NATIONAL LAW UNIVERSITY ODISHA

INTERNATIONAL INVESTMENT LAW

INVESTMENT FACILITATION: HISTORIC ANALYSIS AND LATEST DEVELOPMENTS

SUBMITTED TO:

MRS. ELUCKIAA A

(ASSISTANT PROFESSOR OF LAW)

SUBMITTED BY:
SAKSHAM SINGH (17BA084)
 TABLE OF REFERENCES

Statutes
Agreement on Government Procurement Agreement 1994, art IV, 2a .........................................................4
General Agreement of Trade in Services 1995, art I, 1c..................................................................................4
General agreement on Tariffs and Trade 1947, art III, art XI..........................................................................4

Other Authorities
‘Doha Development Agenda’ (WTO Ministerial Conference, Doha, 2001)................................................5
‘Joint Ministerial Statement on Investment Facilitation for Development’ (WTO Eleventh Ministerial
Conference, Buenos Aires, December 2017)...............................................................................................3
Working Document on Multilateral Framework for Investment Facilitation 2019 ...................................15

Websites
‘Investment facilitation talks explore future Agrement integration into WTO legal structure’ (WTO, 5
October 2021) https://www.wto.org/english/news_e/news21_e/infac_05oct21_e.htm accessed 15
October 2021..................................................................................................................................................13
‘Workshop on Investment Faciliation for Development’ (WTO, 10 July 2017)
https://www.wto.org/english/tratop_e/invest_e/workshopinvestjuly17_e.htm accessed 15 October
2021 ..................................................................................................................................................................9
Investment facilitation talks address S&DT, technical assistance and sustainable investment’ (WTO, 8
September 2021) https://www.wto.org/english/news_e/news21_e/infac_15sep21_e.htm accessed 15
October 2021..................................................................................................................................................15

Journal Articles
N Bernasconi-Osterwalder, S L Campos and C V der Ven‘The Proposed Multilateral Framework on
Investment Facilitation’ (2020) IISD <https://www.iisd.org/system/files/2020-09/multilateral-
framework-investment-facilitation-en.pdf> accessed 19 October 2021 .................................................12
S Baliño, M D Brauch and R Jose ‘Investment Facilitation: History and the latest developments in the
structured discussions’ (2020) IISD https://www.jstor.org/stable/resrep21954 accessed 15 October
2021 ................................................................................................................................................................13
 INVESTMENT FACILITATION: HISTORIC ANALYSIS AND LATEST DEVELOPMENTS

Introduction
The World Trade Organization's Twelfth Ministerial Conference (hereafter referred to as the MC12) is
expected to result in important revisions to the joint ventures started in Buenos Aires, Argentina, in 2018.
The MC12 will be place in Geneva, Switzerland from November 30 to December 3, 2021. These include
the extensive discussions now taking place with the goal of building a multilateral framework for
investment facilitation comprising 98 WTO member-states that are signatories. This framework, as per
the joint statement released in December 2017, “shall not address market access, investment protection
and investor-state dispute settlement” and would cover subject areas designed to “facilitate foreign direct
investments”.1

It is still unclear whether the framework will be completed in time for the Geneva summit. According to
an update from the coordinator of these conversations, Chilean Ambassador to the WTO, Mr. Eduardo
Gálvez, during the WTO Public Forum in October 2019, the concerned signatory member-states expect
a meaningful result from the MC12 in 2021. The final outcome of this conference will depend on a
number of substantive discussions that have been scheduled ahead of time.

This essay seeks to provide a high-level overview of the above-mentioned investment facilitation debates.
It provides an overview of the present state of these debates, as well as detailed explanations and context.
In the framework of previous talks in the WTO, the reader will be kept up to date on topics connected to
investment facilitation and advances in the global trading system.

Discussions on investment facilitation are especially important because they have the potential to broaden
the scope of governance concerns surrounding investment facilitation within the area of international trade
governance. As a result, the purpose of this paper is to look into these investment facilitation difficulties
that have already been raised in the recently issued WTO guidelines on the subject. It also highlights the
actions being done at the regional, national, and international levels to address their respective concerns
of investment governance, such as investment protection and market access, as well as steps made outside
of the WTO to facilitate investment.

