国际投资协定

第三节　国际投资协定

Section 3　International Investment Agreement

【The Fundamental】

International law has been slow establishing standards regarding how nations ought to treat foreign investment. The United Nations’ efforts to draft a code of conduct for multinational enterprises did not include provisions regulating the conduct of host nations. The one-side efforts of the UN were thus quite unsatisfactory to foreign investors, who sought assistance from their home nations. Bilateral investments treaties (BITs) have provided some help. To promote national treatment and protect United States investors abroad, the United States embarked on the BIT program in the early 1980s. The BIT program followed earlier extensive use of Friendship, Commerce, and Navigation (FCNs) treaties.^[28]Unlike the FCNs, the model BIT distinguish treatment for foreign owned, domestically incorporated subsidiaries and branches of foreign firms for some provisions, particularly employment.

As a result of the Sumtitomo Shoji America, Inc. v. Avagliana, 457 U.S. 176 (1982) decision, the FCN treaty afforded no protection to a foreign company using its national in hiring. Under the typical BIT, explicit freedom to hire foreign nationals exists in a narrow range of management provisions. But investment screening mechanisms and key sectors often remain exempt from BIT protection, typically listed in the Annex to a BIT. While elimination of foreign investment screening and imposition of performance requirements has been an object of the BIT program, these provisions of the model BIT have been weakened in the treaties currently on force. It is not only the United States which has emphasized these treaties, they are common features of most developed nations in their relationship with host nations for foreign investment. For example, China has investment protection agreements with such nations as Australia, Austria, Belgium-Luxembourg, Denmark, France, Germany, Japan, the Netherlands, and the United Kingdom. A benefit ofsuch an agreement is that its provisions prevail over domestic law, although the agreements usually allow for exceptions to investment protection when in the interests of national security.

The United States has entered into a number of bilateral investment treaties, as well as a number of less formal bilateral trade agreements. But a trade agreement may merely refer to investment as an area for further discussion, tending to deal only with tariff and nontariff barriers to trade. The bilateral investment treaties do address investment issues. They generally replace their earlier Friendship, Commerce ＆ Navigation treaties, to the extent that they apply to investments. While many of the first BITs were negotiated with small developing countries, more recently the United States has signed BITs with such important trading nations as Argentina. The Argentina—United States BIT follows the United States BIT prototype of addressing both investment protection and investor access to each other’s markets.

The BITs do not prohibit nations from enacting investment laws, but provide that any such laws should not interfere with any rights in the treaty. The free access aspect of some BITs may not be perceived as a right. Thus investment laws might be enacted which limit access to certain areas, but would not create a right of the party to challenge the law under the BIT.

One important provision the United States seeks to include in its BITs is the “prompt, adequate and effective” concept^[29](if not always the language) of compensation following expropriation. Many of the nations which have recently agrees to this language disputed its appropriateness during the nationalistic North-South dialogue years of the 1960s and 1970s. But as they began to promote rather than restrict investment, these nations had to accept the idea that expropriated investment should be compensated reasonably soon after the taking(“prompt”), based on a fair valuation (“adequate”), and in a realistic form (“effective”). The Argentina-United States BIT uses language referring to the “fair market value ...immediately before the expropriation action”.

Most BITs do not include provisions for consultations when differences arise in the interpretation of the treaty. The Argentina-United States BIT is one of a very few exceptions with no necessary recourse to prior exhaustion of local remedies.

The BIT process is quite dynamic. Each successive agreement with a new country may include some new provisions. The United States has an prototype agreement, but it has been modified as host nations have sought new foreign investment and have been willing to sign a BIT to establish the most attractive conditions for the investment. It is certain that the BITs in existence today will not be identical to BITs executed in years ahead. BITs are an important contribution of the developed home nation to lessening the risk for their multinationals investing abroad. A BIT establishes some ground rules for investment on a bilateral, treaty basis which should not be unilaterally altered by the host nation to impose restrictions on the investments which inconsistent with the BIT. Certainly, revolutionary governments have ignored similar agreements in the past and may in the future. But the BITs do provide some investment security, at least as long as the host governments remain relatively stable, and receptive to foreign investment. BITs are not likely to disappear with the completion of the GATT Uruguay Round and the creation of the WTO. The GATT/WTO rules regarding investment are a step in the right direction, but remain less specific than agreements among smaller groups of nations (such as the NAFTA), or bilateral agreements.

