   
  
INF/IFD/R/13  
 
2 July 2020 
(20-4593) Page: 1/5 
  Original: English  
 
 
 
WTO STRUCTURED DISCU SSIONS ON  
INVESTMENT FACILITAT ION FOR DEVELOPMENT  
OPEN -ENDED INFORMAL VIRTUAL MEETING HELD  ON 24 JUNE 2020   
Summary of discussions by the Coordinator1 
An open -ended informal meeting of the Structured Discussions on Investment Facilitation for 
Development was held on 24 June 2020, coordinated by Mr. Mathias Francke (Ambassador -
designate, Chile).2  This was the second informal meeting foreseen in the " Schedule of Open -Ended 
Informal Virtual Meetings, June -July 2020".3 As indicated in the annotated agenda circulated by the 
Coordinator to all WTO Members4, the main purpose of the meeting was to allow Members to 
introduce new text proposals submitted since the  last meeting, as well as  to continue the thematic 
discussion  on the basis of the informal consolidated text circulated by the Coordinator to all WTO 
Members.5 As also indicated in the annotated agenda, t he meeting was not meant to conduct any 
negotiation s, nor to lead to any decision -taking or drafting suggestions by the Coordinator.  In 
keeping with the Joint Initiative ’s open, transparent and inclusive nature, all WTO Members were 
invited to attend .  
1  INTRODUCTION OF NEW TEXT PROPOSALS AND C ONTRIBUTIONS B Y MEMBERS  
1.1.  A new text proposal was submitted prior to the meeting.6 The Member concerned introduced 
the proposal in general terms.  The purpose of the proposal was to ensure that the future framework 
on investment facilitation for development did not affect,  or stood to be affected by, international 
Investment Agreements (“IIAs”), comprising Bilateral Investment Treaties (BITs) and Investment 
Chapters of Free Trade Agreements, concluded by Members thus far. In this Member ’s view, given 
the extremely broad nature of investment, as the term was interpreted by international courts and 
tribunals, clear language on insulation and separation would help avoid a situation where a 
prospective framework on investment facilitation and  IIAs interact ed with each other inadvertently. 
To that end and pending the review of further provisions as the discussions moved forward, the 
proposal suggested language for a mutual exclusion clause under the "Scope" element. In addition, 
for greater cer tainty, the scope of the future framework on investment facilitation for development 
should be clarified to make it clear that it shall not apply to investment protection, the treatment of 
investors or investments, or any dispute settlement proceeding with in the meaning of IIAs 
concluded , or that might be concluded , by Members.   
1.2.  Several participating Members provided initial comments on the proposal. These Members 
shared the view that the scope of the framework should be further discussed and that the 
relationship with IIAs should be clearly delineated. Some of them announced their intention to table 
written proposals on this and other issues. One of them fully supported the language put forward in 
this proposal. Another Member shared the proponent’s concern  that the MFN clause in IIAs should 
not lead to the “importation” of obligations from other agreements into those IIAs, but considered 
that such eventuality had to be resolved primarily in those bilateral treaties. In that regard, this 
Member explained tha t it had included a “non -importation” clause in recent IIAs. The Member 
expressed doubts, however, with regard to the proposal to exclude the “treatment" of investors or 
 
1 This summary, prepared and circulated under the Coordinator ’s responsibility, is being shared with a 
view to providing delegations with a record of the discussions and assisting them in reporting back to their 
capitals. It provides a non -exhaustive, illustrativ e review of the issues addressed by Members at the me eting. 
2 The meeting was conducted o ver the Interprefy virtual platform.  
3 Document s INF/IFD/W/18 /Rev.1, dated 15 June 2020.  
4 Documents INF/IFD/W/21, dated 19 June 2020.  
5 Document INF/IFD/RD/50 , dated 22 April 2020.  
6 Document INF/IFD/RD/52, dated 23 June 2020.  INF/IFD/R/13  
 
