How Does International Economic Law Regulate the Right of Entry of Investments in Services?

Abstract

This paper analyses the different ways that international law regulates the entry of foreign investments. By comparing the provisions in the regimes of trade and investment law, this paper argues that there is more liberalization in investment treaties and more investment regulation in the GATS than commonly thought. Different clauses reflect the varied techniques used to regulate the entry of foreign investments and investors in services. No matter how divergent the goals of trade and investment treaties may be, in relation to the entry of investments and investors, the interpretation of the wording of their provisions leads to particularly similar results. The concept of commercial presence in the GATS includes aspects equivalent to the so-called establishment of foreign direct investments. The interpretation of GATS rules as covering potential service suppliers bear a resemblance to concepts already present in BIT practice in relation to investors that seek to invest. Therefore, there are some signs of an increasing conceptual and substantive convergence of rules. The way the admission clauses evolved to establishment clauses in some treaties shows that the difference between them, while less radical and of limited practical relevance, may indicate a step towards a convergence with international trade law. There has also been a trend towards treaty language granting more entry rights and commitments. This was done by the progressive introduction of national treatment for entry rights, the expansion of services coverage in Mode 3 and the recognition and clarification of the rights to potential investors. The increasing number of ITs containing establishment rights is noted especially in light of the new mega-regionals. There has also been a disposition to include provisions related to the entry of investors coming from the international trade law world into the investment law arena. In sum, the substantive convergence of the rules related to entry of investments in treaty-making is becoming more evident.