A. Foreign Investment Under the North American Free Trade Agreement

United States foreign investors in Canada and Mexico may benefit from the provisions of the North American Free Trade Agreement (NAFTA). Chapter 11 covers foreign investment. Section A includes provisions affecting Investment, while Section B addresses the Settlement of Disputes between a Party and an Investor of Another party. The investment provisions in chapter 11 to extent reflect provisions in the Canada-Unite States FTA, but there are some provisions unique to the NAFTA. For example, provisions for local management and control were important provisions in the 1973 Mexican Investment Law. NAFTA, as well as the newer 1993 Mexican Investment Law, prohibit mandating the nationality of senior management. But NAFTA does not allow for requirements that the majority of the board of an enterprise which is a foreign investment be of a particular nationality, or resident in the territory, provided that such a requirement does not materially impair the investor’s control over the investment. The provisions attempt to balance eliminating the distortions associated with mandating local management, with ensuring that host nation input is provided. NAFTA investment rules are based on the concept of national treatment.^[30]Thus each nation must grant investors of theother member nations treatment no less favorable than is granted to domestic investors. Another central is the requirement that each member nation grant investors of the other member nations treatment no less favorable than is granted to any other nation outside NAFTA.^[31]Performance requirements are prohibited under NAFTA, and the provisions specifically list seven areas of prohibited performances requirements.^[32]But a nation may impose measures to meet protection of life or health, safety, or environmental rules. Incentives to invest also may not be conditioned on most performance requirements, but may be conditioned on location, provisions of services, training or employing workers, constructing or expanding facilities, or undertaking research.

NAFTA allows investors to freely transfer profits, dividends, interest, capital, royalties, management and technical advice fees, and other fees, as well as proceeds from the sale of the investment and various payment (such as loan payments). But limitations on transfers may be made involving certain bankruptcy actions, securities dealings, criminal acts, issues involving property, reporting of transfers, and to ensure satisfaction of judgments.

Each of the members nations of NAFTA listed exceptions to the investment rules, thus deviating from the basic principle of national treatment. Some exceptions were mandated by the nation’s constitution, others by federal law. Where a nation has made exceptions which disallow foreign participation, it may either reverse the area for national ownership or exclusively for private domestic ownership. But it may also allow some foreign participation. Thus, some of the restrictive nature of earlier investment laws is preserved, but in a considerably more limited form.

B. Foreign Investment Under the GATT/Word Trade Organization

Previous to the Uruguay Round the GATT did not address issues of foreign investment. But the Uruguay Round produced the rules on foreign investment, referred to as Trade Related Aspects of Investment Measures, TRIMs.^[33]These measures are considerably briefer than those in the NAFTA, and only one provision relates to dispute settlement. That article states that the provisions of the General Agreement relating to Consultation (XXII), and theUnderstanding on Rules and Procedures Governing the Settlement of Disputes under those articles, apply to consultations and disputes settlement under the TRIMS provisions. Thus, there are no separate provisions directed to uniqueness of investment disputes, as in the NAFTA. It will take time to determine how effective the WTO provisions are to resolving investment disputes.

The GATT Uruguay Round produced significant new investment rules. Prior to this Round, the GATT had not directly governed foreign investment. The new rules are thus an important development. But as must be expected with any large organization with divergent views, the investment provisions of the new WTO are not as comprehensive as those discussed above in the NAFTA.

The WTO investment rules or TRIMs first set forth a national treatment principal. TRIMs which are considered inconsistent with WTO obligations are listed in an annex, and include such performance requirements as minimum domestic content, imports limited or linked to exports, restrictions on access to foreign exchange to limit imports for use in the investment, etc. Developing countries are allowed to “deviate temporarily” from the national treatment concept, thus diminishing in value the effectiveness of the WTO investment provisions, and obviously discouraging investment in nations which have a history of imposing investment restrictions, and making such agreements as the NAFTA all the more useful and likely to spread.

The essence of the TRIMs is to establish the same principle of national treatment for investment as has been in effect for trade. TRIMs are incorporated in the overall structure of the WTO, alongside trade measures, rather than being treated as a quite distinct area. Because all the deficiencies of the WTO with regard to trade measures may apply to TRIMs it remains to be seen how effective these measures will be in governing foreign investment. Because the measures are much less certain those included in bilateral investment treaties and small areas free trade agreements, it is likely that much of the regulations of foreign investment will develop in the context of the latter rather than within the WTO.

