Investment
Facilitation for
Development
Agreement
A reader’s guide
IISD REPORT

Rashmi Jose© 2024 International Institute for Sustainable Development | IISD.org

February 2024

Investment Facilitation for Development Agreement: A reader’s guide© 2024 International Institute for Sustainable Development
Published by the International Institute for Sustainable Development
This publication is licensed under a Creative Commons AttributionNonCommercial-ShareAlike 4.0 International License.

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Investment Facilitation for Development Agreement:
A reader’s guide
February 2024
Written by Rashmi Jose
Photo: Beata Haliw/iStock
The author would like to thank Alice Tipping, Josef Ostřanský, and the
WTO negotiators who kindly agreed to review an earlier draft.

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Investment Facilitation for Development Agreement: A reader’s guideAcknowledgements
The UK Foreign, Commonwealth and Development Office (FCDO)
has established the Trade and Investment Advocacy Fund (TAF2+) toprovide demand-driven support to trade policymakers and negotiators
in eligible countries, communities and organisations. TAF2+ assistanceprovides:•Impartial information, analysis and advice on the technicaland legal aspects of trade negotiations, and on formulating
negotiating positions;•

Training and capacity building for relevant officials andorganisations;•

Logistical support to participate in negotiations and key policy
meetings.

TAF2+ is managed on behalf of FCDO by a dedicated Fund Manger,
Cowater International.
This material has been funded by the UK Government Centres ofExpertise as part of UK International Development; however, the views
expressed do not necessarily reflect the UK government’s official policies.
The Umbrella Grant is a project of the Trade and Investment Advocacy
Fund (TAF2+) and is implemented by the International Institute for
Sustainable Development.

Trade

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Investment Facilitation for Development Agreement: A reader’s guide

Table of Contents
Introduction............................................................................................................................................................................. 1
Section I. Scope and General Principles....................................................................................................................2
Objectives and Scope of the Agreement.........................................................................................................................2
Relation to Other International Treaties............................................................................................................................3
Applying the Principle of Non-Discrimination............................................................................................................. 4
Section II. Transparency of Investment Measures ..............................................................................................6
Publishing Relevant Government Information Related to FDI..........................................................................6
Improving the Development of Regulatory Measures ............................................................................................7
Fees and Notification Requirements.....................................................................................................................................7
Section III. Streamlining and Speeding Up Administrative Procedures ................................................10
Principles for Implementing FDI-Related Administrative Procedures ................................................. 10
Application Requirements......................................................................................................................................................... 10
Improving Trust in, and Integrity of, Administrative Decisions..................................................................... 12
Section IV. Focal Points, Domestic Regulatory Coherence, and Cross-Border Cooperation ..... 14
Improved Cooperation Between Investors and Governments.......................................................................14
Improved Cooperation Among Parties.............................................................................................................................15
Domestic Regulatory Coherence .........................................................................................................................................15
Section V. Special and Differential Treatment for Developing and Least Developed
Country Parties................................................................................................................................................................... 17
Longer Implementation Periods and Capacity-Building Support for Implementation..............17
Delays, Changes in Category Designation, and Grace Periods.................................................................. 20
Requirements on Donors ............................................................................................................................................................ 21
Section VI. Sustainable Investment ........................................................................................................................ 25
Section VII. Institutional Arrangements and Final Provisions.....................................................................27
A Dedicated Committee on Investment Facilitation.............................................................................................27
An Issue to Pay Attention to From a Development Perspective..................................................................27
Horizontal Exceptions....................................................................................................................................................................28
Dispute Settlement and Final Provisions.......................................................................................................................28
What’s Next in the IFDA Negotiating Process.................................................................................................... 31
A Deep Dive Into the Legal Architecture Challenge............................................................................................. 31
Ensuring the WTO System Remains Relevant...........................................................................................................32
The Implementation Burden and the Risk of Disputes.......................................................................................33
Accessing More Technical Assistance and Capacity-Building Support..............................................33
References............................................................................................................................................................................ 35

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Investment Facilitation for Development Agreement: A reader’s guideIntroduction
World Trade Organization (WTO) members first formally expressed interest in new rules oninvestment facilitation at the 11th Ministerial Conference in Buenos Aires in 2017. At that
conference, a group of 70 members from developed, developing, and least developed countries(LDCs) agreed to launch a Joint Statement Initiative (JSI), through which they could engage
in structured discussions at the WTO with the aim of creating multilateral rules on investment
facilitation. After 3 years of exploratory discussions, formal negotiations began in September
2020.1 On July 6, 2023, following nearly 3 years of formal talks, the participants announced
a major milestone—the substantial conclusion of the core legal text of the Investment
Facilitation for Development Agreement (IFDA).
While participation in the negotiating meetings is open to all WTO members, a subset of
WTO members has stated that they are formally participating in the JSI. Since its launch,participation in the JSI has grown substantially, with close to 120 members2 participating
and one member engaging as an observer as of December 2023. The participation is diverse.
Of the 36 members designated as LDCs at the WTO, 21 are formal participants in the
IFDA. Of the 90 members that had designated themselves as a developing country under
the Trade Facilitation Agreement (TFA), 59 have formally joined the IFDA JSI, and one isengaging as an observer. Of the 38 countries that had designated themselves as developed
country members under the TFA, 37 are participating, with the only exception being theUnited States.
If the IFDA were to be eventually integrated into the WTO’s treaty architecture, it would
become the second investment-related agreement in that framework, following the 1995
Agreement on Trade-Related Investment Measures. The WTO has not been the usual
forum for negotiating investment facilitation provisions. Rather, these types of provisions
are usually integrated into bilateral investment treaties or in the form of trade-related
investment provisions in free trade agreements. While investment facilitation provisions wereusually absent in international investment agreements (IIAs), these provisions have become
more common, diverse, and deeper in terms of commitments since 2015 (United Nations
Conference on Trade and Development [UNCTAD], 2023).
This reader’s guide will focus on the WTO IFDA, aiming to provide an overview of its corelegal text.3 It describes the rules and legal provisions that have been agreed and explains
succinctly what the disciplines require. This guide is based on previous updates and analysis
produced by IISD (Balino et al., 2020; Bernasconi-Osterwalder et al., 2020; Jose, 2023; Jose &Oeschger, 2022).
Baliño et al. (2020) provide a detailed overview of the IFDA’s JSI process, describing how it was set up, and how
the earlier phases of the discussions evolved. It is well worth reviewing to understand the genesis of the negotiations
and to understand the role of the IFDA within the broader investment governance landscape.
1

2

Status as of October, 2023.

The reader’s guide will review the IFDA finalized legal text of November 27, 2023 (INF/IFD/W/52) (WTO,
2023a). This text is not yet public, so this guide does not cite or quote directly from it. Rather, this guide aims to
explain in general terms the obligations that have been agreed so that both WTO members (participants in thenegotiations and others) and stakeholders have a clear sense of what the treaty entails.
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Investment Facilitation for Development Agreement: A reader’s guide

Section I. Scope and General Principles
This section introduces the objectives of the agreement and clarifies its scope by outlining thetypes of domestic policies to which the obligations of the agreement would apply. The section
also explains how the agreement will relate to other international treaties and provides insighton how the most-favoured-nation (MFN) principle, a key principle of the WTO treaty systemand of the agreement, should be applied.

