Based on Reyort to the Council by Negotiating Group (OECD, 1996c). 2 These items appear in the final MAi draft of April 1998 (see the Annex to this article) under the following sections: Section u: Scope and Application (definition); Section III: Treatment of Investors and Investments (pre- and post-establishment disciplines); Section iv: Investment Protection (post-establishment); Section v: Dispute Settlement (intended for pre- and post-establishment); and Section ix: Country-Specific Exceptions (note that these would be the mechanisms that would apply to the listing of such exceptions, not the exceptions themselves). ' OECD, 1996c.

4 Although a majority of delegations supported a definition with a "non-exhaustive" list of assets to be considered as investments, by February 1997 there was no final agreement on the definition (Dymond, 1997: 7; Schekulin, 1997: 10). As Canada's Chief Negotiator reported later, "An attempt by the Chairman to declare the definition agreed upon was sharply rebuffed by Canada and other countries." (Dymond, 1999: 40). As far as the dispute settlement mechanism was concerned, the most important stumbling block concerned whether investor- to-State arbitration should be covered. One source reported that at the January 1997 negotiations meeting, seven delegations (Australia, Denmark, Finland, Hungary, Japan, Mexico and Austria) withheld their formal support for such a provision, and one delegation (Norway) proposed an exemption from the investor-State dispute mechanism altogether (Inside U.S. Trade, 7 February 1997: 15). By the time countries submitted their exceptions in February 1997, disagreements remained on the types of lists to be included in the liberalization process, and how and when such negotiations should take place (Dymond, 1999: 35; UNCTAD, 1999d: 13, Engering, 1996: 152). 5 In investment treaties, all items are subject to negotiations since each has an impact on the final scope of the agreement and, therefore, on the degree of discretion retained by the signatories. Therefore, it is preferable that negotiators know the scope of the agreement prior to listing their country-specific exceptions. Thus, for example, the scope of the definition of investment and investor affects "the extent of the treaty coverage granted to foreign investors and ... the degree of host-State discretion in directing and implementing its foreign investment policy." (UNCTAD, 1999c: 3). The decision to apply national treatment (NT) to pre-establishment and post-establishment of invcstrnents-rather than to post-establishment alone-which the MAI negotiators agreed upon, held implications in that regard as well. Pre-establishment NT would mean that parties to the treaty grant national treatment to "all foreign investors unless such investment is to take place in activities or industries specifically excluded by the host country in a treaty. This option narrows considerably the discretion of a host country, since it can only use its prerogative to exclude specific activities from the operation of the standard at the time an agreement is completed." (UNCTAD. 1999a: 68). This meant that countries needed to exercise extreme care in listing their country-specific exceptions. Of all OECD Members, only the United States, Canada and Mexico had undertaken such a time-consuming exercise (under the NAFTA). Considering the time left to the deadline, this requirement alone represented a practical impossibility to finishing in the allotted time.

fi Title m of the Helms-Burton Act allowed "U.S. citizens and corporations whose property was confiscated by the Cuban government any time after 1 January 1959, to bring suits for damages to U.S. courts against anyone who [was deemed to] 'traffic' in their former property after 1 November 1996. Title IV prohibited] the entry into the United States by persons who traffic[ked] in confiscated property, as well as their families, after 12 March 1996." (Canner, 1998: 13). The Iran-Libya Act targeted companies which undertook investments in the petroleum industry in either of these countries (Dymond, 1999: 37). The following text from the French proposal on culture was reproduced in Dymond's article: "Nothing in this Agreement shall be construed to prevent any Contracting Party to take any measure to regulate investment of foreign companies and the condition of activities of these countries in the framework of policies designed to preserve and promote cultural and linguistic diversity." (Dymond, 1999: 52). France was supported by Canada, Italy, Belgium, Portugal, Greece and Australia. Opposing this proposal were the United States, the United Kingdom, Japan, Germany, the Netherlands, New Zealand and the Nordic countries (Dymond, 1999: 35). 7 Inside U.S. Trade, 28 March 1997: 3. Fast-track authority refers to powers given by Congress to the President of the United States to negotiate international economic agreements. These are granted for a limited time and had run out by the time the United States engaged in the Mn7 negotiations. For a good understanding of this policy issue between 1994 and 1999, see Kerrcmans, 1999: 49-85. 1 United States Information Agency, 1997: 3.