C. The Multilateral Investment Guarantee Agency (MIGA)

In the early 1980s, the staff of the World Bank, urged by its new President, A.W. Clausen of the United States, launched a project for a Bank-sponsored multinational agency that would“enhance the flow of developing countries of capital and technology for productive purpose”by improving the conditions for direct investment and reducing—and insuring against—the political risks of such investment. The promoters of MIGA had two purposes in mind. One, ofcourse, was to create investment guarantee agency linked in some way to the World Bank. Beyond this, but involving all members of the World Bank in serious debate and information exchange, the sponsors of MIGA sought to change the “investment climate” in developing countries.

The 1970s had been the decade of the New International Economic Order. In the five years preceding the first consideration of MIGA on 1983 by the Executive Directors of the World Bank, i.e. 1978-82, 42 expropriations had taken place in 24 countries of Africa, Latin America, and Asia. At the same time, the debt of crisis of many developing countries had severely slowed down commercial bank lending, and hag further undermined confidence among potential investors in the developing world. MIGA would be a vehicle; it was hoped, for turning these trends around. This could be achieved by a combination of technical assistance to developing countries that sought to attract foreign investment—what kind of laws, infrastructure, and attitudes would be useful—and by establishing an institution whose common purpose would be clear, but where the developing countries, i.e. the potential host countries, would have an equal say with the developed countries.

Thus MIGA could serve as an honest broker, “guiding all concerned parties”, as its brochure stated, “toward a common definition of fairness and equitable treatment”. in addition to investment guarantees and insurance, MIGA’s Legal and Claims Department could provide legal advice and guidance to parties involved in investment disputes, nor necessarily covered by an investment guarantee issued by MIGA.

The World Bank’s Board of Governors approved the MIGA Convention in the fall of 1985, but it look two and a half more years before the minimum number of states in each category—five from Category One, the developed states, and fifteen from Category Tow, the developing states—had deposited their instruments of ratification. As of year-end 2001 MIGA had 22 industrial and 132 developing country members.

(Adapted from Chapter 5 of International Trade and Investment in a Nutshell Written by Ralph H. Folsom, Michael W. Gordon, John A. Spanogle , USA and published by West Group in 2000 and Chapter 15 of International Economic law Written by Andreas F. Lowenfeld , USA and published by Oxford University Press in 2003.)

[The Reflections]

1. What’s the difference between a trade agreement and a bilateral investment treaty?

2. What are the unique provisions of the NAFTA expressed in this article?

3. What issues are limited on transfer according to NAFTA?

4. What’s the main difference between the Uruguay Round GATT and the previous ones?

5. How is a dispute settled in accordance with TRIMs regulated in the Uruguay Round GATT? And what’s the defect of this provision?

6. What’s the essence of TRIMs? And what’s the role of TRIMs in the structure of WTO?

7. Why MIGA was compared to a vehicle? How does it achieve its function?

【The In-depth】

When BITs Have Some Bite: The Political-economic Environment for Bilateral Investment Treaties

A. Introduction

Standard economic models fail to explain why capital does not flow more readily from rich to poor countries. In spite of recent spikes in capital flows to a small number of low-income countries, many are left behind. One answer is the failure of institutions in low-income countries to protect and support capital investment. The political-economy research claims that, in spite of underlying investment opportunities, political risk often impedes the flow of capital. Within developing countries, one response is to adopt innovative strategies that aim to attract greater flows of international investment and trade by changing the institutional environment and limiting the risk to outside investors. Along with the World Trade Organization and Preferential Trade Agreements (PTA), Bilateral Investment Treaties(BITs) are a prominent example of such an institution. BITs, and the investment chapters of PTAs, allow governments to “tie their hands” against uncompensated expropriation and in so doing seek to decrease the perceived risks to foreign investors and thus attract greater flows of foreign direct investment (FDI).

The literature on BITs has grown exponentially in recent years. Although much has been written on the relationship between BITs and FDI—the primary purpose of the treaties—understanding of that relationship is still quite weak. This article attempts a more definitive analysis of the link from both a theoretical and an empirical perspective. We argue that BITs do attract FDI to developing countries, but the story is a complicated one. Twoimportant factors must be taken into account: BITs as a credible commitment to foreign investors and the global surge in BITs.