Objectives and Scope of the Agreement
The objectives of the agreement are to facilitate the flow of foreign direct investment (FDI),
particularly to developing country Parties and LDC Parties, to foster sustainable development.
To do this, the agreement encourages governments to adopt and maintain policies andpractices that support investment facilitation, including improving the transparency ofinvestment measures, streamlining administrative procedures, promoting international
cooperation, and adopting other types of investment facilitation measures (Article 1).
Next, clarity is provided on the scope of the agreement (Article 2). The Parties4 agree thatthe rules of the agreement would apply to domestic measures adopted or maintained bygovernments that relate to the investment activities of foreign investors directly investing in the
Party’s territory or jurisdiction. The IFDA Parties agreed to focus on FDI-related measuresrather than also measures relating to purely financial investments, like portfolio investments,
due to the view held by some developing country Parties, who argued direct investments
are better at promoting the long-term productive capabilities of the domestic industry thanportfolio investments, which are viewed as more short-term and speculative by nature.
The agreement would apply to any FDI-related government measure, such as a law,regulation, rule, procedure, decision, administrative action, or any other form of a measure.
Such measures could target a broad range of foreign investment activities, including theestablishment, acquisition, expansion, operation, management, maintenance, and sale, orother disposal of an investment. It would apply to measures adopted or implemented byauthorities at different levels of government, including central, regional, or local levels or by anon-governmental body exercising powers delegated by such authorities.
Further to defining what falls under the umbrella of the agreement, the article also clarifies
what issues it does not cover. It emphasizes that nothing in the agreement creates or modifies
existing commitments relating to market access or the rules of investment protection or
investor–state dispute settlement (ISDS). This clarification on market access emphasizes
that the agreement focuses only on facilitation measures and that liberalization provisions,
i.e., those requiring a government to allow foreign participation or investment in a particularsector, are outside the agreement’s ambit. These exemptions are also part of building a

The Reader’s Guide will use the term “Parties” when referring to WTO members participating in the IFDA.
This is how the participants refer to themselves in the latest version of the IFDA text (INF/IFD/W/52-released
November 27, 2023), given their decision to prioritize advocating for the integration of the IFDA as a plurilateralagreement in the WTO framework.
4

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Investment Facilitation for Development Agreement: A reader’s guide

firewall to prevent interpretative overlap between this agreement and IIAs (more on that
below). Parties also agree that the agreement will not apply to government procurement
or to subsidies or grants that are not granted to foreign investors due to domestic laws andregulations.
Key terms are defined, including “investment activities,” “measure,” “authorization,” “investorof another Party,” “juridical person,” and “competent authority” to provide additional clarity
on what the overall framework would apply to (Article 3). The definitions relating to foreign
investors clarify that the term “investors” includes natural persons or a legal entity with
substantive business operations.
The scope and the definitions make it clear that the agreement’s obligations apply to awide breadth of domestic measures adopted by government bodies at different levels acrossdifferent agencies and ministries. Any government measure that directly relates to the FDI
activity, spanning across its life cycle, of a foreign investor would need to be consistent withthe rules set out in the agreement.

Relation to Other International Treaties
Some experts, during the earlier phases of the negotiating process, raised the concern that
because this agreement covers investment issues, there is a potential for foreign investors who
have access to dispute settlement proceedings (the ISDS mechanism) to leverage the IFDA
as a justification for making claims under investment treaties (Bernasconi-Osterwalder etal., 2020). The weak and vague language of specific clauses, such as the umbrella, fair, andequitable treatment (FET), or MFN clauses,5 in older-generation international investment
treaties,6 opens up the possibility that investors could argue that a failure to implement the
obligations of the IFDA meant that the host state had failed to comply with their investment
protection obligations undertaken in the older-generation investment treaty, thereby justifying
a claim.
Such concerns resulted in the incorporation of an article that clarifies how this agreement
should be interpreted in relation to the other IIAs (Article 4). The article aims to function asa “firewall provision” in the IFDA by emphasizing that the interpretation of the IFDA andIIAs must be kept separate and distinct. It stresses that a failure to implement obligations
under this agreement cannot be used as evidence to prove that a Party has failed to fulfill theircommitments under other IIAs.
While the article is valuable in addressing the interpretative overlap risk, it does not absolvethat risk entirely. Experts have contended that for the risk to no longer exist, changes to theold-generation investment treaties themselves would be necessary (Bernasconi-Osterwalder etal., 2020). It is, therefore, of particular importance that Parties’ investment treaty negotiators
be aware of the IFDA and assess whether the potential of an interpretative overlap risk
exists, considering their existing investment treaty portfolio. It should also be noted that a
For an understanding of these clauses and how they interact to the IFDA context, please see BernasconiOsterwalder & Bonnitcha, 2020.
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6

The investment treaty regime landscape is still largely dominated by old-generation IIAs.

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Investment Facilitation for Development Agreement: A reader’s guide

WTO agreement cannot necessarily impose interpretive obligations on panels or tribunals
constituted under IIAs and, as such, the IFDA has no real control over how such a panel ortribunal may interpret any overlap between these agreements and the IFDA.

Applying the Principle of Non-Discrimination
The final article in the section clarifies the application of the MFN treatment obligation, a
non-discrimination principle (Article 5). It clarifies that when implementing the substantive
obligations of this agreement an IFDA Party will do so by providing no less favourable
treatment, in like circumstances, to investors of any other WTO members (including nonParties) and their investments. Essentially, the agreement’s benefits must be applied equallyto all WTO members. Although the benefits are accessible, the agreement clarifies that nonParties do not have access to any rights under the agreement, notably the right to bring adispute proceeding should there be a failure to extend benefits to their investors. This balanceis probably realistic; proponents have argued that implementation of investment facilitation
provisions, which are mostly procedural improvements, can only be applied generally, making
it difficult to exclude non-participants from benefits. They note that since benefits cannot
be carved out, non-Parties stand to gain without being bound to the obligations, and this, inturn, is a good reason for them to provide their support to integrate the treaty as a plurilateralagreement within the WTO treaty framework by consensus. This argument is part of the legalarchitecture debate, which will be explained in a subsequent section.
This article also tackles the interaction between the benefits provided to investors under thisagreement and the benefits provided under other investment agreements. It clarifies that theMFN requirement cannot be construed as an obligation to extend additional advantagesa Party may grant to investors of some Parties through separate IIAs, investment-related
chapters, or other relevant provisions in regional trade agreements. In other words, a Party
to this agreement must treat investors of IFDA Parties equally when implementing theobligations of this agreement, but they can continue to provide additional benefits under otherinvestment and trade agreements to Parties to those other agreements.
Interestingly, the agreement does not include an article on national treatment, a nondiscrimination principle often required in most WTO agreements. Parties are, therefore,
not bound by the obligation to extend benefits on matters relating to this agreement thatare provided to its domestic investors and having to extend those benefits equally to foreign
investors. In other words, Parties are allowed to apply investment facilitation efforts on morefavourable terms to their domestic investors, should they wish to do so.

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Investment Facilitation for Development Agreement: A reader’s guide

Summary of Section I (Scope and General Principles)
Article 1 Objectives•

aims to improve the transparency of measures, streamline administrative
procedures, adopt other investment facilitation measures, and promoteinternational cooperation to facilitate FDI flow among Parties, especiallydeveloping and LDC Parties, for sustainable development.

Article 2 Scope•

applies to all domestic measures that relate to the FDI activities of foreign
investors. The domestic measures can be those undertaken by governments atthe central, regional, and local levels, as well as by NGOs with delegated legal
authority.

•

does not modify commitments on market access and rules on investment
protection or ISDS.

•

does not apply to government procurement and domestic subsidies and grants
not granted to foreign investors by law and regulation.

Article 3 Definitions•

defines investment activities,” "measure," "authorization," “investor of anotherParty/Party,” “juridical person,” and "competent authority."

Article 4 Relation to IIAs•

excludes the use of IIAs to interpret or apply IFDA•

excludes the use of IFDA to interpret provisions in IIAs or as a basis for a claim
under ISDS

Article 5 MFN treatment•

equal treatment to investors of all WTO members on matters relating to theagreement•

MFN principle not interpreted as a requirement to extend benefits negotiatedthrough other IIAs, measures, or provisions in other relevant treaties•

provisions agreed to in other international agreements cannot be used to argue
breach of “treatment” under this agreement•agreement does not create obligations or rights for non-Parties

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Investment Facilitation for Development Agreement: A reader’s guide

Section II. Transparency of Investment
Measures
Section II is the first of the substantive sections of the agreement. This section includes
publication obligations aimed at improving the transparency of FDI regulatory measuresand increasing access to other types of information that could be of particular importanceto investors. The objective is to lower the information-gathering costs that foreign investors
often face when familiarizing themselves with a foreign market and expanding access tosuch information; this, in turn, can help foreign investors make decisions relating to FDI
activities. IFDA participants believe such improvements in transparency could help provide
a predictable and stable investment environment, which can play an important role infacilitating FDI, especially to developing countries and LDCs (WTO, 2019a).

