved their productivity (both total factor productivity and labor productivity). However, as IFDI rose in those same industries, Spanish firms subsequently applied for fewer patents and introduced fewer new products.

These findings highlight the importance of distinguishing between productivity and innovation when considering the net benefits of IFDI. Productivity and innovation might not capture the same outcomes, and may therefore speak to two very different aspects of the debate.

For example, productivity captures short-run improvements in allocative and technical efficiency. Therefore, to the extent that Spain lags the global technological frontier in high-tech manufacturing,[5] we may simply observe productivity increases as a result of a catch-up effect -- i.e., Spanish firms adopting the more efficient manufacturing techniques that entrants bring with them.

Innovation, by contrast, may be a better indicator of the long-run consequences for growth. To the extent that IFDI crowds out local innovation, it may fail to provide desired growth outcomes. IFDI may actually hinder the development of technological capabilities among local firms and, hence, the long-term growth prospects of local economies.[6]

Circling back to the issue of whether to encourage IFDI as a matter of policy, there is reason for pause. Our findings call into question whether IFDI can serve as a long-run growth catalyst, or whether it simply offers a short-term fix. Sure, IFDI may spur job creation, increase tax revenues and improve the productivity of local firms. Those outcomes benefit the host country and are welfare enhancing in the near term. However, as a consequence of IFDI, local innovation may become impaired, dampening long run economic growth, development and social welfare.

All things considered, there are potential tradeoffs between IFDI’s near-term benefits and its long-run costs. This is not to say that IFDI should be discouraged. Rather, policies that subsidize foreign entry ought to be thought through carefully. Policymakers would be well served to pay special attention to tradeoffs, and enact policies that are consistent with long-term development objectives.[7]

The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Byungchae Jin, Francisco García and Robert Salomon, ‘Do host countries really benefit from inward foreign direct investment?,’ Columbia FDI Perspectives, No. 98, July 1, 2013. Reprinted with permission from the Vale Columbia Center on Sustainable International Investment (www.vcc.columbia.edu).” A copy should kindly be sent to the Vale Columbia Center at vcc@law.columbia.edu.

 

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* Byungchae Jin (bjin@sfu.ca) is Assistant Professor of Innovation and Entrepreneurship at the Beedie School of Business at Simon Fraser University in Canada; Francisco García (fgarciap@uniovi.es) is Assistant Professor of Management at the School of Economics and Business, Universidad de Oviedo; Robert Salomon (rsalomon@stern.nyu.edu) is Associate Professor of International Management and the Daniel P. Paduano Family Fellow of Business and Ethics at the NYU Stern School of Business. The authors are grateful to John Kline, Wolfgang Sofka and Zheying Wu for their helpful peer reviews. The views expressed by the authors of this Perspective do not necessarily reflect the opinions of Columbia University or its partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.

[1] Saurav Pathak, André Laplume and Emanuel Xavier-Oliveira, “Inward foreign direct investment: Does it enable or constrain domestic technology entrepreneurship?,” Columbia FDI Perspectives, No. 84 (December 3, 2012).

[2] Francisco García, Byungchae Jin and Robert Salomon, “Does inward foreign direct investment improve the innovative performance of local firms?,” Research Policy, vol. 42 (February 2013), pp. 231-244.

[3] OECD Statistics Database.

[4] Guillén Mauro. The Rise of Spanish Multinationals: European Business in the Global Economy (Cambridge: Cambridge University Press, 2005).

[5] Robert Salomon and Byungchae Jin, “Does knowledge spill to leaders or laggards? Exploring industry heterogeneity in learning by exporting,” Journal of International Business Studies, vol. 39 (January 2008), pp. 131-150.

[6] García, Jin and Salomon, op. cit.

[7] John Kline, “Evaluate sustainable FDI to promote sustainable development,” Columbia FDI Perspectives, No. 82 (November 5, 2012).

For further information, including information regarding submitting to the Perspectives, please contact: Vale Columbia Center on Sustainable International Investment, Jennifer Reimer, jreimer01@gmail.com. In addition to her role as Research Associate for the VCC, Ms. Reimer is Legal Counsel for LG Electronics’ Regional Headquarters for the Middle East and Africa.

==========

The Vale Columbia Center on Sustainable International Investment (VCC), led by Lisa Sachs, is a joint center of Columbia Law School and the Earth Institute at Columbia University. It is the only applied research center and forum dedicated to the study, practice and discussion of sustainable international investment, through interdisciplinary research, advisory projects, multi-stakeholder dialogue, educational programs, and the development of resources and tools.

Most recent Columbia FDI Perspectives

·       No. 97, Abdoul’ Ganiou Mijiyawa, “Myopic reliance on natural resources: How African countries can diversify inward FDI,” Columbia FDI Perspectives, June 17, 2013.

·       No. 96, Louis T. Wells, “Infrastructure for ore: Benefits and costs of a not-so-original idea,” Columbia FDI Perspectives, June 3, 2013

·       No. 95, Terutomo Ozawa, “How do consumer-focused multinational enterprises affect emerging markets?,” Columbia FDI Perspectives, May 20, 2013.”

·       No. 94, Stephan Schill and Marc Jacob, “Common structures of investment law in an age of increasingly complex treaty-making,” Columbia FDI Perspectives, May 6, 2013.

·       No. 93, Xiaofang Shen, “How the private sector is changing Chinese investment in Africa,” Columbia FDI Perspectives, April 15, 2013.

·       No. 92, Vid Prislan and Ruben Zandvliet, “Labor provisions in bilateral investment treaties: Does the new US Model BIT provide a template for the future?,” Columbia FDI Perspectives, April 1, 2013.

·       No. 91, Anthony O’Sullivan and Alexander Böhmer, “The Arab Awakening, act II: Time to move more boldly on investment,” Columbia FDI Perspectives, March 18, 2013.

·       No. 90, Shaun E. Donnelly, “A business perspective on a China - US bilateral investment treaty,” Columbia FDI Perspectives, March 4, 2013.

·       No. 89, Joachim Karl, “Investor-state dispute settlement: A government’s dilemma,” Columbia FDI Perspectives, February 18, 2013.

·       No. 88, Jarrod Wong, “The compensatory nature of moral damages in investor-state arbitration,” Columbia FDI Perspectives, February 4, 2013.

All previous FDI Perspectives are available at http://www.vcc.columbia.edu/content/fdi-perspectives.