First, we unpack the concept of credible commitments in this context. We argue that BITs signal a commitment to investor-friendly domestic institutions. Further, once signed, BITs provide an incentive to states to enact and maintain a favorable institutional environment. Because investors can learn about the investment environment in ways other than simply observing BITs, these treaties cannot substitute for an otherwise weak investment environment. Rather, they complement the existing environment by helping to convince investors that domestic institutions will work as claimed to protect FDI. We show that the marginal impact of a BIT is greater in developing countries that have relatively effective legal regimes and favorable economic environments. BITs serve as complements to, not substitutes for, the overall environment for foreign investment in a developing country. BITs’ main role, therefore, is to enhance the value of other information about the institutional environment. For emerging economies that need to convince investors of their credible commitment to property rights and the rule of law, the number of BITs in force with wealthy countries sends a positive signal about domestic conditions for foreign investment, especially in interaction with other information on the country.

Second, even where BITs do complement domestic conditions, the global surge in BITs has weakened the treaties as a tool for attracting FDI to a particular country. The greater the coverage of BITs in all developing and emerging economies, the less extra FDI an individual BIT will generate in any one country. Even assuming that the marginal impact of a country’s own BITs on FDI is positive, that marginal impact falls as the global coverage of BITs grows. In any time period, developing countries compete for a limited supply of investment funds. The global supply is higher when BITs are in place and domestic institutional environments are strong, but it is still finite. The share that any one country can attract depends, in part, on opportunities elsewhere.

Testing the empirical support for our hypotheses concerning FDI is important for two reasons. First, there is an ongoing debate over whether BITs bolster FDI, and published work comes to conflicting conclusions. Second, and perhaps more important, FDI is a prime indicator of investors’ confidence in a country’s investment environment; hence it is important to understand its determinants and their link to a country’s policy choices.

Our results provide new insights along two different dimensions. First, we provide new results that contribute to the literature on international institutions. We show that an importantinstitution for dealing with domestic political risk—the BIT—does indeed have an effect on FDI. However, this impact can only be understood within the context of the broader domestic and political environment in the host country. Second, the conditional nature of BITs that we find goes beyond the unconditional relationship found in the extant literature on BITs and FDI.

B. Rearch results

According to Considerable evidenee accel research, we find that the positive impact of BITs on FDI appears to be filtered through aspects of the political and economic environment. Once these interactions are taken into account, there is little direct impact of BITs on FDI flows into a country. Specifically, as the level of risk decreases and/or the economic and absorptive capacity of a country increases, the impact of BITs on FDI grows stronger. At the same time, as more countries in the world enter into BITs, any positive impact of BITs on a country’s FDI falls. That is, as a developing country enters into greater numbers of BITs, the positive impact is moderated by other BITs in force in the world, but augmented by the overall environment for investment in a country.

To gain a better understanding of the substantive implications of our results we analyzed the following counterfactual: How would enter into BITs affect FDI flows to an individual country if BITs had remained a relatively novel feature in the global economy? We do this with out-of-sample predictions. We re-estimate the equation, which included the interaction between a country’s own BITs and the number of BITs in the world, excluding observed FDI data for time periods beyond which the number of BITs in the world began to increase substantially. We then predicted FDI flows to each country based on our model and compare that to the actual FDI data. We find that, on average, entering into an additional BIT would have resulted in 4.6% greater FDI flows, if the number of BITs signed by other countries had remained low.

In the current climate with over 1 000 BITs in force with OECD countries, developing countries would do much better to concentrate on improving their domestic investment environment through efforts to limit political risk and assure all investors of a secure environment. Only then will BITs be an important tool for the encouragement of FDI.

Finally, as with any large-N analysis, we were concerned that a few outliers might have unduly affected our results. For example, China, a country with few BITs is, nonetheless, a major location for FDI and, increasingly, a source for FDI. We first examined the means and standard deviations of the variables themselves to check for anything unusual. A few country time periods did stand out in terms of low numbers of BITs with extremely high FDI inflows.These countries included Brazil, China and Mexico over the last three time periods. Their inclusion in the data set did not seriously affect our results, and we felt that their exclusion would be non-random. Finally, we used a number of standard regression diagnostics, including cooks distances and added-variable plots. The tests revealed very few disproportionately influential observations: only Argentina and Poland stood out. Removing these had no effect on the results, and thus we retained them in our estimation.

The most important conclusion to draw from these robustness checks is that the substantive conclusions of our model remain the same: the effect of BITs on FDI is highly dependent on the surrounding investment environment.