Publishing Relevant Government Information Related to FDI
Parties agree to publish or make publicly available information on relevant measuresof general application that fall within the scope of the agreement (Article 6.1).7 This meansthat they must publish information on all government measures that have been adopted or
maintained that would relate to the FDI activities of foreign investors entering or operating in
its territory. The term “general application” is important, as it clarifies that not all government
measures would fall under such an obligation, but only those that apply to a range ofsituations, cases, or unidentified operators (WTO, 2023b). Measures that apply to specificsituations or operators do not need to be published under such an obligation.
Beyond publishing enacted measures, Parties are also expected to publish information onlaws and regulations that are still being developed on a best-endeavour basis (Article10). When providing information on proposals for new laws and regulations, they should also
share documents with sufficient detail about those measures to allow investors, interested
persons, and other Parties to determine whether and how their interests will be significantly
affected. Similar expectations apply to procedures and administrative rulings that are in theprocess of being developed, and the obligation is similarly on a best-endeavours basis rather
than as a requirement.
Parties also agree to publish or make publicly available the procedures and requirements
for authorization of the FDI activity (Article 7), as well as information on international
agreements that affect investment to which they are a party (Article 6.1). Although not arequirement, Parties who put in place measures that facilitate the flow of outward FDI are
encouraged to publish information on these measures (Article 6.5).
The final publication requirement is that information on requirements and procedures forthe temporary stay and entry of natural persons is readily available (Article 12). The
idea is to ensure that foreign businesspeople know what travel policies they would need tocomply with if they ever need to enter the territory to support establishing or operationalizing
7

This obligation does not apply during situations of emergency.

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Investment Facilitation for Development Agreement: A reader’s guidethe investment activity. The agreement makes it clear that this requirement does not apply
to providing information on broader immigration policies relating to the permanent entry ofpeople.
While most of the articles emphasize that information must be published via official
publications, Parties also agree to make sure that certain key information is to be provided
via electronic means, which usually is assumed to mean that it should be available online(Article 6.4). The information, which is expected to be kept up to date, includes practicalinformation relating to requirements and procedures (e.g., information on construction
permits or the payment of taxes) to laws and regulations focused on FDI, to information on
sectors that are open or restricted for FDI. Other items that should be published online are
the requirements and procedures relating to authorizations (Article 7.1).
Parties are encouraged to make the above information (along with the measures publishedunder Article 6.1) available in a single information portal and try their best to ensure theinformation is kept up to date (Article 8).8

Improving the Development of Regulatory Measures
Parties are also encouraged to undertake good regulatory practice-type efforts, which
are improvements in how regulatory measures are developed and implemented. They areencouraged to provide a reasonable period between the publication of laws and regulations andwhen compliance is expected, as well as try to offer clarity on the rationale and purpose behindthe law or regulation (Articles 6.2 and 6.3). These types of improvements are seen as valuablefor helping investors know what is expected of them and adapt in time for compliance.
For regulatory measures that are under development, Parties shall also, to the extent
practicable, facilitate stakeholder comments from investors and interested persons
on such proposed measures (Article 10.3). While Parties are required to consider thesecomments, they are not obliged to incorporate them. There is also a footnote caveat, whichnotes that proposed taxation measures relating to FDI activities are exempt from such acommenting requirement.9

Fees and Notification Requirements
Other requirements include ensuring that Parties do not impose fees when foreign investors
seek to access the relevant information within the scope of this agreement (Article 9). Finally,
to help with transparency efforts through the WTO itself, they must notify to the WTO of
new and important changes to laws and regulations that relate to FDI activities, together with
relevant linkages and contact information (Article 11).

Generally, Parties can either input the information directly or indirectly by including links to the relevant
websites on which the measures and information are published (WTO, 2023b).
8

Provisions that focus on improving stakeholder engagement are viewed as valuable for ensuring regulations
consider the needs and concerns of those who are ultimately impacted by the policies (OECD, 2012). However,critics argue that these engagement efforts often cede influence to foreign parties on domestic policy matters andthat the views of business stakeholders are prioritized over stakeholders with limited resources (Trew, 2019).
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Investment Facilitation for Development Agreement: A reader’s guide

Summary of Section II (Transparency of Investment Measures)
Article 6 Publication and Availability of Measures and Information•

publish or make publicly available (except in emergency situations) all enacted
measures of general application relating to inward FDI activities•

publish international agreements that affect investments to which the IFDA
participant is a party•

allow reasonable time between the publication of laws and regulations and whencompliance is required•

explain the rationale behind new or amended laws and regulations•

ensure particular information of value for foreign investors is available via
electronic means•

publish or make publicly available all measures of general application relating tooutward FDI activities

Article 7 Information to Be Made Publicly Available if an Authorization Is Required for an
Investment•

publish or make publicly available information on requirements and procedures
relating to FDI authorizations

Article 8 Single Information Portal•

make the information of Articles 6.1, 6.4, and 7.1 available through a single
information portal, and try to keep this information up to date. When publishing
information on 6.4 and 7.1 specifically, do so in one of the WTO official languages•

provide information on focal points established as a part of this agreement

Article 9 No Fees Imposed for Access to Information•

impose no fees for access to information on the measures under this section

Article 10 Publication in Advance and Opportunity to Comment on Proposed Measures•

publish in advance new or amended laws and regulations of general application
relating to FDI activities. Provide documents with relevant details on proposed
laws and regulations•

publish in advance new or amended procedures and administrative rulings ofgeneral application relating to FDI activities•

provide investors and interested stakeholders an opportunity to comment on
proposed regulations and laws, and proposed procedures and administrative
rulings of general application

Article 11 Notification to the WTO•

notify new or significant amendments to laws and regulations of generalapplication relating to inward FDI activities

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Investment Facilitation for Development Agreement: A reader’s guide•

notify official places where the information is published, the websites, andcontact information of competent authorities and focal points

Article 12 Information to Be Made Publicly Available on the Entry and Temporary Stay of
National Persons for the Purpose of Conducting Investment Activities•

make information publicly available online on requirements and procedures
relating to business travel to establish or operationalize FDI activities

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Investment Facilitation for Development Agreement: A reader’s guide

Section III. Streamlining and Speeding Up
Administrative Procedures
Another core pillar of the agreement is Section III on Streamlining and Speeding Up
Administrative Procedures. The obligations of this section focus on removing excessive
bureaucratic impediments and red tape relating to administrative procedures. The
expectation is that this will promote a more reliable and predictable regulatory environment
and efficient administrative procedures (WTO, 2019b). Proponents have argued thatthese reforms can improve investment climates, which, in turn, can facilitate the flow andoperations of investments.

Principles for Implementing FDI-Related Administrative
Procedures
When implementing administrative procedures relating to FDI activities, the Parties agree
to meet certain standards. They agree to ensure that measures of general application areadministered in a reasonable, objective, and impartial manner (Article 13). Whenauthorizations are required for the FDI activity to take place, the Parties will make sure thatthe authorization-related procedures are not too complicated and burdensome, are impartial,
and are based on objective and transparent criteria. These procedures should not be used tounjustifiably prevent an applicant from fulfilling the authorization requirements (Article 14).

Application Requirements
The section includes a range of requirements for how authorities are expected to treat
applications submitted as a part of the authorization process of an FDI activity. Table 1
summarizes how Parties agree to treat FDI applications.

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Investment Facilitation for Development Agreement: A reader’s guide

Table 1. Obligations about treatment of FDI applications
ArticleProvision

Obligation

Article 15.1

Submission
periods forapplication

Applications should be allowed all year, if feasible. If a
specific submission period exists, the Party will ensure it isreasonable.

Treatment ofauthenticatedcopies

Ideally, authenticated copies should be accepted in lieu oforiginal copies, especially if another competent authority isholding the original.

Processing of
applications

Indicative timelines for processing, status, and application
decisions should be communicated to the applicant.
Processing of applications should be done within areasonable time frame.

Treatment ofincomplete
applications

Applicants should be informed of the incomplete natureof the application and be provided with guidance and an
opportunity to submit the missing information. If such
steps are not practicable, the competent authority must
inform the applicant of the rejection of its application
within a reasonable period.

Treatmentof rejected
applications

Authorities should explain why the application is being
rejected and the procedures for resubmission. An
applicant should not be prevented from submitting futureapplications due solely to a previously rejected application.

Article15.2

Treatmentof approved
applications

Authorizations, once granted, should come into effectwithout undue delay based on terms or conditions.

Article 16

Treatmentin case ofmultipleapplications

Authorities should avoid requirements that would result in
the applicant approaching multiple competent authorities
for investment authorization. If multiple applications are
required due to the involvement of different jurisdictions,the coordination of applications is encouraged through asingle entry point/information portal.

Articles 17
and 17 bis

Treatment offees

Should authorization fees exist, they should be reasonable
and transparent and not restrictive. Should new oramended fees be implemented, they should only comeinto force within reasonable time frames and will only bein effect if information has been published. Regarding
fees for financial services applications, information on
fee schedules or details relating to how fee amounts are
determined should be provided.