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  investments from the scope of the framework  altogether, as “ treatment” was not necessa rily an 
investment protection issue.  In this Member's view, Section III of the informal consolidated text 
(Streamlining and Speeding up of Administrative Procedures and Requirements) contained principles 
of good governance that also related to the treatmen t of foreign investors. It was not clear therefore 
how the proposal to carve out “treatment” from the scope would affect the provisions in section III 
of the framework. He suggested that, instead of excluding “treatment”, a better option might be to 
clarify that the framework would not confer rights that investors could claim under investor -state 
dispute settlement mechanisms in other treaties.  
1.3.  In replying to the comments, the proponent clarified that the proposal to remove “treatment” 
from the scope was no t intended to diminish or undermine the value added of administrative good 
governance provisions contained in the investment facilitation framework, but to avoid that those 
'provisions' could be used in IIAs disputes. The Member added that it was willing t o consider 
alternative language that could be both supportive of administrative good governance and mindful 
of the possible misuse by investors. She further considered that while it would be ideal to have non -
importation clauses in all IIAs, the fact that many older -generation IIAs had non -derogation clauses 
allowing investors to apply more favourable rules in case of conflict with IIAs made it important that 
an insulating provision be included in the investment facilitation framework.  
2  THEMATIC DISCUSSION  
2.1.  The thematic discussions resumed where they had broken off at the last meeting.  
2.1  Section II: Transparency of investment measures  
2.1.1   Element 4: Notification to WTO  
2.2.  One participating Member considered that the notification obligations should apply not only to 
changes to existing laws but also to the introduction of new laws – something that was not 
contemplated in the current version of the informal consolidated text. In addition, this Member 
advocated that the existing investment frameworks also be notified to  the WTO. The Member also 
suggested that the term “major change” be clarified, and that the conjunction “or” in the first line 
of paragraph 4.1 be replaced by “and” in line with GATS Article III:3. Some delegations supported 
these last two suggestions. Oth er participating Members suggested that the expression “promptly” 
be also clarified. One participating Member considered that notification obligations should not be 
burdensome and suggested that only official places of publication be notified.  
2.1.2   Element 5: E nquiry points  
2.3.  Most participating Members saw value in this provision. One participating Member advocated 
the use of the enquiry points already foreseen in the GATS.  In general, participating Members saw 
value in a mechanism that would allow investors to m ake enquiries and have them answered. They 
noted however a potential overlap between the functions of enquiry points, contact / focal points 
(section IV) and, to a lesser extent, the Committee on investment facilitation (section VII). They 
considered that further clarity should be provided on the different types of relationships (i.e. 
Member -investor, Member -Member, and Member -WTO) and the mechanisms to deal with them. . A 
participating Member  saw value in having a mechanism that would help investors obtain  information 
from governments and, noting the overlap between enquiry points and contact / focal points, 
suggested merging both. Another participating Member considered that enquiry, contact and focal 
points had different responsibilities that could be ful filled by different authorities or by the same 
authority, depending on the internal organization of the Member concerned.  
2.4.  In addition, while one participating Member noted the absence of a reference to “enquiry point” 
in paragraph 5.1, another one conside red that the reference to “appropriate mechanisms” in that 
paragraph provided Members with flexibility to organize the functions foreseen in this element. 
Another participating Member suggested that the expression “reasonable" enquiry be further 
clarified.   INF/IFD/R/13  
 
