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Sovereignty by Subtraction: the Multilateral Agreement on Investment Robert Stumberg*

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Sovereignty by Subtraction: the Multilateral Agreement on Investment Robert Stumberg* Cornell International Law Journal Volume 31 Article 5 Issue 3 Symposium 1998 Sovereignty by Subtraction: The ultM ilateral Agreement on Investment Robert Stumberg Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Stumberg, Robert (1998) "Sovereignty by Subtraction: The ultM ilateral Agreement on Investment," Cornell International Law Journal: Vol. 31: Iss. 3, Article 5. Available at: http://scholarship.law.cornell.edu/cilj/vol31/iss3/5 This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. Sovereignty by Subtraction: The Multilateral Agreement on Investment Robert Stumberg* Introduction ..................................................... 492 I. Overview of the MAI Sovereignty Debate .................. 496 A. Trade-Offs in the MAI Negotiations .................... 496 B. Defining Sovereignty as the Balance of Power .......... 498 C. Main Features of the MAI ............................. 501 D. Sovereignty Preservation Arguments ................... 503 1. Preemption by Federal Courts ...................... 503 2. Administrative Implementation ..................... 504 3. Legislation ........................................ 504 E. Likelihood of Conflict Arguments ..................... 506 1. Trade Is Not Investment ............................ 506 2. History of Investment Disputes ...................... 507 F. Gears of the Power Shift ............................... 508 11. The MAI vs. the Current Balance of State/Federal Powers . 509 A. National Treatment ................................... 510 1. M AI Provisions .................................... 510 2. Potentialfor Conflict ............................... 513 3. Sovereignty Issues .................................. 522 a. Explicit Discrimination - Prima Facie Violation v. Strict Scrutiny .............................. 525 b. Facially Neutral Laws - Effects Test v. Balancing Test ........................................... 529 c. Alcoholic Beverages - State Regulation Under The 21st Amendment ......................... 533 d. Subsidies - Exception to the Dormant Commerce Clause ............................. 534 e. Market Participation - Exception to the Dormant • Commerce Clause ............................. 536 4. Significance of Proposed MAI Revisions .............. 540 B. Most-Favored-Nation (MFN) Treatment ................. 541 1. MAI Provisions .................................... 541 2. Potentialfor Conflict ............................... 542 3. Sovereignty Issues .................................. 546 * Professor of Law, Georgetown University Law Center, and Clinical Director of the Harrison Institute for Public Law at Georgetown. Georgetown law students Sihin Abdi, Lauryn Beer, Johathan Engler, William Isasi, Sean Neal, and Marlene Williams contributed research and analysis upon which this article is based. Several colleagues provided valuable guidance on the draft, including John Jackson, Matthew Porterfield, Glen Sugameli, John Echeverria, William Waren, and Jaron Bourke. 31 CORNELL INT' LJ. 491 (1998) Cornell InternationalLaw Journal 1Vbol. 31 4. Significance of Proposed MAI Revisions .............. 552 C. Absolute Investor Protections .......................... 553 1. Limits on Performance Requirements ................ 553 2. Expropriation ..................................... 556 3. General Treatment ................................. 562 D. Scope of Potential Impact ............................. 567 III. The Viability of Country-Specific Exceptions .............. 568 A. Grandfathering of Existing Nonconforming Laws ...... 570 1. Limits of Grandfathering........................... 570 2. Technical Specifications ............................. 572 B. Exceptions for Future Nonconforming Measures ....... 575 C. Interpretation by Dispute Panels ....................... 576 C onclusion ...................................................... 584 Appendix: Options for Balancing Federalism & Investor Protection ....................................................... 588 I. Unilateral Options ....................................... 588 A. Process for Congressional Oversight and Approval ..... 588 1. Legal Impact Statement ............................ 588 2. Disclosure of Legislative History .................... 588 3. Hearings .......................................... 588 4. CongressionalApproval ............................. 589 B. Implementing Legislation .............................. 