Article 18

Use of ICT/Egovernment

Subject to resource availabilities, competent authorities
will undertake efforts to accept electronic applications.
If feasible, electronic payments of fees should also be
accepted.

Source: Author.

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Investment Facilitation for Development Agreement: A reader’s guide

Improving Trust in, and Integrity of, Administrative
Decisions
The remaining articles seek to improve the trustworthiness and integrity of the administrativedecision-making process. These are regarded as important features for strengthening confidence
in the reliability of the investment climate. Parties must ensure that the competent authorities
involved in investment authorizations make their decisions independently (Article 19).
More broadly, Parties must also maintain tribunals or procedures that allow for the review
or appeal of administrative decisions that affect an investment activity, and the review
or appeal process should also be carried out in an independent manner that is objective
and impartial (Article 20). These processes are expected to provide the affected investor
with the right to defend their position and submit relevant information, along with the rightto a new decision based on the evidence. The latest decision, should it be positive, must
be implemented by the relevant competent authorities. The article, however, includes animportant clarification that Parties need not institute the new tribunals or procedures if theseprocesses are inconsistent with domestic legal structures.
Finally, Parties are encouraged to carry out ex-post review efforts to ensure that FDI
measures remain effective and efficient. They are encouraged to review their measures ofgeneral application to make sure they remain effective in achieving the stated public policy
objectives and to address the specific needs of micro, small, and medium-sized enterprises(MSMEs). Other efforts should include periodically reviewing authorization fees to reduce
their number and diversity. When undertaking these ex-post reviews, the Parties areencouraged to consider stakeholder feedback, as well as international performance indicators.
They are also encouraged to share their experiences on ex-post review efforts via theCommittee on Investment Facilitation (Article 21).

Summary of Section III (Streamlining and Speeding up Administrative
Procedures)
Article 13 Reasonable, Objective, and Impartial Administration of Measures•

administer measures of general application relating to FDI activities in areasonable, impartial, and objective manner

Article 14 General Principles for Authorization Procedures•

apply principles when implementing authorization procedures, including ensuring
procedures are not complicated and burdensome, are impartial, and are based on
objective and transparent criteria•

competent authorities will assess authorization applications on the basis of
criteria set out in the measure that are in accordance with the Party’s legal
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Investment Facilitation for Development Agreement: A reader’s guide

Article 15 Authorization Procedures•

If an authorization is needed for an investment, Parties agree to take specificsteps relating to:•submission periods•

authenticated copies•

processing of applications•

incomplete applications•

rejected applications•

approved applications

Article 16 Multiple Applications•

Avoid requiring multiple applications for investment authorization. If unavoidable,consider using a single entry point for applications.

Article 17 Authorization Fees•

Ensure authorization fees are reasonable, transparent, based on authority set out
in measure, and don’t seek to restrict investment activities. Ensure a reasonable
period between when the fee is published and date for compliance.

Article 17 bis Authorization Fees—Financial services•

provide the applicant with a schedule of fees or how fee amounts are determinedand ensure such fees are not used as a means for avoiding agreement obligations

Article 18 Use of ICT/E-Government•

accept electronic submissions/formats of applications•

allow for electronic payment of authorization fees

Article 19 Independence of Competent Authorities•

ensure authorization decisions by competent authorities are undertaken in an
independent manner

Article 20 Appeal or Review•

maintain or institute processes or tribunals that allow affected investors torequest an appeal or review of decisions relating to investment activities•

ensure the process provides affected investors with a reasonable opportunity to
defend their positions and to make decisions based on evidence and records

Article 21 Periodic Review•

review relevant measures of general application and assess whether they need
to be modified to ensure their effectiveness in achieving policy objectives and inmeeting the specific needs of MSMEs•

periodically review authorization fees to reduce their number and diversity•

consider stakeholder feedback and relevant international performance indicators
during the review process and share experiences with the committee

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Investment Facilitation for Development Agreement: A reader’s guide

Section IV. Focal Points, Domestic
Regulatory Coherence, and Cross-Border
Cooperation
This section focuses on improving cooperation on investment facilitation measures acrossdifferent levels. First, it seeks to enhance cooperation between governments and investors;
second, it aims to strengthen cooperation among the Parties themselves; finally, it aims tostrengthen cooperation between domestic regulatory agencies through domestic coherence
efforts. The different types of cooperation efforts are considered important for promoting
improved linkages with investors and among Parties, for knowledge sharing, and forcontributing toward a transparent and predictable regulatory environment, all of which areseen as important features for facilitating investments (WTO, 2019c).

Improved Cooperation Between Investors andGovernments
The section includes three articles aimed at enhancing communication between
governments and investors. These additional efforts are valuable for addressing ground-levelobstacles that investors may face and function as a feedback mechanism for policy-makers
to understand the concerns of investors. Parties must establish or maintain at least one
focal point (or an equivalent appropriate mechanism) to respond to investor inquiries
on matters relating to the measures covered by the agreement (Article 22). That focal point
can also assist investors in obtaining relevant information from the competent authorities
responsible for implementing the measures of the agreement. Parties are encouraged torefrain from collecting fees when responding to such inquiries. Other functions can also
be attributed to the focal point, such as helping to resolve investor problems or providing
recommendations to improve the investment environment.10
Another way Parties are encouraged to improve their cooperation with investors is byenhancing opportunities for such investors to be linked to domestic suppliers. The Party
is encouraged to set up one or more databases that provide investors with relevant
information on domestic suppliers, specifically on MSME suppliers (Article 24). The
idea behind such databases is to help investors access useful information to help themwith sourcing efforts, and to offer local MSMEs the opportunity to access new buyers of
their goods and services and be linked into global value chains. The database can havedifferent features, including, for example, being searchable online and being searchable
according to specific characteristics, such as sector, industry, certifications, and so on.
The job of establishing such a database can be allocated to public or private entities, andShould Parties designate the additional task of resolving problems to such a body, it is important to rememberthat such a function can entail different priorities and objectives. For example, the Party can set up the focal point
to provide aftercare services that help investors address operational issues, or they could have the focal point serve
as a grievance management mechanism focusing on mediating solutions between investors and the government(WTO, 2023b).
10

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Investment Facilitation for Development Agreement: A reader’s guideParties would not be held liable for the information in the database. A final article, thesupplier development program article, encourages Parties to implement programs thatcan strengthen the capabilities of local suppliers so that they can better meet the sourcing
demands of investors (Article 25). Although these two articles are best-endeavour disciplines,
they are considered beneficial to implement, given their focus on strengthening the ties
between investors and the local economy to extend the FDI benefits within the host economy.

Improved Cooperation Among Parties
The agreement also aims to improve cooperation between Parties that could facilitate
investment. Cross-border cooperation efforts include requirements to respond to inquiries
from other Parties on matters falling within the scope of the agreement (Article 26). To doso, the Party may set up an enquiry point or use the focal point (or another appropriate
mechanism) it had set up as a contact point for investor enquiries. In addition, Parties
are expected to encourage cooperation among relevant competent authorities by sharing
experiences, exchanging information relating to domestic investors, and collaborating on
facilitation agendas that can help increase investments for the development and benefit of
MSMEs. Parties are encouraged to inform the Committee on Investment Facilitation of suchcooperation efforts.

Domestic Regulatory Coherence
Finally, the agreement aims to encourage Parties to improve the coherence of their domestic
regulatory practice. In this section, they are encouraged to conduct regulatory impact
assessments (RIAs), which are ex-ante evaluations, when developing major regulations
that relate to the FDI activities of investors (Article 23). Undertaking ex-ante evaluations
is seen as a valuable means to improve the quality of a regulation by assessing whether
the regulation helps achieve the state policy goal and identifying potentially alternativemeans that may serve as a better approach (OECD, 2012). When undertaking the RIAs,
Parties are expected to facilitate stakeholder comments during the assessments, as well as
take the opportunity to assess what impact a proposed regulation would have on investors(and MSMEs in particular). When conducting such assessments, the agreement suggeststhat Parties consider analyzing aspects relating to the economic, social, and environmental
impacts of the measure under consideration. Finally, Parties must also put in place
processes that seek to improve cooperation among competent authorities to coordinate theiractivities to better facilitate investments.