1
‘Joint Ministerial Statement on Investment Facilitation for Development’ (WTO Eleventh Ministerial Conference, Buenos
Aires, December 2017)
Current Perspective on International Investment Governance as per the WTO Rules

There are several situations when measures relating to investment facilitation already exist under the
existing structure of WTO agreements. The General Agreement on Trade in Services (GATS), in
particular the terms of service given under it, is one of the most important of them. These services are
those offered by "a services supplier of one Member, through commercial presence in the territory of
another Member" .This is covered in further detail under GATS Article I:1c2.

For the most part, the WTO Agreement on Trade-Related Investment Measures (TRIMS) has rules that
limit its scope almost entirely to the regulation of investment measures and how these measures affect
goods trade. It clearly prohibits member-states from taking any trade-related investment measures that are
inconsistent with the terms of the General Agreement on Tariffs and Trade (GATT) on national treatment,
or with the provision that requires the abolition of quantitative limits. It must be noted that taxes, charges
and duties are all exceptions to this provision. These are specifically covered in Article III and Article XI
of the GATT. 3

The World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) also has rules that specifically pertain to investments, such as Article 70, which addresses the
protection of currently existing subject matter. The TRIPS Agreement's consequences on intellectual
property rights laws for foreign investments, as well as TRIPS' evolution as a result of clauses in numerous
bilateral investment treaties, have been the topic of much debate and research.

One of the WTO's plurilateral agreements, the Government Procurement Deal (GPA), 1994, and the
revisions to its terms following a review in 2011, is another important agreement in the context of
investment facilitation. As seen in Article IV of the GPA, which was one of the amended provisions, the
GPA's general principles include non-discrimination provisions that make it a requirement for GPA
member-states not to "treat a locally established supplier less favourably than another locally established
supplier on the basis of the degree of foreign affiliation or ownership." This is specifically provided for in
Article IV:2(a).4 It must also be noted that the subsequent provision to this non-discriminatory pre-
requisite provides that the member-states are prohibited from discriminating against a “locally established
supplier based on where that supplier has sourced the goods and services on offer”.

2
General Agreement of Trade in Services 1995, art I, 1c
3
General agreement on Tariffs and Trade 1947, art III, art XI
4
Agreement on Government Procurement Agreement 1994, art IV, 2a
Early History of Investment Facilitation in the WTO
The WTO was established in January 1995, replacing the GATT Agreement's system, which had
previously been the norm for the governance of international trade between contracting member-states. It
was quickly followed by a decision nearly two years later, in December 1996, to establish a new system
of working groups. This system was part of a larger effort to gain a better understanding of certain issues
that were not addressed in the organization's rulebook at the time, as well as how these issues might be
related to trade and whether they were important enough to be brought under the purview of the newly
formed WTO. Investment, government openness, competitive rules, and trade facilitation were among
the topics discussed. As a group, these problems were known as Singapore Issues. During that time,
ministers in power held the view that the working groups on competition policy and investment should
make reference to existing discussions at UNCTAD and other relevant bodies. Both of these points were
agreed upon as part of the Ministerial Declaration from Singapore, which aimed to build a framework for
possible future WTO changes in important areas based on the Marrakesh Agreement.

To begin discussions on the Doha Development Agenda, ministers at the 2001 Ministerial Conference
established modalities for negotiations in their individual subject areas by express consensus, with the goal
of having these modalities adopted by ministers at the next Ministerial Conference. With regard to the
relationship between trade and investment, paragraph 20 of the aforementioned declaration made
reference to “the case for a multilateral framework to secure transparent, stable and predictable conditions
for long-term cross-border investment, particularly foreign direct investment, that will contribute to the
expansion of trade, and the need for enhanced technical assistance and capacity building in this area.”5

Among the other areas of discussion on investment, it included “the clarification of: scope and definition;
transparency; non-discrimination; modalities for pre-establishment commitments based on a GATS-type,
positive list approach; development provisions; exceptions and balance-of-payments safeguards;
consultation and the settlement of disputes between Members”.6 Other than this, the declaration further
highlighted the need of the dimension of development within the framework, while also accounting for
the capabilities of the various member-states, and it was noted that it is important that the framework
“reflect in a balanced manner the interests of home and host countries, and take due account of the