589 II. M ultilateral Options ...................................... 593 A. General Exceptions or Carve-Outs ..................... 593 1. Security Interests .................................. 595 2. National Economic Security ......................... 595 3. Domestic Regulatory Powers ........................ 596 4. Domestic ConstitutionalLimits ...................... 596 B. Limits on Dispute Resolution .......................... 597 Introduction The proposed Multilateral Agreement on Investment (MAI) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls.' A panelist at the 1998 Cornell International Law Journal Symposium introduced the MAI as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration.2 This perspective posits that the MAI is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise. 1. See WEBSTER'S NEw INTERNATIONAL DIcToNARY OF THE ENGLISH LANGUAGE 2179 (3d ed. 1971). 2. Rainer Geiger, Deputy Director of Financial, Fiscal and Enterprise Affairs, Organisation for Economic Co-operation and Development (OECD), Remarks at the Cornell International Law Journal Symposium, The InternationalRegulation of Foreign Direct Investment: Obstacles & Evolution, Cornell Law School (Mar. 6, 1998). 1998 Sovereignty by Subtraction Its critics call the MAI a "slow motion coup d'etat,"3 a "bill of rights for investors," 4 a threat to sovereignty,5 and a "corporate rule treaty,"6 because it (1) empowers foreign investors to challenge the law-making authority of nation states and subnational governments, (2) is composed of a fifty-page text of fourteen investor-protection standards that exceed the scope of any existing agreement, 7 (3) and acts through an international forum with the power to award monetary damages against the offending government.8 U.S. negotiators counter that the MAI protects foreign investors from dis- crimination by giving them rights analogous to those they already enjoy under the U.S. Constitution.9 In addition, U.S. negotiators maintain that an agreement that poses significant limits on U.S. sovereignty is unacceptable. 10 This Article suggests a more modest analogy than a virtual coup d'etat. It simply seeks to explain that the MAI would have a greater impact on U.S. law making power than acknowledged by MAI supporters, who claim that it merely repeats domestic principles of non-discrimination. For example, the MAI aims to limit U.S. States' traditional powers to discriminate. The first objective of this article is truth in advertising: the MAI would disrupt state and local lawmaking capacity. The capacity of cities, coun- ties, and states to 'serve as our "laboratories of democracy"'" hangs in the balance. States act as successful laboratories for testing future national 3. Lori Wallach & Ralph Nader, Forward to MAUDE BAR.ow & TONY CLARKE, THE THREAT TO AMERICAN FREEDOM vii (1998). 4. Scott Nova & Michelle Sforza-Roderick, M.A.I. Culpa, THE NATION, Jan. 13-20, 1997, at 5. The attorney representing an investor in the first NAFTA investment case posits that, "[t]he MAI investment provisions have quietly created a looming economic constitution that protects the rights of foreign MAI investors ...... BARRY APPLETON, MUNICIPALITIES AND THE MAI 8 (1998). 5. See TONY CLARK & MAUDE BARLOW, THE MULTILATERAL AGREEMENT ON INVESTMENT AND THE THREAT TO CANADIAN SOVEREIGNTY 3 (1997). 6. ToNY CLARK & MAUDE BARLow, THE CORPORATE RULE TREATY 1 (1977). 7. See Directorate for Financial, Fiscal and Enterprise Affairs, Organisation for Eco- nomic Co-operation and Development (OECD), Multilateral Agreement on Investment: The MAI Negotiating Text arts. III-IV (last modified Dec. 14, 1998) <http:// www.oecd.org/daf/cmis/mai/negtext-htm> [hereinafter MAI Negotiating Text]. 8. See id. art. V. 9. For example, "[t]he fundamental principle underlying this and other investment agreements is the principle of non-discrimination. Such agreements do not generally call into question the sovereign right of governments to regulate so long as the regulation does not single out or discriminate against investors based on their nationality." Multi- lateral Agreement on Investment: Win, Lose or Draw for the U.S.?: Hearing Before the House Subcomm. on Int'l Econ. Policy and Trade, of the Comm. on Int'l Relations, 104th Cong., availablein 1998 WL 110860, USTESTIMONY database, Mar. 5, 1998 (statement of Alan Larson, Assistant Secretary of State for Economic and Business Affairs, U.S. Department of State). 10. See Interview by Derrick McGinty with Amb. Jeffrey Lang, Deputy U.S. Trade Representative, Washington, DC on the DERRICK McGiNTY HOUR (tape transcription at 2) (NPR radio broadcast, Jan. 10,
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