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Investment Facilitation for Development Agreement: A reader’s guide

Summary of Section IV (Focal Points, Domestic Regulatory Coherence,and Cross-Border Cooperation)
Article 22 Focal Points•

establish or maintain a focal point to respond to investor enquiries on theagreement or to assist such investors in obtaining information from competentauthorities•

avoid requiring payments of fees when responding to investor enquiries

Article 23 Domestic Regulatory Coherence•

conduct regulatory impact assessment when preparing major FDI-related
regulatory measures•provide reasonable opportunities for interested persons to comment during the
RIA analytical process•ensure improved cooperation of competent authorities responsible for investment
procedures

Article 24 Domestic Supplier Databases•

promote the establishment of one or more databases with relevant and up-todate information on domestic suppliers, including on MSMEs

Article 25 Supplier Development Programs•

implement programs to strengthen the capabilities of domestic suppliers tobetter respond to the sourcing demands of investors

Article 26 Cross-Border Cooperation on Investment Facilitation•

designate enquiry point responsible for responding to questions on agreementfrom other Parties•

encourage cooperation between different Parties’ competent authorities•

inform Committee on Investment Facilitation of the cooperation efforts
undertaken

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Investment Facilitation for Development Agreement: A reader’s guide

Section V. Special and Differential
Treatment for Developing and Least
Developed Country Parties
While developed country members are expected to implement all the rules of the agreementby the time it enters into force, it is understood that developing and LDC members, due totechnical and resource capacity-related challenges, may need more time and the acquisition of
capacity to do so. The objective of this section is to provide those countries with special rights inthe form of additional benefits and flexibilities when implementing the rules of the agreement.
At the WTO, any member can self-designate themselves as a developing country for a given
WTO agreement and avail themselves of the inherent flexibilities outlined through thespecial and differential treatment (S&DT) provisions. LDCs often have access to additional
flexibilities, and the WTO, in this instance, uses the United Nations classification for whether agiven economy is an LDC.
The section is modelled on the S&DT approach developed under the TFA, often regarded
as an innovative approach to S&DT at the WTO. Rather than benefiting from uniform
exemptions or standardized longer implementation periods (as had been the case with past
WTO agreements), developing country members and LDC members can determine forthemselves the additional time they would need, as well as the capacity-building and financial
support required, to implement the various obligations contained in the agreement andnegotiate these conditions and transition periods with other members.

Longer Implementation Periods and Capacity-Building
Support for Implementation
The first article in this section is dedicated to general principles that build a common
understanding on why and how additional flexibilities and benefits are granted to developingand LDC Parties (Article 27). Principles include acknowledging that developing and LDC
Parties may face difficulties in implementing the obligations of the agreement right away andthat support should be provided to assist them with implementation. In case the necessary
capacity is not provided, then developing and LDC Parties will not be required to implement
the relevant provision until that capacity has been acquired.
Based on this common understanding, developing and LDC Parties can then schedule theimplementation of the rules of the agreement into three different categories (Article 28). Rules
that developing country Parties expect can be implemented immediately—or after 1 year, inthe case of LDCs—are scheduled as Category A provisions. Provisions that developing and
LDC Parties could only implement after a transition period are scheduled under Category
B. Finally, provisions that require not only more time but also targeted capacity-building andtechnical assistance support to be implemented are scheduled as Category C commitments.
The article also notes that self-designations of the substantive provisions into the different
categories shall be guided by self assessments that assess to what extent a developing and
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Investment Facilitation for Development Agreement: A reader’s guide

LDC Party already complies with the IFDA framework. TheWTO Secretariat has produced a self-assessment guide to support
developing and LDC members to carry out such needs assessment
analysis. It is recognized that undertaking such an analysis is highly
important to prevent developing and LDC Parties from notifying
commitments that are uncertain or inconsistent with domestic
realities. A footnote clarifies that assistance should be provided tohelp developing and LDC Parties carry out these self assessments.
Beyond notifying the designations of the different provisions,developing and LDC Parties must also provide informationon the deadlines for when they assume the articles will be
implemented. In the case of Category C commitments, Parties
must also provide information on what their capacity-building
needs are. Once support has been provided and implementationis underway, the Parties must provide information on thecapacity-building arrangements that have been set up and theprogress of such arrangements in helping countries to comply
with the obligations. Table 2 summarizes the notification andimplementation deadlines expected of developing and LDC
Parties as a part of the S&DT scheduling process.

Category B

Category A

Table 2. Notification and implementation requirements of Categories A, B, and C (Articles 29 and 30)
Requirements

Developing country Party

LDC Party

Comments

Notification ofdesignation

Upon entry into force of theagreement

Up to 1 year after entry into forceof the agreement

Commitments designated under
Category A are to be an integral
part of the agreement.

Implementation ofprovisions

Upon entry into force of theagreement

Up to 1 year after entry into forceof the agreement

Notification ofdesignation

Upon entry into force of theagreement• No later than 1 year after entry
into force of the agreement• Confirm the designation no later
than 2 years after entry into
force

Notification ofdeadlines for
implementation• Indicative deadlines: Upon
entry into force• Definitive deadlines: Nolater than 1 year after
entry into force• Indicative deadlines: No later
than 1 year after entry into force• Definitive deadlines: No later
than 2 years after entry into
force

Additional time to notify adefinitive timeline can berequested of the committee.

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Category C

Investment Facilitation for Development Agreement: A reader’s guide

Requirements

Developing country Party

LDC Party

Notification ofdesignation

Upon entry into force

1 year after entry into force

Notification ofdeadlines for
implementation• Indicative deadlines: Upon
entry into force• Definitive deadlines:
Within 1.5 years after
entry into force• Indicative deadlines: Nolater than 2 years from whencapacity-building needs were
notified• Definitive deadlines: No later
than 1.5 years from the datewhen capacity-building
arrangements were notified

Notification of
capacity-building
needs

Information on needs: Upon
entry into force

Information on needs: 1 year
after notification of Category C
designation

Notificationof progress of
capacity building• Information on new or
ongoing capacity-building
arrangements: Within 1
year after entry into force• Updated progresson capacity-building
arrangements: Within
1.5 years from the datewhen arrangements were
notified• Information on new or ongoing
capacity-building arrangements:
No later than 2 years from whencapacity-building needs were
notified• Updated progress on capacitybuilding arrangements: Nolater than 1.5 years from thedate when arrangements were
notified

Comments

Additional time to notify adefinitive timeline can berequested of the committee.

• Arrangements will be on
mutually agreed terms,
either bilaterally or throughinternational organizations.
• The committee may invite nonParties to provide information
on relevant capacity-building
arrangements.
• Parties may also include
information on implementationplans or projects, the agencies
responsible for implementation,and the donors with whomarrangements are already inplace.

Source: Author.

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Investment Facilitation for Development Agreement: A reader’s guide

Delays, Changes in Category Designation, and Grace
Periods
There is a recognition that unforeseen circumstances or difficulties may result in Parties notmeeting their implementation deadlines. These Parties can, therefore, benefit from additional
flexibilities, such as deadline extensions, the possibility to shift designations between
categories, access to expert group recommendations, and grace periods shielding Parties fromthe potential of WTO disputes.
If developing country Parties are unable to meet the implementation deadlines initiallyscheduled for Category B and C obligations, that difficulty must be notified to the Investment
Facilitation Committee at least 120 days before the expiration of the implementation deadline.
In the case of LDCs, that difficulty would have to be notified 90 days beforehand. After
explaining the delay, if the developing country Party requests an extension lasting less than ayear and a half (and, in the case of LDCs, less than 3 years), then those requests for extensions
will be automatically granted (Article 31).
If, however, the request for an extension is longer, or if that request is asking for a second
extension, then it will be up to the Committee on Investment Facilitation to determine
whether the request should be approved. If such extension requests are not granted, thecommittee will then set up an expert group composed of five independent persons, diverseand qualified in the field of investment facilitation, who will then provide recommendations
within 3 months on how best to address the implementation challenges (Article 32). During
the expert review process, dispute settlement proceedings under the WTO’s dispute settlement
system cannot be brought against the Party being reviewed.
Parties have the possibility of shifting designations between Categories B and C. If Parties
realize that some of the provisions would require capacity-building support after all, they
then have the possibility of shifting the designation of their Category B provisions into
Category C (Article 33). For the new Category C provisions, information must be provided
on what support and assistance requirements are needed. If additional time is necessary
to implement the new Category C provisions, the developing country or LDC Party has
the option of requesting the automatic extension deadlines described above. It can also
request an examination by the committee and the setting up of an expert group to provide
recommendations for implementation. In the case of LDCs, should they request a deadline
extension of more than 4 years for these newly designated Category C provisions, that request
will have to be approved by the committee.
Following all the above flexibilities, if the developing and LDC Parties continue to fail to
implement the different rules of the agreement, then this leaves open the potential for otherParties to raise a dispute claim against the non-compliant Party to enforce compliance. The
section, however, provides additional flexibilities in the form of grace periods that shielddeveloping and LDC Parties from the potential of such disputes for a period (Article 34). If adeveloping country Party fails to implement its Category A provisions, it can access a 2-year
grace period following the agreement’s entry into force. For LDC Parties, that grace period
is extended to 6 years. In the case of Category B and C provisions, while an additional grace
period flexibility is not available for developing country Parties, LDC Parties are granted one

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Investment Facilitation for Development Agreement: A reader’s guidelasting 8 years. Beyond such grace periods, Parties are, in general, expected to exercise due
restraint when it comes to bringing dispute proceedings against LDCs. To date, no WTO
dispute has ever been brought against an LDC Party.

