2002年-世界发展银行全球_Infrastructure_Regulation___A_Review_of_International_Instruments_and_Compliance_Mechanisms_75页_425kb

Summary of Infrastructure Regulation: A Review of International Instruments and Compliance Mechanisms

Introduction

This report examines the role of international instruments and compliance mechanisms in shaping regulatory practices for infrastructure projects. It highlights that regulatory regimes, even those governing infrastructure, are influenced by international standards, norms, and legal obligations. These standards aim to support effective infrastructure development by ensuring transparency, non-discrimination, stability, and principled regulatory processes. The paper reviews both binding and non-binding instruments, as well as the mechanisms used to enforce them, and concludes with recommendations for promoting good regulatory practices.

I. Classifying Instruments and Compliance Mechanisms

International Instruments vs. Compliance Mechanisms

• International Instruments: These are agreements that establish regulatory standards or commitments.
• Compliance Mechanisms: These are tools used to ensure adherence to the standards set by international instruments.

These two categories are not inherently linked, and the distinction is useful for analyzing the options available for promoting international regulatory standards.

Binding vs. Non-binding International Instruments

• Binding Instruments: Include treaties like the WTO Agreements and BITs, which create legal obligations.
• Non-binding Instruments: Such as the APEC Investment Principles and OECD Guidelines, which promote regulatory aspirations without legal enforceability.

Some instruments, like the Energy Charter Treaty, combine both binding and non-binding elements.

Multilateral vs. Bilateral Instruments

• Multilateral Instruments: Involve more than two parties, often with broader scope and more generalized commitments.
• Bilateral Instruments: Involve two parties, typically allowing for more specific and tailored commitments.

Multilateral agreements may face challenges in achieving consensus, leading to weaker commitments, while bilateral agreements can be more precise and enforceable.

Trade vs. Investment Instruments

• Trade Instruments: Focus on facilitating the flow of goods and services, including commitments on market access and national treatment.
• Investment Instruments: Focus on protecting foreign investments, including legal standards for treatment and enforcement.

Modern agreements increasingly overlap, with trade agreements incorporating investment protections and vice versa.

II. Binding International Instruments Incorporating Regulatory Commitments

Selected Instruments

• General Agreement on Trade in Services (GATS):

  • 144 WTO Members commit to market access and national treatment.
  • Includes transparency and domestic regulation commitments.
  • Complies with U.N. service sectors and offers detailed regulatory guidelines.

• WTO Telecommunications Commitments:

  • Specific commitments on telecommunications services, a key infrastructure sector.
  • Includes provisions for preventing anticompetitive practices, independent regulation, and transparent licensing.

• Energy Charter Treaty (ECT):

  • An investment protection treaty with broad scope in the energy sector.
  • Includes both trade and investment provisions, modeled on WTO and BIT standards.
  • Has 52 signatories, including many European and Asian countries.

• Bilateral Investment Treaties (BITs):

  • Provide minimum legal standards for foreign investors, such as fair and equitable treatment.
  • Include provisions on national treatment and non-discrimination.
  • Over 1800 BITs exist globally, with the U.S. and EU being the most active.

• U.S.-Vietnam Agreement on Trade Relations:

  • A comprehensive bilateral agreement covering trade and investment.
  • Includes commitments on transparency, notice, and appeal mechanisms.
  • Helps Vietnam integrate into global markets by establishing regulatory frameworks.

Assessment of Binding Instruments

• History and Background:

  • Multilateral agreements are often difficult to negotiate due to the need for consensus.
  • The ECT was negotiated quickly and was significant given the weak legal systems of many participants.

• Impact:

  • These instruments can promote transparency and stability in infrastructure regulation.
  • They influence domestic legal systems and encourage adherence to international norms.

• Strength and Specificity:

  • Some instruments, like GATS and ECT, have detailed and enforceable commitments.
  • Others, such as the ECT, have aspirational language that may limit enforceability.

• Evolutionary Capacity:

  • Instruments evolve over time, often through updates or new agreements.
  • The GATS and ECT show how regulatory standards can be refined and expanded.

III. Non-binding Instruments Incorporating Regulatory Aspirations

These instruments promote good regulatory practices but do not carry legal enforceability. They include:

• APEC Investment Principles
• World Bank Guidelines on FDI
• OECD Guidelines for Multinational Enterprises
• UNCITRAL Model Law
• Form Contract Terms

Assessment of Non-binding Instruments

• History and Background:

  • Often developed through consensus and soft law approaches.
  • Reflect evolving global standards and best practices.

• Impact:

  • Influence domestic policies and practices through voluntary compliance.
  • Provide a framework for transparency and accountability.

• Strength and Specificity:

  • May lack the enforceability of binding instruments.
  • Offer guidance rather than legal obligation.

• Evolutionary Capacity:

  • Can be adapted and updated more easily than binding instruments.
  • Often serve as a basis for more formal agreements.

IV. Compliance Mechanisms for Enforcing Binding Obligations

Selected Mechanisms

• WTO Dispute Settlement
• International Court of Justice
• BIT and ECT Investor-State Dispute Settlement (ISDS)
• Contractual Arbitration

These mechanisms allow for legal enforcement of commitments, including through third-party dispute resolution.

V. Compliance Mechanisms for Non-binding Obligations

• Public Scrutiny
• Reporting Requirements
• Conditionality
• Third-Party Verification
• Use in Binding Dispute Settlement Proceedings

These mechanisms encourage compliance with non-binding standards through transparency and accountability, though they lack legal enforceability.

VI. Promoting Good Regulatory Practices for Infrastructure Investments

The report concludes that both binding and non-binding instruments, along with their compliance mechanisms, are essential for promoting good regulatory practices in infrastructure investments. It emphasizes the need for transparency, non-discrimination, and stability in regulatory frameworks, and encourages the simultaneous consideration of standard-setting and enforcement mechanisms.

Key Themes and Principles

• Transparency: Ensuring that regulatory decisions are open and accessible.
• Non-discrimination: Treating foreign and domestic investors equally.
• Stability: Creating predictable regulatory environments.
• Principled Regulatory Process: Adhering to fair and equitable treatment standards.

These principles are critical for attracting and sustaining infrastructure investment in a globalized economy.