9 BIAC'S support and approval was expressed at a March 1996 workshop meeting by a member of BIAC'S Committee on International Investment and Multinational Enterprises. In his presentation, a Committee member recollected how BIAC was "first in" to produce, in the second half of 1992, a Statement on a Potential Broader Investment Instrument which contained the key elements for an eventual agreement along with the "business wish list" (see OECD, 1996a). TUAC had also contributed to the early discussions on a "Wider Investment Instrument" as the Mai was initially referred to. TUAC's request was that the "spirit and principles" contained in the 1976 OECD Guidelines for Multinational Enterprises be reflected in the MAI (OECD, 1996a: 23). 111 Inside U.S. Trade, 1 November 1996, p. 5; WWF notes from December 1996 meeting. The Guidelines for Multinational Enterprises are one of four elements of the 1976 OECD Dedaration on International Investment and Multinational Enterprises. They "establish voluntary standards of conduct representing the collective expectations of OECD governments as to the behaviour of such enterprises." (Witherell, 1996: 18).

�� The following is based on WWF notes on the December 1996 meeting: see WWF, 1996. 12 In order to demonstrate the validity of their argument, they undertook analyses of the impact that the MAI obligations would have on trade-related policies used to implement existing Multilateral Environmental Agreements (MEAs) and sustainable development projects. For example, one critique focused on the Rio Principles and Agenda 21, through which countries had committed to manage their economies in a way that would prevent environmental risks with what was called the "precautionary principle". NGOs argued that it was important to ensure that the dispute settlement process of the Mm did not interpret such policies as covert protectionism. Similarly, developing countries had agreed to signing the MEAS in exchange for compensation such as technology transfers which could be found in violation of MW obligations. These arguments were taken from the WwF's Consolidation Paper on the Mai, dated 17 February 1997 and authored by Nick Mabey (Mabey, 1997). See also Picciotto and Mayne (eds.), 1999, where these arguments are reproduced in more detail. �� Based on a WWF draft letter to OECD Ministers. z^ See OECD 1997c, which included: the preambular language reaffirming the negotiating Parties' commitment to the Rio Declaration on Enviromnent and Development and Agenda 21 along with similar references for labour standards and the International Labour Organisation (ILO), a provision under Section iv which stated that Parties recognized that "it is inappropriate to encourage investment by lowering [domestic] health, safety or environmental [standards] [measures] or relaxing [domestic] [core] labour standards, and the annexation of the OECD MNE Guidelines." Of these, only the preambular text was mostly in brackets at the request of the delegations which were against it. The British delegation, which had been "sceptical" on the inclusion of an environment clause, began changing attitude as the British elections approached. The "opponents of labour and environment clauses in the Mai were Australia, New Zealand, Korea and Mexico." (Huner, 1998: 5). Thus the two major negotiating parties, Europe and the United States, supported such inclusions.

�5 This paragraph is based on the issues of Inside U.S. Trade dated 28 March 1997, at p. 3; 4 April 1997, at p. 7; and 23 May 1997, at p. 11. ��� A letter sent to U.S. officials, dated 13 February 1997, was signed by the U.S. branches of W WF, Friends of the Earth, Greenpeace, the U.S. Center for International Environmental Law, the Sierra Club and other environmental organizations based in the United States: see Inside U.S. Trade, 21 February 1997: 12. Regarding the first point, Ncos requested that, in order for their concerns to be addressed appropriately, "the timetable for concluding the MAI must be substantially extended ... We thus join a number of our NGo colleagues abroad in calling for an extension of the Mai negotiating deadline by at least a year. i.e., until May 1998." (emphasis added). Regarding the second point, the letter stated: "non-binding hortatory language-such as 'green' preambular remarks, exhortations against competitive deregulation, or references to toothless guidelines on corporate behaviour-simply are not enough. These provisions do not even offer the minimal environmental requirements found in the NAFTA- which, we are all agreed, must be substantially improved in the global context of the MAI." (emphasis added).

z Letter from Labour's Spokesperson for Overseas Development to WWF, dated 11 April 1997. 18 See for example, the letter of the influential United States Council for International Business to the U.S. Administration, dated 21 March 1997, reproduced in Inside U.S. Trade, 28 March 1997, pp. 4-5.