Requirements on Donors
The section also clarifies what is expected from donor Parties when supporting developingand LDC Parties in implementing the agreement (Article 35). There is an important footnote
in this article that clarifies that a donor Party can also be a developing country that is in aposition to provide support.
The main provision in the article states that donor country Parties will agree to facilitate
technical assistance and support on terms mutually agreed with developing and LDC
Party counterparts. The support would either be provided bilaterally or via internationalorganizations. More targeted support is expected to be provided to LDCs.
When providing support, the agreement sets out certain principles that should be applied toensure that activities are efficient and effective. Examples include making sure to consider theoverall development framework and existing reform efforts of the recipient country, as well as
making sure that private sector needs are factored in when implementing support activities.
Regional and subregional integration facilitation needs must also be considered, and efforts tocoordinate between agencies, institutions, and structures are also expected to be built upon.
The Investment Facilitation Committee will hold at least one dedicated session each year tomonitor the progress of support activities. Beyond the principles, the agreement also provides
some guidance on what types of technical assistance may be provided. Examples include
assistance in building the expertise of relevant authorities to maximize the positive impacts ofinvestment, as well as building capacity to prepare feasibility studies for investment projects.
The final article of the S&DT section focuses on information requirements that both donor
and recipient country Parties must provide to ensure transparency and improved coordinationof support activities (Article 36). Donor Parties are expected to submit information on
their processes and mechanisms for requesting support, as well as disbursement-focused
information (e.g., amounts, descriptions of activities, recipients) once the support activities
are underway. Recipient Parties, on the other hand, are expected to submit up-to-date contact
information on agencies and offices that are responsible for coordinating such activities
at the recipient end. Having provided relevant contact and procedural information, theWTO Secretariat is expected to help make this information publicly available. In addition,
collaborations with other international and regional organizations are likely to be maximized
to carry out evaluations of investment facilitation needs and for the implementation of support
activities. These partner organizations may also be invited to share relevant information duringcommittee meetings.

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Investment Facilitation for Development Agreement: A reader’s guide

Summary of Section V (Special and Differential Treatment forDeveloping and Least Developed Country Parties)
Article 27 General Principles•

Developing (and especially LDC) Parties may face special difficulties in
implementing the agreement and assistance and support should be provided toaddress such difficulties.

•

The extent and timing of commitments should be determined based on
implementation capacities. If support is lacking, then implementation of relevant
provisions will only be required if capacity support has been provided.

•

LDC Parties need only make commitments consistent with their development,
financial needs, and administrative and institutional capabilities.

Article 28 Categories of Provisions•

Provisions that are implemented by entry into force (or 1 year after entry into
force for LDCs) can be categorized as Category A.

•

Provisions that require additional time for implementation can be categorized as
Category B.

•

Provisions that require time and capacity-building support for implementation
can be categorized as Category C•

Category designations can be determined on an individual basis by selfassessing compliance levels and implementation needs.

Article 29 Notification and Implementation of Category A•

comply with specific Category A notification and implementation deadlines (SeeTable 2)

Article 30 Notification of Dates for Implementation of Categories B and C•

comply with specific Category B and C notification, implementation deadlines,
and information-provision requirements on support programs (see Table 2)

Article 31 Early Warning Mechanism: Extension of implementation dates for provisions in
Categories B and C•

Inform the committee if implementation deadlines will be missed; if extension
requests are 1.5 years (or 3 years in the case of LDCs), the extensions will be
automatically granted. Longer extensions or requests for second extensions will
require the approval of the Committee.

Article 32 Expert Group to Support the Implementation of Category B and C•

If an extension request is not granted, and if implementation of a Category C
provision is not feasible with existing capacity, the Committee will establish an
expert group to examine the issue and to provide recommendations within threemonths following its composition.

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Investment Facilitation for Development Agreement: A reader’s guide•

The expert group will be composed of five independent persons qualified ininvestment facilitation and capacity-building support, and it must be balanced
between developing and developed country Parties.

•

The expert group will consider a self-assessment capacity gap analysis of thecountry when making recommendations. For LDCs, the committee will facilitate
the acquisition of sustainable implementation capacity for implementing expert
group recommendations.

•

No dispute claim may be raised during the expert group deliberation process, andin the case of LDCs, until the committee decides on the issue.

Article 33 Shifting Between Categories B and C•

If implementation expectations change, Parties can notify the committee of theshift in designations between Categories B and C. If the shift is from Category
B to C, Parties should provide information on the additional capacity-building
support needed.

•

Parties can request approval from the committee if extension request is longer
than the automatically permitted timeline.

Article 34 Grace Period for the Application of the Understanding of Rules andProcedures Governing the Settlement of Disputes•“Grace period” for dispute settlement proceedings for•developing countries is 2 years after the agreement's entry into force forCategory A provisions•

LDCs is 6 years after the agreement's entry into force for Category A
provisions•

LDCs is 8 years after specific implementation deadlines for Category B and
C provisions•

Parties recognize the special situation of LDCs and shall exercise due restraint on
matters relating to dispute settlement proceedings.

•

Parties will provide adequate opportunities to discuss matters relating to theAgreement's implementation during the grace periods.

Article 35 Provision of Assistance and Support for Capacity Building•

Donor Parties agree to provide technical assistance and support on mutuallyagreed terms, either bilaterally or through international organizations, to help
recipient countries implement agreement’s measures.

•

Ensure targeted support to LDCs, especially to help them build sustainablecapacity to implement the commitments. Comply with assistance principles andensure the support does not compromise existing development priorities.

•

Apply principles when providing support and assistance, including considering
the overall development framework and existing efforts, regional and subregional
integration efforts, reform activities relating to the private sector, and promotionof coordination activities among Parties and institutions. Encourage developing
countries to provide capacity-building support where possible.

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Investment Facilitation for Development Agreement: A reader’s guide•At least one session of the committee per year will review implementation andcapacity-building support progress.

Article 36 Information on Assistance and Support for Capacity Building to Be Submitted
to the Committee•

Submit information on the provision of capacity-building support for
implementing the agreement. On an annual basis, donor Parties must relay
information on disbursement, status, procedures, beneficiaries, and implementing
agency.

•Submit contact point information and relevant mechanisms, on both a donor andrecipient country basis.

•

Make the above information publicly available via the WTO Secretariat.

•

Committee to invite relevant international and regional organizations to provide
information on capacity-building progress. The WTO may collaborate with suchorganizations to evaluate the needs for investment facilitation and jointly provide
assistance.

