1. Eglin Table Post Establishment Treat’tPre-establishment Treat’t MFN National treatment Transparency Development provisions Balance of payments safeguards Exceptions Others MFN National treatment Transparency Development provisions Balance of payments safeguards Exceptions Others Application to FDI Portfolio Investment

2. Reactions to Eglin Table The starting point is the status quo approach of the rights of the investor Balancing elements, Doha elements, addressed in that primary context State and public interests, public welfare issues developed more as exceptions than as primary rights

3. Is there an alternative? (1) Alternative purpose and objective: –Investment Agreement for Sustainable Development –Not new to international law or WTO: In keeping with WTO preamble Appellate Body decisions on relation of concept of sustainable development to WTO rights and obligations Investment rights and obligations must address the full relationship between an investment and the host state/community

4. Is there an alternative? (2) Three co-equal, inter-related subjects of rights and oblig’s ActorPre-estab’tPost-estab’t Foreign Investor (definitions, portfolio?, scope of activity covered) -rights -obligations -rights -obligations Host state-rights -obligations -rights -obligations Home state-rights -obligations -rights -obligations

5. Foreign Investor For. Inv’rPre-estabPost-estab Rights Scope of right of establishment National treatment MFN ?? Min. standards of treatment/Transparency Performance requirements? Others ?? National Treatment MFN ?? Minimum standards of treatment/Transparency Performance requirements? Expropriation Repatriation, staffing Others ?? Obligations -common minimum floor Minimum standards in: -Env’t impact assessment -Anti-corruption -Full disclosure of purposes, history Minimum standards in: -Environmental management -International env’t standards -Anti-corruption -Corporate accountability -Compliance w/national laws -Basic human rights -Core labour standards Liability of the investor and investment

6. Host State Pre-estabPost-estab Rights -Maintain development priorities -Performance requirements (market disciplines) -To establish high environmental/human health standards -Maintain development priorities as agreed, under law -Right to regulate in public interest (public welfare, environment, etc.) Obligations -Establish transparent legal and administrative processes -Anti-corruption -Not to reduce environmental standards to attract investment -Prevent subversion of MEA’s, int’l labour standards -Not to reduce standards to maintain investment -Non-discrimination, pay for expropriated property, due process, etc. -Prevent subversion of MEAs, int’l labour standards

7. Home State Home statePre-estabPost-estab Rights -Promote agreed terms-Assist investors -Subrogation of rights -State-state disputes Obligations -Respect for basic norms of sustainable development -Anti-corruption obligations -Assist host states in institutional development -Respect for basic norms of sustainable development -Ensure impediments to liability of investor are removed -Anti-corruption obligations

8. Dispute resolution Exhaustion of local remedies –Stronger support to domestic institution building State-state Investor-state: –based on balanced substantive law Principles –Transparency open to public at all phases; amicus –Accountability In choice of arbitrators Appellate process –Legitimacy: comes from all of above