Mai Rises From The Dead

In B-grade splatter films, even after the evil villain has been sliced, diced and dunked in lava, you just know he’ll be back for the sequel. Apparently it’s the same with corporate plots to take over the world — because the Multilateral Agreement on Investment, which many had thought dead and buried, has now risen from the grave.

Dubbed the “corporations’ bill of rights”, the MAI was a plan hatched in secret and kept under wraps even from the parliaments of the rich nations which were negotiating it.

When its draft text was leaked to a non-government organisation in early 1997, it became the subject of a worldwide, and very angry, campaign. Given its backroom origins, it was afraid of the sunlight — and the campaign was eventually enough to force those behind it, in the Organisation for Economic Cooperation and Development, to announce in late 1998 that it was being put down.

>From the moment it was laid to rest, however, its architects in the corporate boardrooms and cabinets of the US and Europe were planning its resurrection — and, sure enough, some of its body parts have since made their way into International Monetary Fund policy and the terms of the Free Trade Area of the Americas and the Asia-Pacific Economic Cooperation trade agreements.

But its biggest step back into the land of the living came on November 14, when after days of tense negotiations in the World Trade Organisation’s Qatar ministerial meeting, the WTO announced that it would launch talks on the terms of an eventual international agreement on investment.

With negotiations due to start in the new year, the MAI is well and truly back.

The original MAI was truly a horror story. Described by a former director-general of the World Trade Organisation, Renato Ruggerio, as “the constitution for a single global economy”, the MAI would have given multinational corporations’ virtual free rein to invest their capital where, how, when and under whatever terms they liked.

Among the “rights” conferred on corporations by the MAI were:

* the right to compete against domestic companies in all economic sectors without restriction (called “national treatment” in trade lingo);

* the right to acquire any business or property in any economic sector, including natural resources and strategic industries such as communications and defence;

* the right to convert currency and move money across borders without constraints;

* the right to move production facilities without limit or penalty, regardless of the impacts on workers or host communities;

* the freedom from conditions placed on investment (called “performance requirements”);, such as anti-speculation measures and rules of conduct; and

* the right to sue governments for cash damages if an investor claims its rights have been violated under the agreement (called “protection from expropriation”);.

The MAI would have severely restricted the ability of governments to set the framework and parameters for investment, whether long-term foreign direct investment (such as the establishment of factories or stores) or short-term speculation (such as the purchase of stocks or bonds).

In particular, many of the mechanisms by which Third World governments seek to make foreign investment meet domestic development goals would have been ruled out.

Laws which specify a certain amount of local content in manufactured goods or a certain number of managerial and technical employees in a company, for example, would have been outlawed, as would “speed bump” finance laws, which discourage speculation by requiring investors to hold onto financial assets for a minimum period of time.

In its ministerial declaration, the World Trade Organisation was careful not to give too much, specifying only that a future framework agreement on investment should seek to “secure transparent, secure and predictable conditions” for investment.

But one of the main backers of the MAI, the Trans-Atlantic Business Dialogue, a little-known but highly influential grouping of corporate chieftains from Europe and the US, revealed its negotiating position in a report published on October 29, just before the WTO ministerial.

“As a point of departure”, the report stated, “governments should launch negotiations in the new round to provide for: transparency, predictability, and stability of rules governing international investment; national treatment; and seek early agreement to promote enforcement of existing TRIMS (Agreement on Trade Related Investment Measures).”

The TRIMS agreement, in force since the WTO’s foundation in 1995, already provides some MAI-like restrictions on what “performance requirements” governments can enforce.

“Subsequently”, the report continues, “WTO rules should be a basis for enhanced market access, protection from expropriation, and redress for the settlement of disputes.”

Further, a close analysis of European Union documents proposing new WTO agreements on investment and competition policy, conducted by Ville-Veikko Hirvelä of Friends of the Earth Finland, has revealed how MAI-style provisions hide behind benign-sounding phrases.

Hirvela traces the linguistic contortions by which “transparency” becomes the right of corporations to sue governments for any policy which negatively affects their revenues.

“Transparency provisions”, one EU document reveals, must include “procedures through which private parties can have … guarantees of due process”, the “availability of effective … remedies”, and the establishment of “authority … with sufficient enforcement powers … to provide that sanctions should be established at a sufficient level to constitute effective deterrence”.

Similar rights to sue in the North American Free Trade Agreement have allowed companies to win damages from governments which close their toxic waste dumps, for example, or ban the sale of dangerous chemicals.

The good news is that multinational corporations and rich-country governments are still a long way from being able to sick their resurrected monster onto an unsuspecting world.

The commencement of WTO negotiations on investment — and other new issues including competition policy, government procurement and “trade facilitation” measures — was amongst the most hotly contested issue in Qatar.

Many Third World countries, led by India, were opposed outright to such negotiations, fearing that they would result in a crippling of their ability to set their own terms for investment.

But through a combination of bribes and blackmail, European and US negotiators were eventually able to overcome opposition. India was the last to buckle, 18 hours after the scheduled finish of the Qatar summit, agreeing to only abstain on the new issues, rather than oppose them.

The price rich countries had to pay for getting agreement on negotiations, however, was a much dragged out and delayed process.

Substantive negotiations on investment will not begin straight away. Rather, the first round of negotiations will only consider the “scope and definition” and the “modalities” (procedures) for a future agreement on investment.

The outcome of these preliminary negotiations will then be presented to the next WTO ministerial in 2003. Only if there is an “explicit consensus” at that meeting will substantive negotiations on an agreement proceed.

The capacity of business and rich-country governments to strong-arm such an “explicit consensus” out of WTO members should not be underestimated.

But this breathing space means that the international social movements which opposed, and killed, the MAI when it first appeared now have two years to ready themselves to kill it again.

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