The Treatment and Taxation of Foreign Investment Under International Law

Price: $90.00 245 pages. 1 Hardcover Volume. Table of Treaties and other Documents. Table of Cases. Index. Bibliography. Published December 2000.
ISBN-13: 978-1-929446-08-7 / ISBN-10: 1-929446-08-X

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Table of Contents

About the Book:
The Treatment and Taxation of Foreign Investment Under International Law  is an important critique of foreign investment and taxation under international law. Each of these areas is complex in its own right but an understanding of their inter-relationship is crucial. The treatment ranges widely from classical issues of sovereignty, the establishment of international standards and the application of international principles of jurisdiction through to the dynamics of taxation and foreign investment within free trade paradigms of the European Union, the North American Free Trade Agreement and the World Trade Organization. Close attention is given to the political and legal ideologies at issue and the tensions within and between them. The book concludes by looking forward to how international disciplines on foreign investment can be developed in the light of environmental, social and other concerns, questions of forum and the prospects for a future multilateral agreement on investment.

The Treatment and Taxation of Foreign Investment Under International Law focus’ is on two aspects of the treatment of foreign investment by states: the general rules concerning access, operation and expropriation of foreign investment and the lex specialis of international taxation. The central concerns of the book are the ideological content of the international law rules in these areas, the changes in that ideological content over time and the implications of this for the international community and for the discipline of international law. Particular attention is paid to the implications for developing states which have in the past resisted the international law rules relating to the expropriation of foreign investment and sought instead the development of a new international economic order including inter alia the establishment of binding rules addressing the behavior of transnational corporations (TNCs). In the field of taxation, attention has focused on the imperative to establish a level playing field for firms with foreign investors, particularly by addressing double taxation problems; and on the need to develop rules and cooperation mechanisms to limit anti-social behavior by TNCs, such as tax evasion and transfer pricing.

In this study traditional legal approaches are first outlined, then a range of recent developments examined. An attempt is made to trace the development of new legal concepts and techniques in different contexts and locations: in bilateral relations, in multilateral conventions and negotiations and in regional economic integration systems. In relation to both foreign investment and taxation, a central question is whether states can agree to subsume their individual sovereign personae and interests within a supranational legal order so as to move closer to an optimal solution

A final theme which emerges concerns the actors in the international law arena. It is increasingly the case that states do not have a monopoly on law-making in the international community and this is evident in relation to the treatment and taxation of foreign investment and elsewhere. It is therefore pertinent to consider the role of other actors in shaping the negotiating processes and the outcomes of such processes, and the wider contribution this makes to the discipline of international law.

The Treatment and Taxation of Foreign Investment Under International Law will be of interest to academics, practicing lawyers and students interested in international law, international economic law and international economic relations.

Format Of Chapters

• Chapters 1 and 2 outline the traditional international law concerning the treatment of foreign investment and review the efforts of states unilaterally, bilaterally and multilaterally to develop and secure standards for the treatment of foreign investment, prior to the conclusion of the WTO Agreement. 
• Chapters 3 and 4 then repeat this exercise in relation to the taxation of foreign investment. In each case, the enquiry focuses on the framework of classical international law and the imprint which this has made on the legal regime which has evolved and on subsequent developments. 
• In Chapter 5 some of the major weaknesses of the traditional approaches are considered. 
• Chapter 6 examines the emergence of new patterns of institutions and law-making, of laws concerning the treatment and taxation of foreign investment and of dispute resolution processes in two regional economic integration areas, the European Union (EU) and the North American Free Trade Agreement (NAFTA). These, it is submitted, are important in two distinct ways: first, because of the influence which the concepts and laws developed within these contexts has had beyond that context and, second, because the creation of such areas has in itself acted as a driving force for the adoption of free trade principles on a wider scale.
• Chapter 7 considers a number of recent developments in relation to the treatment of foreign investment which, it is argued, have been of great significance in determining the future approach to regulation of the treatment of foreign investment. First, the Foreign Investment Review Act (FIRA) case, is considered. This case concerned a General Agreement on Tariffs and Trade (GATT) dispute between the United States and Canada over Canada's restrictive approach to the admission of foreign investment, which established for the first time that such policies could fall foul of GATT, where they were trade restricting. Then two of the WTO Uruguay Round agreements, the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Investment Measures (TRIMs), are examined. Finally, the Organisation for Economic Co-operation and Development's (OECD) efforts in the late 1990s to negotiate a Multilateral Agreement on Investment (MAI) are subjected to scrutiny and the reasons for the failure of this effort examined. The failure of the MAI negotiations bears many lessons for the future: the MAI may prove to be as influential as a non-agreement as it might have been as an agreement on future developments in relation to foreign investment specifically and international economic law more generally.
• The issues arising from the MAI are taken up again in Chapter 8, where consideration is given to the possible conclusion and operation of an MAI under the auspices of the WTO. The suitability of the WTO as a forum for such a development is considered. And with the demise of the OECD's MAI negotiations and the severe disruption of the WTO Ministerial Conference in Seattle in mind, some of the wider issues of governance facing the WTO are considered.
  Some of these issues - transparency, accountability and democracy in international law-making, due respect for the principle of sovereign equality and the right to economic self-determination - are of general concern in international law, as is the issue of regulation of multinational enterprises. Recent developments in relation to foreign investment demonstrate that, despite the widespread adherence to a new free trade orthodoxy, this area remains highly contentious within the international community.
  
  Praise for The Treatment and Taxation of Foreign Investment under International Law: Towards
  International Disciplines
  
  "Beveridge has chosen the vital problem of treatment and taxation of foreign investment and in response
  provides readers with an insight into a possible solution from the legislative perspective.  Her book should be
  recommended to students of international law, practitioners in the field of international business and law,
  and those in international relations and diplomacy."
  - Reviewed byJana Kubicová [Journal of International Relations and Development].
  
  
  

About the Author:
Fiona C. Beveridge is Lecturer in Law in the International and European Law Unit at the University of Liverpool.

Table of Contents