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  2.1.3   Element 6: Specific exceptions applicable to transparency requirements  
2.5.  One participating Member introduced its text proposal on this element, which consisted of 
reproducing the text of GATS Article III bis "Disclosure of Confidential Information" .7 It wa s 
suggested that, in the corresponding text in the informal consolidated text, the term "could 
prejudice" should be replaced by "would prejudice" to align it with GATS Article III bis.   
2.2  Section III: Streamlining and speeding up administrative procedures a nd 
requirements  
2.2.1   Element 7: Consistent, reasonable, objective and impartial administration of 
measures  
2.6.  One participating Member introduced its text proposal on paragraph 7.1., which sought to 
adopt an approach similar to GATS Article VI:1.8 In replying to o ther Members’ questions, the 
proponent confirmed its agreement with paragraph 7.2 of the informal consolidated text (which was 
not addressed in its proposal) and considered that the framework on investment facilitation would 
be a complement to the GATS, al lowing Members to go beyond the GATS as far as investment was 
concerned.  
2.7.  A participating Member suggested to align the title of this element with the text in 
paragraph  7.1 by deleting the word “consistent” from the title. Another participating Member pose d 
a question on the relationship between the GATS and the prospective investment facilitation 
framework in this regard: whereas GATS Article VI:1 applied only in sectors where Members had 
undertaken specific commitments, the framework seemed to seek to app ly this obligation 
horizontally. Finally, some participating Members considered that paragraph 7 was linked to the 
scope of the framework and would thus need to be revisited once the scope had been further 
clarified.  
2.2.2   Element 8: Reduction and simplification  of administrative procedures and 
documentation requirements  
2.8.  Two participating Members introduced their text proposals on this element.9 The first proponent 
explained that its proposal aimed at making this provision clearer, by simply imposing the obligati on 
to limit the complexity of procedures while still requiring investors to fulfil those requirements.  
2.9.  The second proponent explained that the language proposed as an alternative to paragraph  8.4 
of the consolidated text had been drawn from Article 10, pa ragraph 1.1, of the TFA. Commenting on 
this proposal, a Member expressed some scepticism about the introduction of "other factors" (e.g. 
changed circumstances, relevant new information, business practices, availability of techniques and 
technology, interna tional best practices, and inputs from interested parties ) that competent 
authorities might take into account in the application of procedures and requirements since they 
might increase uncertainty for investors.  
2.10.   Another Member considered that there were significant overlaps among elements 7, 8 and 9. 
He suggested merging paragraphs 7.1 and 8.2; as well as paragraphs 8.1 and the first sentence of 
paragraph 9.2, which addressed the same matter. In addition, this Member considered that the 
language should no t conflict with existing obligations and negotiations in the WTO, notably the GATS 
and the services domestic regulation discussions. He further indicated that his country could support 
using the services domestic regulation -related language as a starting p oint for discussions on this 
and related elements.  
2.11.   Another Member said that there were instances where more detailed scrutiny by competent 
authorities might be necessary, for example in the case of large -scale investments. In that regard, 
he suggested usin g flexibility language such as “to the extent practicable”. In the same vein, another 
Member said that some of the standards mentioned in this element, such as “simplicity”, might not 
be applicable in certain sensitive sectors (such as the health or financ ial sector).  
 
7 Document INF/IFD/RD/46, dated 27 February 2020.  
8 Document INF/IFD/RD/46, dated 27 February 2020.  
9 Documents INF/IFD/RD/46 and 47, dated 27 February and 25 March 2020, respectively.  INF/IFD/R/13  
 