5
‘Doha Development Agenda’ (WTO Ministerial Conference, Doha, 2001)
6
ibid
development policies and objectives of host governments as well as their right to regulate in the public
interest”. 7

A deadline was set by Ministers at Doha's Ministerial Declaration in 2003 for reaching an explicit
consensus on negotiation methods at Cancun's Ministerial Conference, but no agreement was reached,
and the deadline was missed largely because of divergent views on those methods. The Cancun
Ministerial Conference in 2003 was later renamed the Cancn Conference. In other venues or the WTO,
several member states favoured plurilateral negotiations on these concerns. This strategy, however, was
dropped because of worries about setting a precedent by taking this course of action. Some questioned
how the Doha Development Agenda would deal with the Singapore Issues.

So in 2004, the General Council decided to drop three of the Singapore Issues, and new talks were
launched on trade facilitation. Members of the WTO were largely preoccupied with progressing
discussions in the Doha Round in the form of a single endeavour, therefore the question of whether or not
investment problems should be included in the WTO's jurisdiction was mostly left dormant. However,
after developing draught modalities in 2008 on topics like agriculture and non-agricultural market access
(NAMA) and others throughout the years following, the Doha Round discussions were subject to
recurrent delays until they were ultimately ended in January of 2005. In the "Elements for Political
Guidance" section of the Ministerial Conference Chair's Statement from the Ministerial Conference in
Geneva in 2011, the discussions came to an end with the announcement of an impasse.

After that, during the 2013 Ministerial Conference, member states ratified the Trade Facilitation
Agreement (TFA) and selected numerous Doha Round agricultural and development discussions
deliverables for implementation. The question of whether or not to continue the round of discussions was
discussed during the Ministerial Conference in Nairobi in December 2015, while concurrently
progressing the previous negotiations wherever practicable. The member states were debating whether or
not to continue on the same path of negotiations as set out in previous ministerial conferences, which was
the custom at the time, and this would have involved reaffirmation of the mandates discussed in the Doha
Ministerial Declaration, or to avoid doing so and to chart a new and different path for future negotiations,
to be more specific.

7
(n 4)
After elaborate discussions on the same, the member-states participating in the Nairobi Ministerial
Conference finally reached a conclusion and a ministerial declaration stating that the member-states have
“different views” on the Doha Ministerial Declaration and its agendas and also other past ministerial
declarations was adopted. At the same time, the shared commitment between the member-states to
“advance negotiations on the remaining Doha issues” was reaffirmed.8 These issues were determined to
take priority by the declaration, while also acknowledging the divisions amongst the member-states on
the decision of whether or not to negotiate on issues which were absent from the mandate reaffirmed in
the Doha Ministerial Declaration. Ultimately, the declaration stated on these issues that any “any decision
to launch negotiations multilaterally on such issues would need to be agreed by all Members” 9

Work on Investment Facilitation in Other Contexts

Investment facilitation efforts on other platforms have been successful on their own. Such activities were
not included in the international rule-making framework since they were aimed at providing
recommendations to nation-states that would benefit from investment facilitation and promotion.
According to the OECD, at their investment committee meetings, the organisation discussed and then
published a policy brief to advance a multilateral approach for the implementation of the newly developed
framework for investment facilitation. Global Action Menu for Investment Facilitation in September 2016
issued by UNCTAD produced a set of highly thorough criteria to determine the range of investment
facilitation measures that may be adopted by a country either unilaterally or as part of international
collaboration.

International treaties, as well as national policies, have been used by UNCTAD to keep tabs on how well
investment facilitation measures are being implemented. According to the UNCTAD's most current
World Investment Report, governments' national-level investment measures typically consist of measures
to promote and facilitate investment. Investment facilitation measures are often enacted at the national
level, although international treaties have incorporated several particularly relevant elements. Brazil's
strategy of negotiating CFIAs with its interested investors as part of BIT negotiations is a prominent
example of the same.