19 The best example of such activists is found in the International Forum on Globalization (IFC). The Organization regrouped leading activists and intellectuals, some of whom had contributed to the North American campaigns against NAFTA and the Uruguay Round of trade negotiations that resulted in the creation of the World Trade Organization. IFG first convened in San Francisco in January 1994; this reunion aimed at developing conceptual and strategic innovations in the struggle against the processes of economic liberalization such as NAFTA and the WTO. IFG describes itself as "an alliance of sixty leading activists, scholars, economists, researchers and writers formed to stimulate new thinking, joint activity and public education in response to the rapidly emerging economic and political arrangement called the global economy ... Representing forty organizations in twenty countries, the Forum's participants have come together out of a shared concern that the world's corporate and political leadership is undertaking a restructuring of global politics and economics that may prove as historically significant as any event since the Industrial Revolution.": at the IFG Web site: owww.ifg.org�.

20 As was the case in the NAFTA, the dispute settlement mechanism provided for in the Mm allowed foreign investors to sue domestic (host) governments in cases of expropriation and violation of national treatment. The ability of investors to sue governments was objected to in and of itself, and in particular in combination with Article m, which dealt with investment protection. The concerns raised by the latter resided in the wording of what an expropriation consisted of. Article IV.2.1 included "measures having equivalent effect" (OECD, 1998a: 57-60). The fear was that any legislation could thereby be interpreted as expropriation and that this could render governments liable for compensation. 21 See for example, Observatoire de la Mondialisation, 1998: 44-48, distributed to the public and members of the legislative assembly; Friends of the Earth, 1998: 8; Australia's STOPMAI Web site, p. 5; Working Group on the WTo/MAI, 1997: 17, the Working Group includes, among others, Public Citizen, International Brotherhood of Teamsters, District 11 of the United Steelworkers of America, and Alliance for Democracy; see also Government of Canada, 1997: 25-28. -= In Canada, negotiations for the Free Trade Agreement with the United States, which took place in the mid- 1980s, and the 1991 negotiations for a North American Free Trade Agreement that would add Mexico, engendered strong debates and opposition campaigns. Sec Hart, 1992, and Appel Molot, 1994. In the United States, the lobbying of environmentalists resulted in the negotiations of an environmental side-agreement to the NAFTA. See Winham, 1994. For a description of anti-NnF rn campaigns in North America, see Healy and Macdonald, 1997. 23 For example, a letter dated 30 June 1997, addressed to the Assistant U.S. Trade Representative for Enviromnent and Natural Resources, was co-signed by, among others, Public Citizen and the Preamble Collaborative; see Inside U.S. Trade, 4 July 1997, 10.

24 It was observed subsequently that some delegations seemed to enjoy much autonomy and that little cross- departmental consultation seemed to have been taking place. Civil society groups from several countries commented on the difficulty they experienced in fmding the government bureaucrats responsible for the negotiations. =5 For example, on 29 May 1997, the Council of Canadians, with the support of groups such as the Sierra Club, placed a full-page ad. in The Globe and Mail which stated: "Next Election, your vote may be irrelevant ... The New Multilateral Agreement on Investment gives the corporations so much power Parliament won't matter." (The Globe and Mail, May 1998: 33-34). zb Id. z� See Government of Canada, 1997: 7.