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Investment Facilitation for Development Agreement: A reader’s guide

Section VI. Sustainable Investment
This section recognizes that additional effort may be needed to facilitate the flow of higherquality investments, referred to as “sustainable investments.” The expectation is that
implementation of this section’s articles will result in facilitating investments that deliver
higher value for sustainable development objectives. Two types of articles are included: the firston responsible business conduct (RBC) and the second on measures against corruption.
First, Parties agree to encourage investors and enterprises operating in their jurisdictions tovoluntarily incorporate internationally recognized principles, guidelines, and standards on
RBC into their internal policies and business practices (Article 37). In addition, the host stateis also expected to encourage investors to maintain meaningful engagement and dialogue
with Indigenous, traditional, and local communities to support the responsible conduct of
their business. Parties agree to share their experiences and best practices regarding such
efforts through the Committee on Investment Facilitation. Finally, Parties are encouraged torecognize the important role of due diligence in ensuring RBC in international supply chains.
Article 38 sets out requirements to implement measures against corruption. Under thisarticle, host states agree to develop measures that prevent and fight corruption and moneylaundering activities that fall within the scope of the agreement. The article also recognizes
that certain key principles should be applied when developing anti-corruption policies, such asaccountability, transparency, and integrity. Finally, Parties are expected to exchange information
on best practices and identify opportunities for collaboration in fighting corruption in their
discussions in the committee that would be established under this agreement.
Although the two articles above are requirements, a failure to implement them will not result
in consequences relating to dispute claims. A provision in Article 44 on dispute settlement
clarifies that Parties do not have recourse to dispute settlement proceedings for mattersrelating to the articles on RBC and measures against corruption.
The two articles have attracted praise on the basis that this is the first time that articles
focusing on responsible conduct have been included in a potential WTO agreement (Sauvant,2022). These articles also recognize the importance of implementing government measuresthat directly facilitate the flow of sustainable investments rather than simply assuming that
beneficial outcomes will eventually be achieved indirectly through the facilitation of broader
FDI flows. As a counterpoint, however, concerns have also been raised that these two articles
are the only ones excluded from dispute settlement proceedings, making them function as
minimal obligations on a member (Jansen Calamita, 2023). The exclusion also results in ahierarchy of sorts between the other obligations that facilitate the flow of broader investments
and rules that aim to facilitate the flow of sustainable investments. It could also be argued that,given the urgency of attracting private investment that boosts sustainable development, theinclusion of just four articles (these two and the articles on supplier development) on theseissues leaves something to be desired.
A final concern that has been raised is the logic of applying the obligations from a hoststate perspective rather than also applying such obligations to home states. The latter, as

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Investment Facilitation for Development Agreement: A reader’s guide

capital-exporting countries, are primarily developed economies. The affluence of thesecountries means that they may be better positioned to implement activities that encourage
RBC behaviour and undertake efforts to monitor good corporate behaviour. While a homecountry measure had been initially considered, Parties could not agree to include such ameasure due to some Parties arguing that the agreement should primarily focus on host states’
requirements (Jose et al., 2022). Some developing country Parties have also raised concerns
about such provisions due to their increasing role as capital-exporting Parties.

Summary of Section IV (Sustainable Investments)
Article 37 Responsible Business Conduct•

encourage businesses to incorporate international guidelines, standards, andprinciples on RBC into business practices and policies•

encourage businesses to maintain meaningful engagement and dialogue withdomestic communities•

recognize the importance of implementing due diligence for RBCs•

exchange information and best practices on efforts

Article 38 Measures Against Corruption•

ensure measures are taken to prevent and fight corruption and money laundering
within the scope of the agreement•

recognize select principles (accountability, transparency, and integrity) whendeveloping anti-corruption policies•

exchange information and best practices on efforts

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Investment Facilitation for Development Agreement: A reader’s guide

Section VII. Institutional Arrangements
and Final Provisions
This section is the final one in the agreement. It addresses institutional questions, such as
the following: the functions of the Committee on Investment Facilitation that would beestablished to monitor the agreement; horizontal legal provisions containing general, security,
financial, and monetary and exchange rate policies exceptions; and provisions clarifying how
the WTO’s dispute settlement mechanism can be used under the agreement.

A Dedicated Committee on Investment Facilitation
A significant segment of this section is Article 39, which establishes a WTO Committee on
Investment Facilitation. The committee, meeting at least once a year, is expected to facilitate thesharing of information and experiences on investment facilitation and review Parties' progressin implementing and administering the agreement. The committee has the power to set up
subsidiary bodies and is expected to collaborate closely with other international organizations.

An Issue to Pay Attention to From a Development
Perspective
Nestled within the article on the WTO Committee on Investment Facilitation is a provisionthat developing and LDC Parties must pay attention to due to its implications for capacitybuilding matters. Once the committee has been set up, it must engage in a discussion to
explore the possibility of setting up a dedicated fund (an Investment Facilitation Facility) thatwould manage the voluntary contributions of donor members, focusing on helping developing
countries and LDC Parties in implementing the agreement's provisions.
During the negotiating process, some developing and LDC Parties advocated for a stronger
commitment, asking that rather than exploring the idea Parties should instead agree to thecreation of such a fund. They argued that the facility would ensure dedicated funds areavailable and tied to the agreement's implementation. They noted the inclusion of a strong
commitment to a similar facility within the recently concluded fisheries subsidies agreement.
They also pointed to the experience of the TFA, which had also set up a dedicated facility
before the agreement came into force. Opponents of a more substantial commitment,
however, raised concerns that funding coordination efforts are activities that belong outside
the organization's mandate and should instead be carried out by other, more relevant,international organizations, such as the World Bank. The plurilateral nature of the initiative
also added some complexity to the debate. Should a facility be set up, it will likely use
Secretariat resources, which raises budget allocation questions. Given that the JSI has not(yet) received the backing of all WTO members, and some members remain vocal critics
of the process, it was determined that the creation of such a facility could not be agreed toright away.

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Investment Facilitation for Development Agreement: A reader’s guide

Horizontal Exceptions
The second type of article included in the section focuses on exceptions. Article 40 on
Disclosure of Confidential Information clarifies that nothing in the agreement can beconstrued as requiring Parties to provide confidential information that could impede law
enforcement, public interest matters, or prejudice against legitimate commercial interest.
Article 41 states that the articles on general and security exceptions in the General
Agreement on Tariffs and Trade (GATT) and General Agreement on Trade in Services(GATS) (having taken into consideration the necessary changes) will apply to the provisionsof this agreement as well. Those exceptions, then, apply to the obligations Parties undertake
under this agreement.
A financial exception article (Article 42) clarifies that the agreement cannot be used to preventa member from implementing measures for prudential reasons, for example, for maintaining
the stability of the financial system. Another exception, focusing more specifically on monetaryand exchange rate policies, clarifies that the agreement must not prevent Parties from being
allowed to adopt or maintain measures relating to such policies (Article 43).

Dispute Settlement and Final Provisions
This final section also includes an article on dispute settlement (Article 44), which clarifies
that Parties to the IFDA can use the WTO's dispute settlement mechanism for any disputethat may arise. However, the Parties are not allowed to use the mechanism to bring a claim
against another Party for failing to comply with the articles in the sustainable investment
section. The article also encourages Parties to use alternative dispute resolution solutions
provided under the Dispute Settlement Understanding, including good offices, conciliation,and mediation, rather than raising a formal dispute claim as a first solution.
The final type of article in this section sets out final provisions (Article 45). The article
provides clarity on how the agreement will enter into force, how Parties may either join orwithdraw from the agreement, and other remaining institutional details.
The agreement will enter into force once 75 Parties have deposited their instrument of
acceptance to the WTO Director-General (DG). For the remaining Parties, the rules will
apply 30 days following their own deposit of the instrument of acceptance. While Parties are
expected to implement the agreement upon its entry into force, developing and LDC Parties,
should they choose to use the flexibilities granted through the S&DT section, would only haveto implement according to the scheduling timeframe agreed to in that section.
It is clarified that a Party is not allowed to submit reservations regarding any of the provisionsof the agreement. However, amendments to the agreement can be made should the changes
be agreed to by consensus of the Parties. A Party may withdraw from the agreement at any
time and can do so by submitting a written notification to the WTO DG.
Other important clarifications include recognizing that nothing in the agreement can beconstrued as detracting from the rights and obligations that Parties have under the Marrakesh
Agreement establishing the WTO, as well as noting that the WTO Secretariat will service the

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Investment Facilitation for Development Agreement: A reader’s guideagreement. During the final stages of negotiations, an important footnote was added to thislast article. The footnote clarifies that more favourable treatment can be granted to Indigenous
persons within the host state's territory, as long as such a measure is not used as a disguised
restriction on investments from other members.

Summary of Section VII (Institutional Arrangements and Final Provisions)
Article 39 WTO Committee on Investment Facilitation•

Establish a Committee on Investment Facilitation upon integration of theagreement within the WTO framework.

•

The committee is expected to meet at least once a year.

•

The committee’s functions include:•

developing procedures for sharing information and experiences on investment
facilitation, as well as the identification of best practices;•

preparing an annual report on investment facilitation measures implemented
by members;•

maintaining close contact with other international organizations aroundinvestment facilitation to ensure support services are efficient and effective.
Inviting representatives from such organizations representatives to shareexperiences and relevant information;•

reviewing the operation and implementation of the agreement 4 years after
its entry into force and periodically thereafter. Ensuring periodic reporting to
the WTO General Council;•

considering engaging in ad-hoc discussions on specific issues and challenges
in a bid to find mutually agreed solutions;•

exploring the possibility of setting up an investment facilitation facility
to assist developing and LDC Parties in implementing the agreement's
provisions;•encouraging the sharing of experiences on measures of general application tofacilitate outward FDI.