Aside from IGOs, the matter was also discussed extensively in other political venues, such as the G20
alliance, which includes both advanced and rising nation-states as members. The newly formed Trade and

8
(n 4)
9
(n 4)
Investment Working Group (TIWG) advanced the application of the G20 Guiding Principle for Global
Investment Policymaking in 2016, while China held the G20 coalition's presidency. This advisory
document provided nine principles, such as the importance of implementing investment facilitation efforts
that promoted transparency and created an environment where potential investors could establish, expand,
and consolidate their operations. Many more similar ideas for investment facilitation promotion were
examined when Germany took over as G20 coalition president, and member states contemplated adopting
a non-binding package for investment facilitation promotion in conjunction with current guidelines and
principles. They were finally discarded, though, and the potential initiative has been dormant ever since.

Re-emergence of Investment in the WTO: Post Nairobi to Buenos Aires

As investment facilitation debates gained traction in other international venues, they reappeared at the
WTO as well. The MIKTA group, an informal alliance comprising Indonesia, Turkey, Australia, Korea,
and Mexico, held their first informal session on investment facilitation at the World Trade Organization
on March 20th, 2017. Other nations' coalitions, such as the Friends of Investment Facilitation for
Development (FIFD), hosted informal meetings in the following years. The group's first members were
Brazil, China, Hong Kong, Korea, Nigeria, Argentina, Chile, Colombia, Kazakhstan, Mexico, and
Pakistan; since then, the group's membership has grown. The FIFD had co-sponsored a regional
workshop in Abuja, Nigeria in November of 2017 to encourage contributions and opinions from capital-
based policy-makers in line with the Geneva workshops that were being conducted.

Experts and officials from numerous international organisations, as well as interested member states,
disputed the rationale for WTO discussions on an accord to facilitate investment. The extent to which
current trade frameworks should address investment facilitation difficulties was one of the topics
discussed at these sessions. Proponents of this view asserted that, as investment and trade have become
increasingly intertwined in the 21st century, global supply routes have emerged, and as a result, investment
facilitation must be considered in light of trade-related issues, bringing it under the purview of the World
Trade Organization. Other member-states had argued that investment facilitation, even though it does
affect trade, must be dealt with in its own right as an investment policy issue, and were apprehensive of
the fragmentation of international investment governance practices that could possibly happen as a result.
10

10
‘Workshop on Investment Faciliation for Development’ (WTO, 10 July 2017)
https://www.wto.org/english/tratop_e/invest_e/workshopinvestjuly17_e.htm accessed 15 October 2021
Another important issue that came up during the aforementioned workshops in this debate was the
potential impact of mandatory measures under the scope of dispute settlement on investment facilitation
policies that are implemented on a best-efforts basis. The desire for enforceable terms for investment
facilitation had been opposed by certain member states, who instead advocated that member states
coordinate their efforts at the international level exclusively through voluntary measures, maybe through
institutions like the UNCTAD Supporters of binding provisions cited the TFA as evidence that
enforceable provisions are useful in an international context and can be used as catalysts for resources
needed and to generate political will to bring about major institutional reforms at the national level. This
argument was met with a counterargument.

The LDC member states' capacity to resolve these issues and the following danger of diverting already
limited resources away from future negotiations on the remaining topics of the Doha Ministerial
Declaration were also concerns highlighted by some people in the audience.

Some member states also provided written ideas for aspects that may form the basis of an investment
facilitation agreement, such as its transparency measures, administrative efficiency and international
coordination. These proposals were received in conjunction with the workshops. Despite the fact that
many of them were very identical, there were many unique aspects and advancements to be found in each
one.

A future "instrument on investment facilitation" could include elements from the Argentina-Brazil
communication, including, but not limited to, provisions on transparency, formalities, a single electronic
window, and documentation requirements, as well as provisions on corporate social responsibility. As
well as this, provisions dealing with discrimination and differential treatment are included, as well as
references to the TFA approach and further exemption for LDCs from applying a future investment
facilitation agreement's obligation. The proposal also includes National Focal Points or Ombudspeople.