21 Calling campaigns is a strategy used by NGOS whereby they invite their membership to phone particular individuals on specific dates. Since some of the NGOs have a particularly large membership base (for example the Sierra Club-U.S. counts some 600,000 members), the number of calls received by one individual can be overwhelming. NGOS target officials in the Administration as well as Members of Congress who are deemed to be likely to take political action on the issue rather than officials in the Office of the U.S. Trade Representative, for example. 29 Inside U.S. Trade, 14 November 1997, p. 11. 311 Dymond, 1999: 31. Note that this outcome was not solely due to the MAI opponents' campaign. However, failure of the fast track was linked to an attempt by the President to include labour and environment in the fast- track authority. Groups interested in these issues were also involved in the anti-MAI campaigns. More significantly, the debates revealed the frustration and disappointment of environmental groups with the NAFTA side-agreement s on labour and the environment and the WTO disputes that, in their view, had not safeguarded environmental policies. As such, in the United States, the Mai was part of a larger issue that united labour and environment. See Kerremans, 1999, for an in-depth explanation of these events. 31 As one North American activist worded it: "What we did when we met with [European] groups in January and afterwards was to say if you're going to mount a campaign in your country, one of the most important things that you need to do is to educate people in the government as well as the public at large about what this is about and to understand that there are different parts of your government that are going to be directly affected by it. So that the Minister of Health, the Minister ofEducation or the Minister of Culture, or the Minister of Social Programs or whatever, all of these and many more are going to be affected by the MAL The question is: are these departments even aware of what's going on?" 32 Unless otherwise indicated, the evidence collected to illustrate the remainder of this section was obtained though interviews conducted in the autumn of 1999 with activists in Europe and North America and with European officials.

33 Note that this analysis of the Mai was translated into several languages. 34 The Presidency of the European Parliament changes every six months. According to interviewees from the European Parliament, Austria was aware of and concerned by its own growing domestic opposition movement to the MAJ. That movement was started by a feminist academic who had obtained the Internet copy of MAl-Day: A Corporate Rule Treaty. 3S Beginning with an informal meeting in December 1997, regular strategy meetings were scheduled and lasted throughout the anti-MW campaign into the autumn of 1998. '" The following excerpts were taken from European Parliament, 1998: z55. 3� The final vote count was 437 in favour, 8 against and 62 abstentions. See European Parliament, Committee on External Economic Relations, 1998.

38 These activists also worked in close collaboration with the Greens from the Francophone region in Belgium called the Ecolos. The Ecolos Party, which was in opposition at the time, undertook public information campaigns as well as political challenges in Parliament and with politicians. This political party was also involved in the campaign to pass the report at the European Parliament. There is also evidence, based on interviews with activists and archival documents from the Observatoire de la Mondialisation, of North American activists meeting with politicians as far north as Sweden. 39 Two such meetings took place: one on 4 December 1997, and the other and more visible meeting on 22 April 1998. Proceedings of the latter were issued by the office of the President of the legislative assembly, Yves Cochct, as Actes du Colloquy du 22 avril, 1998 à I'Assemblee Nationale. ��� Huner, 1998: 5. Interviews also confirmed that officials agreed to meet NGOs in light of the growing opposition and in the hope of calming the antagonism which had been generated towards the MAI.

41 On 14 April 1997, the U.S.-based Ethyl Corporation "launched a NAFTA claim against the Government of Canada for damages done to its Canadian subsidiary by legislation which prohibit[ed] the importation and interprovincial trade of MMT, a manganese-based gasoline additive produced by Ethyl." (letter from Ethyl Corporation to World Development Movement, Friends of the Earth U.K. and WwF-U.K., dated April 1998). Since the "damage" was deemed to have been done as a result of Canadian Government legislation, MAI critics used this and other NAF I cases as examples of potential misuse of several MAl provisions which were similar to the NAFTA investment provisions. See Shrybman, 1998, and Swenarchuk, 1998, for the legal critique adopted by NGOs. 42 Based on interviews conducted with officials in Europe in the autumn of 1999.

43 See Graham, 1998, for an informed discussion on this topic. z This argument appeared on many NGO Web sites. The following is an example taken from the submission of the Sierra Club of Canada to the Canadian Government Hearings on the MAI on 18 November 1997: "The MAI would restrict Members of Parliament's freedom to legislate, without fear or threat of fmancial penalty to Canada, to protect the environment, public health and other non-monetary interests deeply valued by Canadians ... While the proposed Mm wouldn't stop governments from enforcing environmental laws or enacting new ones, the MAI would allow those foreign investors to turn around and sue taxpayers, to recover their lost profits. And that's the chilling effect of the MAi and our primary concern. Governments aren't going to think once, they're going to think fifty times before enacting future environmental legislation." " as This document appeared on the Web sites of numerous anti-Mm groups as well as on that of the OECD (<<http://www.oecd.org''). Copies were also found in publications such as Jackson and Sanger (eds.), 1998: 319-324; and trade journals such as Inside U.S. Trade, 7 November 1997: 16-17. ab See Jackson and Sanger (eds.), 1998: 324-337, for a list of these organizations.