C. Conclusion

Over the past few years, BITs have become a common tool for developing countries that seek to attract FDI. Most past research claims that BITs’ role is to substitute for weak domestic institutions, providing greater investor protections where domestic governments are unable to do so. We agree with the general point that countries with strong domestic institutions do not need BITs to attract FDI. However, we argue theoretically and find empirically that within the universe of low-and moderate-income countries, these treaties only have a positive impact on FDI flows as complements to—not substitutes for—the domestic investment environment. Entering into treaties with OECD countries generally appears to serve as a credible commitment to foreign investors of a welcome investment environment, and that signal is stronger the greater the number of BITs in force. Other indications of the strength of the political environment for investment and of a better local economic environment are complements to BITs. Poor countries cannot bootstrap an aggressive program of entering into BITs into a major increase in FDI. They cannot avoid the hard work of improving their own domestic environment for investment.

The impact of BITs also depends upon the extent of the global BITs regime. As the coverage of BITs increases, even if overall FDI flows to developing countries increase, we provide some evidence that the marginal effect of a country’s own BITs on its own FDI will fall. Thus, if there are other costs associated with BITs, countries may be less eager to enter into such treaties over time. If BITs limit the country’s profit per dollar of FDI even as they increase the volume of investment, a fall in the marginal impact of BITs on the volume of FDI will reduce the net benefits of BITs. However, countries may continue to enter into BITs because, even if the absolute benefits have fallen, being inside the BITs regime may be better, at present, than being outside it. The relative benefits of BITs may still be high.

An individual host country’s BITs cannot be judged in isolation. The impact of BIT son acountry’s FDI flows must be studied within the context of its political, economic and institutional environment and in the light of the worldwide BITs regime. Only with a broader understanding of the global political-economic environment for investment can we fully understand the impact of BIT programs on FDI flows.

(Written by Jennifer L. Tobin and Susan Rose-Ackerman from THE REVIEW OF INTERNATIONAL ORGANIZATIONS, 2011,volume 6,number 1,pages 1-32.)

[The Terms]

1. FDI: 外国直接投资

2. OECD: 世界经济与合作发展组织

3. institutional environment: 体制环境

4. Preferential Trade agreements (PTA): 特惠贸易协定

5. marginal impact: 边际影响

6. empirical support: 实证支持

7. international institutions: 国际机构

[The Discussions]

1. Why does the global surge in BITs weaken the function of the treaties?

2. What’s the role of BITs for developing counties that seek FDI? Why? Under what kind of situation does BITs helpless for the attracting of FDI?

3. Are the functions of BITs different in developing countries and developed countries? Why?

4. What’s the conclusion of this article? Do you agree to it?

【The Further Sources】

Jason Webb Yackee, Bilateral Investment Treaties, Credible Commitment, and the Rule of(International) Law: Do BITs Promote Foreign Direct Investment?, Law ＆ Society Review Volume 42, Issue 4, pages 805—832, December 2008.

J Tobin, S.R. Ackerman, Foreign Direct Investment and the Business Environment in Developing Countries: The Impact of Bilateral Investment Treaties, Yale Law ＆ Economics Research (2005).

J.W. Yackee , Do BITs Really Work? Revisiting the Empirical Link between Investment Treaties and Foreign Direct Investment, Univ. of Wisconsin Legal Studies Research Paper No. 1054 (2007).

【注释】

[1]合营，又称合资公司，一般定义为由两家公司共同投入资本成立，分别拥有部分股权，并共同分享利润、支出、风险、及对该公司的控制权。这种形式在石油公司非常常见，并常以一家本国公司与一家外国公司合作的形式成立。借由这样的合作形式，本国公司可以获得它所不足的技术设备，而外国公司也可利用本国公司对该国的熟悉与政治关系。

[2]双边投资协定，是国家与国家之间为了鼓励、促进和保护本国在对方境内的投资而签署的双边条约。其类型主要包括：友好通商航海条约，投资保证协定，促进与保护投资协定。双边投资协定包含的主要内容有：投资的范围和定义、批准和设立、国民待遇、最惠国待遇、公平和公正待遇、征收以及投资损害的补偿、资本自由转移、争端解决机制等。

[3]自由边境区，早期亦称自由贸易区域，为自由港区的一种形式。是在与邻国接壤的边远省或边境城市中划出的专供对邻国自由进出货物的地区，按自由贸易区或出口加工区的优惠措施，吸引国内外厂商投资，以开发边远地区经济的自由区域。