Most of these suggestions were with host country disciplines, but the Chinese message also proposed
looking at these efficiencies from the host nation's standpoint.

The Russian message anticipated a number of potential challenges and urged the WTO to hold discussions
on them as part of any future investment guidelines. Some of the features included dispute prevention and
resolution procedures as well as openness. Investors may choose whether or not to offer comments to
governments, domestic regulation, and the choice of member states to carry out a self-assessed
implementation of any new laws.

As a consequence of these and other initiatives, a total of 70 WTO member states adopted the Joint
Ministerial Statement on Investment Facilitation for Development at the Eleventh Ministerial Conference
in Buenos Aires, Argentina in December of 2017.

This statement established plans for structured discussions on an extensive investment facilitation
framework, which would “improve the transparency and predictability of investment measures;
streamline and speed up administrative procedures and requirements; and enhance international
cooperation, information sharing, the exchange of best practices, and relations with relevant stakeholders,
including dispute prevention.”11

Aside from looking at how it would fit in with the existing WTO rules, these conversations also sought to
look at how the proposed framework for investment facilitation may fit into other platforms and situations
where investment facilitation is being discussed. A "core purpose" of the framework was to "enable
greater involvement of developing and least developed nation Members in global investment flows."
Signatories have already specified in the opening to this document that talks should not involve market
access, investor-state dispute settlement, or investor protection problems, as was observed.

Structured Discussions with regard to Investment Facilitation Post 2018

A organised conversation on investment facilitation began after the Buenos Aires Ministerial Conference
among the subscribing member states to the joint declaration. The first section of the debate focused on
the efforts made to compile a list of outstanding concerns for each of the topic areas addressed in the joint
statement. In 2018, a checklist of 81 unresolved concerns was produced and released. From January to
June of 2019, the second phase was carried out, and it was focused with the discussion and submission of
text-based examples of possible investment facilitation measures in order to include a possible framework
of measures that may be implemented to serve these aims. Member-state signatories, as well as
nonsignatories who were only witnesses at the meetings, as well as the group coordinator with his own
duties, provided these examples. References were made to the TFA, various BITs, services chapters of
free trade agreements, national legislations, etc.

11
(n 1)
As a result of these lengthy debates, a compendium was created that included all of the entries received
up to that point. While taking turns holding sticks on July 18, 2019, participating WTO member states
requested that the group coordinator be given responsibility for compiling and disseminating information
on the current status of proposed multilateral elements for investment facilitation, with a view toward
improvement. The succeeding July-December 2019 sessions focused on seven parts of the working
draught in an effort to find areas of agreement while also simplifying the document's content in order to
use it as a basis for future talks.

Overview of the July 2019 Working Document

Regardless of current positions and viewpoints being debated, the group coordinator prepared a working
document on July 24th, 2019 with the goal of assisting member states create the prerequisites for the
envisaged multilateral framework. As a result, it has a narrow focus and is still a highly restricted
document for use by the EU's member states only.

The working paper builds on the aforementioned compendium of text-based examples by highlighting
places where shared intents emerged from the extensive conversations on those examples between
January and June of 2019. As a result, only topics that had more than one text-based example were
included, and related examples were combined whenever practical. Alternatives and additional options
are supplied in square brackets if necessary.

To give us an idea of what the final preambular language may look like, the working paper outlines 29
articles based on the aspects of the multilateral framework that have been discovered so far. Each of the
seven parts has been divided into subgroups for ease of reference. These parts are summarised here, along
with some comments and citations for the terminology used in the draught.