�� This sudden interest in improving upon the environmental and labour provisions was indicative of the growing pressure in the United States. Indeed, as the Negotiating Group Chair's representative observed, during the three years of preparatory work on the MAI, no discussions had taken place on how the MAI would relate to Multilateral Environmental Agreements (MEAS) although work on the relationship of the MAI to other Agreements had taken place. Such an oversight on the part of European experts might have been understood since, outside of the NAFTA, no other international Agreement contained environmental provisions. The question was raised, however, as to why the United States had not brought up the environment earlier on, in the light of that country's experience with the opposition to the NAFTA, and considering the compromises on environment and labour which had enabled that Administration to obtain ratification of that Agreement (Huner, 1998: 3). 48 Inside U.S. Trade, 11 July 1997, p. 1.

'" This request had been the first item on a list of requests made in a letter from the WWF and endorsed by a group of Ncos (Correspondence from Dr Claude Martin, Director-General, WWF International, dated 19 May 1997). The WWF had first requested this in vain from the previous British government as early as December 1996 (WWF, 1998). This new British proposal was submitted in DAFFE/MAI/RD(97)43 in September 1997 and the delegation followed up with another request submitted in Oecd, 1997b, at the negotiations meeting of 29-30 October 1997. In a letter dated 4 November 1997, the Department of Trade and Industry wrote to WwF providing feedback on that meeting and stating that: "an important U.K. objective was to speed up work on an environmental review of the Mai ... The review will be discussed in December and January and I expect a report will be published early in 1998 with a view to getting further NGO reactions/suggestion and taking necessary action before negotiations conclude." 511 See Mabey, 1999: 17. 51 See id., regarding the three last OECD documents listed. 52 The excerpts quoted as taken from the Annex to Engering's Paper on Labour and Environment as reproduced in Inside U.S. Trade, 27 March 1998, pp. 17-19.

53 Paragraph 3 of the OLci3's Ministerial Statement on the Multilateral Agreement on Investment (Mrdt) read as follows: "... taking into account the positive results produced by the Negotiating Group, as well as the remaining difficulties and the concerns that have been expressed. Ministers decide on a period of assessment and further consultation between the negotiating parties and with interested parts of their societies, and invite the Secretary- General to assist this process. Ministers note that the next meeting of the Negotiating Group will be held in October 1998. Ministers direct the negotiators to continue their work with the aim of reaching a successful and timely conclusion of the MAI and seeking broad participation in it. In the same spirit, they support the current work programme on investment in the WTO and once the work programme has been completed will seek the support of all their partners for next steps towards the creation of investment rules in the WTO."

5'� See Inside U.S. Trade issues between 13 February 1998 and 20 April 1998. Also confirmed during interviews with officials conducted in the autumn of 1999.

55 Although cultural groups in France, concerned about the inclusion of intellectual property rights in the MAI, began a visible campaign focused on their specific interests regarding the protection of culture, eventually they joined other groups under one effective campaign directed against the MAI more generally. For an explanation of the intellectual property rights issues see Gervais and Nicholas-Gervais, 1999. 5� See, for example, Le Monde, 13 February 1998, where it is reported that the Green Representative, Yves Cochet, confronted Dominique Strausse-Kahn, the then French Minister of the Economy and Finance, on the MAt. �� See Lalumiere and Landau, 1998, on the French Government's Web site at «www.finances.gouv.fr.». 5H These motions were found on the minutes from the meeting and numbered decisions Cnir-98-216 and Cnir-98-219. 59 See French daily newspapers such as Le Figaro and L'Humanite from these dates.

60 For a complete reproduction of these speeches, see L'Humanite, 15 October 1998, p. 4.

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