[4]自由贸易区，又称自由区、工商业自由贸易区、出口自由区、自由关税区、免税贸易区、免税区、自由贸易港、自由市、自由工业区、投资促进区及对外贸易区等。指两个或两个以上的国家通过达成某种协定或条约取消相互之间的关税和与关税具有同等效力的其他措施，在主权国家或地区的关境以外，划出特定的区域，准许外国商品豁免关税自由进出。

[5]出口加工区，指一个国家或地区为利用外资、发展出口导向工业、扩大对外贸易而设立的以制造、加工或装配出口商品为主的特殊区域。经济特区的形式之一，常享受减免各种地方征税的优惠。出口加工区一般选在经济相对发达、交通运输和对外贸易方便、劳动力资源充足、城市发展基础较好的地区，多设于沿海港口或国家边境附近。

[6]联合国贸易和发展会议，成立于1964年，是联合国大会常设机构之一，是审议有关国家贸易与经济发展问题的国际经济组织，是联合国系统内唯一综合处理发展和贸易、资金、技术、投资和可持续发展领域相关问题的政府间机构，总部设在瑞士日内瓦，目前有成员国188个。

[7]联合国工业发展组织，成立于1966年，是联合国大会的多边技术援助机构，1985年6月正式改为联合国专门机构。宗旨是同170多个成员国合作促进和加速发展中国家的工业化进程及实施可持续性发展战略。任务是“帮助促进和加速发展中国家的工业化和协调联合国系统在工业发展方面的活动”。

[8]墨西哥边境加工出口区，指新墨西哥/齐瓦瓦州边境带，是加工出口区的典型。该区域有着300个加工出口公司，拥有独一无二的地理位置，熟练的工人，优势的物流，是美墨边境最大的工业基地。它给公司提供了能融入几百万美金的加工出口业的机会，以及运到美国、加拿大和墨西哥市场的低货运成本。

[9]特设。

[10]国有化。国有化是指将私人企业的生产资料收归国家所有的过程。国有化是国家所有制经济形成过程中的一条重要途径。国有化与征收即相互联系又相互区别，征收是指为了公共利益的需要，国家把私人所有的财产强制地征归国有。

[11]非歧视原则，贸易关系中包含了三个层次的要求：最惠国待遇、国民待遇、互惠待遇。

[12]美国海外私人投资公司（OPIC）成立于1971年，它是一个独立的、自负盈亏的政府机构。其提供的服务主要包括：一、通过提供贷款和贷款担保为企业融资；二、对那些为美国公司海外投资项目而投入的私人投资基金提供支持；三、为美国海外私人投资所可能产生的政治风险提供担保，包括货币不可兑换风险、财产被没收风险及政治动乱风险；四、为美国商界提供海外投资机会。

[13]多边投资担保机构（Multinational Investment Guarantee Agency，MIGA）成立于1988年，总部设在美国华盛顿，是世界银行为促进外国资本直接向发展中国家投资而设立的机构。其宗旨是向外国私人投资者提供政治风险担保，包括征收风险、货币转移限制、违约、战争和内乱风险担保，并向成员国政府提供投资促进服务，加强成员国吸引外资的能力，从而推动外商直接投资流入发展中国家。

[14]1982年出口贸易公司法，是美国为了解决七十年代以来不断加剧的贸易逆差，增强出口贸易功能而通过的法案。

[15]准独立实体。

[16]美国国际开发署（United States Agency for International Development，USAID），是承担美国大部分对外非军事援助的联邦政府机构。美国国际开发署作为一个独立的联邦机构，依照美国国务院的外交政策，力求“为海外那些为过上美好生活而努力、进行着灾后重建、以及为求生活于民主自由之国家而奋斗的人们提供帮助”。

[17]依职权的，当然的。指权力无需另外授权，而是其自身固有的。

[18]美国贸易代表办公室（Office of the United States Trade Representative，英文简称USTR）是美国政府的一个行政部门，美国总统办事机构的一部分。它负责在双边和多边的层面上推行美国的贸易政策。代表处的首长称为“美国贸易代表”，是一个和内阁同级的职位，可是并不是内阁的一部分。

[19]实际所有权。

[20]在外股票；流通股票。指已发行尚未偿付的股票；由投资者拥有、发行公司未回购的股票。亦称作outstanding capitalstock；shares outstanding。