"to facilitate the increasing participation of developing countries in investment flows," "to increase
investment, including in and by micro, small and medium enterprises" and "to provide investors...with a
transparent and predictable regulatory environment, as well as efficient procedures" are listed in the
Preamble of the proposed multilateral framework.. Good corporate governance processes and the need
for enforced corporate social responsibility are two more goals mentioned in square brackets. Investing in
"sustainable development, economic growth, poverty reduction, job creation, expansion of productive
capacity and trade" is also highlighted in the Preamble. A number of articles serve to reaffirm member
states' rights to regulate in the public interest and to aim for legitimate aims guided by public policy, and
to reiterate their responsibility to combat systemic corruption and to promote good public governance and
openness in general. Most of the preambular language is sourced from Brazil’s communication made in
January of 2018, where it had submitted a draft of Investment Facilitation Agreement, which was prepared
for the purpose of illustrating the first submission that had been made under the structured discussions,
instead of being submitted as a proposed negotiable text. 12

Section I (Scope and General Principles) consists of only two proposed articles, and fails to provide a
definition to “investment”. Article 1 (Scope) proposes three alternative methods to define the types of
measures that have been adopted or maintained by the member-states that shall be affected by the
proposed multilateral framework. Although Alternative 1 offers a broad coverage of “facilitation
measures…related to foreign direct investment in all sectors”, Alternative 2 (which furthers the proposals
offered in Brazil’s draft of Investment Facilitation Agreement) proposes that the multilateral framework
be applied to “facilitation measures…affecting the admission, establishment, acquisition and
expansion…of investments in services and non-services sectors,” being applied in either a general manner
or a sector-specific manner. It separates certain subject areas, like procurement by government and
concessions to the public, along with investment protection provisions and dispute resolution procedures.
Alternative 3 has proposed the application of measures related to qualification and licensing requirements
and other procedures concerning with economic activities “through commercial presence in the territory
of another Member” 13

Article 2 (Non-Discrimination) considers two alternatives, Alternative 1 entails a guarantee for most-
favoured nations (MFNs) categorical treatment for investors and their investments, “with respect to the
implementation of this framework.” It doesn’t clarify the manner in which it would apply before or after
the establishment of the investment. It further clarifies that the multilateral framework “shall not be
construed as to prevent any Member from conferring or according advantages to investors of any other
Member and their investments in the context of setting a common market or other forms of economic
integration.” This distinction is frequently referred to in MFN clauses of various investment treaties.
Moreover, it provides that the multilateral framework would “not replace and does not add to nor detract
from existing rights and obligations of Members under bilateral or plurilateral investment frameworks.”
Therefore, it makes an attempt to distinguish the multilateral framework from other existing investment

12
N Bernasconi-Osterwalder, S L Campos and C V der Ven‘The Proposed Multilateral Framework on Investment Facilitation’
(2020) IISD <https://www.iisd.org/system/files/2020-09/multilateral-framework-investment-facilitation-en.pdf> accessed 19
October 2021
13
S Baliño, M D Brauch and R Jose ‘Investment Facilitation: History and the latest developments in the structured discussions’
(2020) IISD https://www.jstor.org/stable/resrep21954 accessed 15 October 2021
treaties and chapters. However, it remains unclear how the multilateral framework could be stopped from
affecting existing obligations of member-states under other various international agreements. 14

Alternative 2 provides that “Investments of investors of each Member shall at all times be
accorded…treatment in the territory of any other Member”; the ellipsis in the aforementioned text is
present in the working document, and it remains to be seen what standard of treatment would be granted.
It also stops the impairment of investments due to discrimination or unreasonable measures affecting the
maintenance, enjoyment, management, use, sale or otherwise disposal of investments. The proposed
standard of treatment and an obligation to not adopt such measures, would provide investment protection
post-establishment of the investment, even though the framework “shall not address…investment
protection” as per the Joint Statement released in December of 2017.

These two aforementioned alternatives serve to showcase the different approaches to protection of
established investments that are being adopted through the means of non-discrimination provisions under
various investment treaties and chapters of free-trade agreements.

Section II (Transparency and Predictability of Investment Measures) starts with Article 3 (Publication
and Availability of Measures and Information), which provides a mandate to member-states to govern the
publication of investment protection and facilitation measures for the purpose of general application, and
also of information which would be necessary before investments can be made. It also imposes an
obligation on member-states to publish and to provide opportunities for “interested persons and the other
Members; investors and other interested parties” to make comments on the proposed measures. The
obligations to publish are there along with an obligation to send due notice to the WTO Committee on
Investment Facilitation (Article 4) and also to oversee the maintenance of points of enquiry for the
investors and other various member-states (Article 5). Furthermore, Article 6 (Specific Exceptions
Applicable to Transparency Requirements) offers clarification that the proposed provisions do not expect
the member-states to make public any confidential information.