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  2.12.   Finally, another Member considered that the last part of paragraph 8.4 of the consolidated 
text (“each Member shall ensure that such procedures and documentation requirements are applied 
in a manner that aims at reducing the time and cost of compliance ”) imposed a rule that might be 
difficult to implement at all times . 
2.2.3   Element 9: Clear criteria for administrative procedures  
2.13.   Two participating Members introduced their text proposals on this element.10 The first 
proponent explained that the main purpose of its proposal was to clarify that this element must not 
be understood as creating additional market access rights and obligations for Members. This 
clarification had been introduced in a footnote to th e text proposed, which was otherwise similar to 
the language used in the joint statement initiative on services d omestic regulation. The second 
proponent explained that it was against including  the expression “may establish criteria” appearing 
in paragraph  9.1 of the informal consolidated text. Rather, the Member preferred to require Members 
to ensure  that any criteria established by its competent authorities be clear, transparent, objective 
and published beforehand.  
2.14.   Commenting on the first proposal, a Memb er wondered whether terms used in the services 
domestic regulation text, such as “criteria”, would fit within an investment facilitation framework. In 
addition, paragraph 9.3 of the informal consolidated text made a circular use of the term “criteria” 
when  stating that “ each Member shall ensure that any such criteria that it adopts or maintains are 
based on objective and transparent criteria …”. Addressing, this comment, the first proponent 
explained that basic provisions like this one could also be applied to investment. The footnote to the 
proposal already provided some indications as to the nature of those “criteria”. It was useful for 
investors to be aware of those criteria in advance.  
2.15.   Commenting on this element, a Member considered that the relationship between the 
“criteria” referred to in these paragraphs and the commitments on market access and national 
treatment in the GATS should be further explored. Replying to this specific comment, another 
Member saw value in having this element, and observed that  these provisions focused on procedural 
issues and did not address either market access or national treatment.  
2.2.4   Element 10: Authorization procedures  
2.16.   One participating Member introduced its text proposal on this element.11 The Member 
explained that the propo sal drew from the relevant text of the services domestic regulation text, in 
the understanding that such types of provisions could be applied across -the-board, to investment in 
all sectors (services and non -services). He proposed to use this language as a starting point for 
negotiations. A number of participating Members supported this proposal. A Member expressed its 
preference to use the wider term "authorisation for an investment " compared to the language 
"authorization to invest in its territory " used i n the consolidated text. Replying to another Member’s 
question, the proponent explained that the proposal did not imply that each Member should have 
only a single authority to deal with authorizations. Rather, the proposal provided how authorizations 
were to be dealt by any competent authority in the Member concerned.  
2.17.   Commenting on this element, a Member said that paragraph 10.2 of the consolidated text 
overlapped with paragraph 14.1. Since the latter addressed the use of ICT, he suggested deleting 
paragrap h 10.2 and retaining paragraph 14 instead, a suggestion supported by another delegation. 
The same Member considered that the term “authorization” needed to be defined. In particular, he 
wondered if the expression was meant to cover the establishment phase only or also the post -
establishment phase. He supported a broad definition of “authorization”. Some Members supported 
the suggestion to define the term “authorization”.   
2.2.5   Element 11: Treatment of incomplete and rejection of applications  
2.18.   One participating M ember introduced its text proposal on this element.12 The Member 
explained that the proposal drew from the relevant services domestic regulation text, again in the 
understanding that such types of provisions could be applied across -the-board, to investment in all 
 
10 Docume nts INF/IFD/RD/46 and 47, dated 27 February and 25 March 2020, respectively.  
11 Document INF/IFD/RD/46, dated 27 February 2020.  
12 Document INF/IFD/RD/46, dated 27 February 2020.  INF/IFD/R/13  
 
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  sectors. Commenting on this proposal, another Member suggested using the expression “relevant 
competent authorities” instead of simply “competent authorities”, as the former implied a limited 
number of competent authorities that investors might need  to approach. In response, the proponent 
clarified that the competent authorities envisaged by this proposal were those specifically dealing 
with investments. Another Member supported aligning these provisions with the services domestic 
regulation text to avoid unnecessary divergences.  
3  OTHER BUSINESS AND N EXT MEETING  
3.1.  The Coordinator announced that he would circulate a revised version of the informal non -
consolidated text including the new proposal submitted prior to the meeting. He also announced that 
he would circulate a non -attributable informal summary of the meeting to all WTO Members . At the 
following open -ended in formal virtual meeting, to be held on 10 July, the thematic  discussion s would 
resume starting from Section  III, Element  12 “Fees and charges” of the informal consolidated text. 
He encouraged Members wishing to submit text proposals or contributions to do s o in advance of 
the next meeting.  He also incited Members to exchange their questions and comments on the 
proposals and other submissions in writing. Such written questions, comments and answers could 
be circulated by the Coordinator to all Members.  
 
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