[21]征收，是指国家基于公共利益的需要将外国投资者的财产收归国有的行为。征收可分为两种类型：一种是“直接征收”，指东道国政府公开地、一次性地对外资实行征用的行为；另一种是“间接征收”，指东道国采取干预外国投资者行使财产权的各种措施，迫使他们放弃自己投资的行为。近年来，“间接征收”行为出现的情形主要有二：一是东道国政府为克服经济危机而采取的宏观紧急措施所导致的对外资“间接征收”，二是东道国政府出于保护生态环境、公共健康、劳工权益等需要，依法采取的各种社会管理措施而可能导致的“间接征收”。

[22]诚实的，善意的，不论其是否有过失。

[23]《反海外腐败法》（Foreign Corrupt Practice Act，FCPA）是美国1977年制定的一部惩治本国公司、企业或公民向外国公职人员行贿的法律。

[24]同意令，和解协议，双方同意的判决。1. 指在衡平法诉讼中经双方当事人同意的判决，它不是严格意义上的判决，而是经法庭核准的和解协议，对双方有约束力且不能复审，除非判决因欺诈或双方错误而取得。该判决对法庭无约束力；2. 指经法庭核准，被告同意终止其非法行为，政府同意不再追究并撤诉，法庭据此所作的判决。

[25]有效，生效。

[26]劳合社（Lloyd’s of London）又译劳埃德保险社，是英国伦敦一个保险交易场，旧以经营海上保险著称。1871年向政府注册劳埃德公司（corporation of Lloyd’s），取得法人资格；实际上该公司只是个管理机构，本身不承担保险；保险业务由参加该社、取得会员资格的保险人承保。一般来说，多个金融机构、个人会员、或者企业会在劳合社会面协商，以达致某种分散风险的交易。不同于其他再保险的同类组织，劳合社本身只是按《劳合社法案1871》成立的法人组织。

[27]国外信用保险协会，缩写为FCIA。由美国50家私营保险公司所组成，是保证出口商不蒙受商业信用风险的一个美国机构，与进出口银行（Export-Import bank）的保证出口商不蒙受政治风险的职责相区别。

[28]友好通商航海条约，双边投资条约的一种类型，主要是确立缔约国之间的友好关系，双方对于对方国民前来从事商业活动给予应有的保障、赋予航海上的自由权等。这一类型的条约主要出现在第二次世界大战以前，当时的国际经济活动以国际贸易为主，国际投资不占主要地位，反映在双边条约中就是关于贸易的保护规定较多，而关于投资的保护规定则很少。

[29]“充分，及时，有效”原则。在征收补偿的标准上，发达国家坚持此原则，其理论根据是西方传统的“私有财产神圣不可侵犯”、“尊重既得权”以及“不当得利”等原则。“充分”是指赔偿金应相当于被征收财产的全部价值，并包括直至支付赔偿金时的利息；“及时”是指支付赔偿金应尽速实现，不得迟延；“有效”是指赔偿金应以国际硬通货至少应以可兑换货币支付。

[30]国民待遇原则，是指在民事权利方面一个国家给予在其国境内的外国公民和企业与其国内公民、企业同等待遇，而非政治方面的待遇。主要适用于货物，不适用于人的权利。在乌拉圭回合谈判中，这一原则已扩大到服务贸易等领域。

[31]最惠国待遇，最惠国待遇在国际贸易学中指缔约国一方现在和将来给予任何第三国在贸易、关税、航运、公民法律地位等优惠和豁免，也都给予缔约国对方国家。享有最惠国待遇的国家称为受惠国，依据多是一项双边或多边条约的规定。

[32]业绩要求。NAFTA第11章第1106条第一款规定，任何缔约方不得对与在该方境内缔约一方或非缔约方投资者之投资的开业、收购、扩张、管理、计划的实施或经营相关之方面，强加或执行一些要求，或强迫作出任何承诺和保证。

[33]《TRIMs协议》是《与贸易有关的投资措施协议》。是1986年10月开始的乌拉圭回合谈判的最后成果之一，成为世界贸易组织法律体系的有机组成部分。宗旨：避免投资措施给贸易带来扭曲和限制，从而促进世界贸易扩展和逐步自由化，并促进跨国投资，已达到在确保自由竞争同时，增进所有贸易伙伴，尤其是发展中国家成员方的经济增长目的。