Section III (Streamlining and Speeding Up Administrative Procedures and Requirements) offers a
proposal to impose obligations on member-states to guarantee the consistent, objective, impartial and
reasonable administration of the proposed measures (Article 7); the simplification and reduction of

14
‘Investment facilitation talks explore future Agrement integration into WTO legal structure’ (WTO, 5 October 2021)
https://www.wto.org/english/news_e/news21_e/infac_05oct21_e.htm accessed 15 October 2021
administration related procedures and requirements of documentation (Article 8); and furthermore, the
establishment of set criteria and other requirements as part of the administrative procedures (Article 9).
The proposed provisions go on to create proper guidelines for the member-states with regard to the
authorization procedures for investments (Article 10), the procedure to deal with incomplete applications
and possible rejections (Article 11), proposed fees and charges (Article 12), a periodic review of
administrative procedures and requirements of the member-states, with the objective of simplification and
streamlining the provisions (Article 13); the usage of electronic systems (Article 14). Article 15 and
Article 16 provides four alternatives to achieve the independence of the decision-making authorities.
Article 17 is concerned with binding obligations on member-states to establish and maintain the appeal
and review process under administrative procedures. 15

Section IV establishes binding obligations regarding Ombudspersons and other arrangements that will
work on enhancing cross-border cooperation for investment facilitation and preventing possible disputes.
Section V serves to outline different possible options for specific and differential treatment to be used by
developing and least developed member-states. Section VI covers cross-cutting issues with regards to
micro, small and medium enterprises, corporate social responsibility and prevention of corruption.
Section VII provides for institutional arrangements and final provisions. It proposes two alternatives to
create the WTO Committee on Investment Facilitation, which shall be open to all member-states, along
with regular meetings and mandates to monitor the functioning of the proposed multilateral framework.
This committee is similar in its nature to the Trade Facilitation Committee established under the WTO
Trade Facilitation Agreement. It further clarifies that the obligations under the proposed framework shall
not diminish any member-states’ obligations under the 1994 GATT or GATS, and other obligations under
TRIMS Agreement, nor shall it affect existing obligations under any other bilateral or multilateral
international agreements that have been entered into beforehand. 16

Looking Ahead to MC12

MC12 shall be the forum for discussion with regard to how this proposed framework shall fit into the
existing WTO Rulebook. There are two options up for consideration:

1. Option 1 is to agree on a critical mass agreement, similar to agreements under the proposed
Environmental Goods Agreement and the existing Information Technology Agreement. Under

15
‘Investment facilitation talks address S&DT, technical assistance and sustainable investment’ (WTO, 8 September 2021)
https://www.wto.org/english/news_e/news21_e/infac_15sep21_e.htm accessed 15 October 2021
16
Working Document on Multilateral Framework for Investment Facilitation 2019
 such an agreement, the parties would need to surpass a pre-decided minimum limit of world trade
in the relevant sectors, to ensure there are no “free riders”.
2. Option 2 is to undertake a plurilateral agreement which would be similar to what is seen under
the GPA, where both the commitments and the benefits would be available to the relevant subset.
For this, there is a need for consensus amongst the WTO member-states in order to add such an
agreement to Annexure IV of the Marrakesh Agreement, along with the other WTO plurilateral
agreements

To add to the complexity, the WTO is also dealing with a number of challenges that will have an impact
on the system's general functioning as well as its future orientation. There is little doubt that many of these
concerns will be discussed in the Kazakhstan ministerial and are having a substantial impact on the
Geneva negotiations now taking place. When it comes to the Appellate Body, one key concern is how
WTO members will handle the present impasse, which has been since the mandates of two additional
Appellate Body members ended in early December 2019. Because there is just one Appellate Body
member left, no appeals may be heard. Because it's unclear how this would effect future dispute
adjudication, it also raises the question of how it could influence WTO discussions, given that one of its
key characteristics for enforcing new rules will be lost indefinitely.