An International Investment Regime? — Issues of Sustainability

The history of investment negotiations over the past 20 years reveals that the MAI suffered from more shortcomings than just the widely advertised environmental ones. With its focus on investor rights—certainly an essential part of any investment agreement—the MAI perpetuated a polarization of the process that consistently separated investor rights from investor obligations. The need to strike a balance between private (investor) interests and public goods must be at the heart of any international agreement, certainly when viewed from the perspective of sustainable development.
An international agreement that facilitates a balancing of private interests and public goods needs to look quite different from the MAI. Indeed, it must also look different from the GATT. It represents a challenging undertaking, in many respects as difficult as constructing a regime for the control of climate change (itself an agreement that seeks new private investment in areas of public concern). This study draws lessons from the experience in building international environmental agreements to suggest a new approach to an international investment agreement. It proposes a framework agreement on investment combined with a number of sectoral agreements (for example, on climate change, forestry, or the provision of services for that matter), in which it becomes possible to identify the public interest being served by providing private investors with additional rights.