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David Collins

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David Collins

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David Collins

This book assesses the way in which performance requirements and investment incentives are regulated by international economic law, consisting of the law of the World Trade Organization (WTO) and international investment agreements (IIAs). The central argument of this book is that the existing international regulatory regime governing these policy instruments is insufficiently robust to prevent their abuse by states seeking to protect weak industries and by mobile firms exploiting host states which need to attract foreign direct investment (FDI). This book will suggest that the lack of international coherence on the control of performance requirements and investment incentives has prevented states from using them in a manner that is economically advantageous on a domestic and, by extension, global scale. The manner in which performance requirements and investment incentives are regulated by international economic law is contentious, because these policies allow states to control the nature and extent of FDI in and out of their territory, very often leading to distortions in international markets as well as misallocated resources in the domestic economy. At the same time, these conditions are key manifestations of economic sovereignty and can represent useful instruments of domestic economic and social policy in limited circumstances. This is true both in emerging markets, which are often vulnerable to the effects of globalization, and in developed states, where they may be used in response to discrete, socially-damaging downturns in particular industries or regions. Drawing on the economic and business literature, this book will recommend a balanced, socially collaborative approach to the regulation of performance requirements and investment incentives that is mindful of the need for case-by-case evaluations of individual policies with input with a range of affected stakeholders.
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David Collins

This chapter introduces the concept of performance requirements and investment incentives as used to structure the nature and extent of FDI by host states. It will consider the stated goals, potential benefits and criticisms of various categories of these policies, based on a wide range of economic studies.
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David Collins

This chapter will introduce the principle of non-discrimination in international economic law, as invoked by the national treatment standard common to trade and investment regimes. It will suggest that both performance requirements and investment incentives represent transgressions of this standard, which has been the subject of extensive jurisprudence by both WTO and international investment tribunals.
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David Collins

This chapter will explore the extent to which the laws of the WTO have controlled the use of performance requirements, discussing in particular the TRIMs Agreement and the GATS. The limited case law from this regime will be considered, along with trade-based guidelines promulgated by international organizations aiming to liberalize FDI.
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David Collins

This chapter will examine the way in which international investment agreements (IIAs) have restricted the use of performance requirements, often exceeding the TRIMs regime to cover non-trade types of conditions imposed on firms. The chapter will consider some of the investor–state arbitration case law on the application of these policies, particular that of the NAFTA.
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David Collins

This chapter will evaluate the WTO’s limited disciplines on incentives, captured essentially by its regime on subsidies under the SCM. The lack of comprehensive coverage by this instrument and other WTO agreements like the GATS and the GPA will be examined, with a focus on the imperfect link between tests for economically distortive subsidies and a range of traditional incentives.