Article 40 Disclosure of Confidential Information•

Obligations do not apply to confidential information, the disclosure of which
would impede law enforcement, public interests, or legitimate commercial
interests.

Article 41 General and Security Exceptions•

Exceptions of GATS Article XIV and Article XIV bis para 1a,1b, and 1c and GATT
Articles XX and XXI apply to this agreement as well.

Article 42 Financial Exceptions•

exception for measures for prudential reasons, as long as such measures are notdeveloped as a means for avoiding compliance with obligations

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Article 43 Monetary and Exchange Rate Policies•

exception for measures of general application concerning monetary policy,
exchange rate policy, or related measures.

Article 44 Dispute Settlement•

Disputes arising from this agreement can only be raised through the WTO's
dispute settlement mechanism.

•

Mechanisms to leverage good offices, conciliation, and mediation are provided in
Articles 5 and 25 of the Dispute Settlement Understanding.

•Recourse to dispute settlement is not permitted for matters related to Section VI
on sustainable investment.

Article 45 Final Provisions•

Agreement shall enter into force 30 days after the 75th Party’s deposit of theirinstrument of acceptance. Subsequent Parties ratifying will have rules apply
30 days following their own instrument of acceptance deposit. Developing and
LDC Parties that use Section V will implement the agreement according to theflexibilities inherent in the section.

•

Nothing in this agreement will diminish the rights and obligations of the Party
under the Marrakesh Agreement establishing the WTO.

•

Amendments to the agreement can be taken by consensus of the Parties.

•

A Party is allowed to withdraw from the agreement by written notification to
the WTO DG, and the withdrawal will come into effect 60 days following thenotification.

•

The agreement will be serviced by the WTO Secretariat.

•

Other: Registration, deposit, and annex integration clarifications.

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Investment Facilitation for Development Agreement: A reader’s guide

What’s Next in the IFDA Negotiating
Process
After concluding the substantive negotiations in July 2023, the co-coordinators of the JSI
process highlighted three key objectives that they intended to prioritize in the run-up to the
Ministerial Conference 13 (MC13) in Abu Dhabi in February 2024 (WTO, 2023c).
The first track was on “legal scrubbing,” and it was recently completed in November 2023.
The process resulted in the finalized English text, which represents the final result of theIFDA. During the legal scrubbing, the participants reviewed the July legal text and madecorrections to ensure technical coherence and accuracy. They also took the opportunity tonegotiate some additional final provisions, notably providing clarity on how non-Parties would
be able to join the agreement, should they choose to do so, at a later stage.
The second track of work is to encourage developing and LDC members11 to undertake
their needs assessment analysis. As mentioned, the needs assessments help members assess
the extent to which their domestic framework is already aligned with the provisions set out
through the IFDA framework. The information can then be used to determine how best toschedule their provisions as part of the S&DT scheduling process. The WTO Secretariat has
provided a standardized self-assessment guide to help countries with such assessments. Whilesome IFDA participants, such as the Lao People’s Democratic Republic, members of theOrganization of Eastern Caribbean States (OECS), and Ecuador, have started to undertake
pilot studies, some 30 other countries have voiced an interest in also doing the studies in 2024.
Convincing the remaining subset of developing and LDC members to carry out their needs
assessment analysis is highlighted as an important priority under this track. Donor members
and relevant international organizations are also assessing the extent of the support that they
can provide to assist with the conducting of needs assessments.

A Deep Dive Into the Legal Architecture Challenge
The final track, and one which is regarded as the most difficult, is to agree with the broader
WTO membership that the IFDA can be incorporated into the WTO framework. For theagreement to be permitted within the WTO framework, there are only a few ways this can bedone.
The participants in the JSI process have chosen to prioritize one approach over the various
options. They agreed to proceed within the WTO framework, thereby foregoing the optionof finalizing negotiations outside the WTO. They agreed that they would like to maintain theagreement as a stand-alone agreement, thereby foregoing the option of breaking the IFDA
into bits and pieces and integrating the separated provisions within existing WTO treaties,
such as the GATS and GATT. And finally, during a meeting in October 2023, the membersof the IFDA decided that they would no longer prioritize the option of convincing the broader
No distinction has been made between Parties and non-Parties when encouraging needs assessment studies;
therefore, the term “members” is used when referring to needs assessment activities.
11

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Investment Facilitation for Development Agreement: A reader’s guide

membership to incorporate the treaty as a multilateral agreement under Annex 1 of the WTO
Agreement (WTO, 2023d). For this option to have been successful, it would have required
convincing all 164 WTO members to sign onto the agreement so that all members would
have the rights of the agreement but would also be bound by its obligations. There was arecognition that convincing some non-signatory countries to agree to rules that they had norole in shaping may prove too challenging at this stage.
The IFDA participants, therefore, decided to prioritize the option of convincing the broader
membership to incorporate the IFDA into the WTO rulebook under Annex 4 on Plurilateral
Trade Agreements as established in Article X.9 of the WTO Agreement. Under this option,
the IFDA will be incorporated as a plurilateral agreement, in which the rules of the agreement
will be applied only to those who have signed it, meaning that the non-Parties will not bebound by the obligations of the IFDA. While non-Parties will be able to enjoy the benefitsof the agreement through the improvements that Parties make to their investment processes,
but they will not be able to enforce their access to those benefits through the WTO’s disputesettlement system.
Even though non-Parties will not participate in the agreement, their consensus, i.e., theirpermission, is still needed to add the IFDA as a plurilateral agreement within the WTO
framework.
Getting this permission, however, will be challenging and is likely to engender a highly
politicized debate in the run-up to the MC13. Below, we summarize some of the arguments thathave been raised between participants and non-participants as a part of the ongoing debate.

Ensuring the WTO System Remains Relevant
Proponents have argued that more variable geometry needs to be injected into the WTO
system to better respond to the demands of a membership body with increasingly diverse
needs pertaining to a rapidly evolving global trade landscape. The JSIs are viewed as aprototype to show what a more flexible WTO system would look like, which would be more
effective in negotiating a newer and more diverse set of issues among subsets of members(Mamdouh, 2021). The successful incorporation of the IFDA is, therefore, equated to awillingness to inject variable geometry into the system. It is seen as a means for ensuring that
the WTO remains relevant for the modern era.
Opponents of this argument, however, raise concerns that injecting more variable geometry
into the system may mean undermining a fundamental founding principle of the WTO—that
it is a forum for developing a multilateral trade agenda based on the consensus principle.12
Some non-participants worry that agreeing to incorporate the IFDA as a plurilateralagreement would be seen as a tacit agreement to move away from the multilateral agenda as apriority and to agree to a WTO system with more variable geometry, where the development
Some non-Parties argue that the JSI processes were launched without the permission of the entire WTO
membership. The lack of consensus means that the JSI negotiations should have had no legal mandate to proceedwithin the WTO. They also argue that the plurilateral initiatives have been a distraction, preventing the full
membership from concentrating on finalizing the multilateral negotiations on the Doha Development Agenda(DDA), which notably has a multilateral mandate.
12

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Investment Facilitation for Development Agreement: A reader’s guideof new rules does not require consensus from all members. They argue the importance of
maintaining agenda setting by consensus because it also ensures that the poorest and weakest
countries still have a voice and that their interests are not overridden to cater to the needs ofthe most influential and wealthy countries.

The Implementation Burden and the Risk of Disputes
Opponents have urged the IFDA’s JSI participants to reconsider their participation in the JSI
process by highlighting the significant implementation burden of having to comply with therules of the agreement. The IFDA would require reforming whole-of-government governanceprocesses across different levels of government that are implicated in the regulationor management of FDI activities. Some experts (Bernasconi-Osterwalder et al., 2020;
Mohamadieh, 2019; Singh, 2018) have highlighted that such reform efforts can be challenging
for resource-strapped countries and larger countries with complex legal and bureaucraticsystems, especially those in which decision-making powers are decentralized at the federal,
regional, and local levels.
Questions have also been raised about whether facilitation efforts should be subject tolegally binding treaty obligations that can, under the WTO system, be enforced through adispute settlement system with economic consequences if policies found to be inconsistent
with the obligations are not reformed. They argue that investment facilitation efforts should
instead continue to be guided by international frameworks that can be implemented on a
voluntary basis, such as UNCTAD and the Development Global Action Menu for Investment
Facilitation.
Another dispute-related risk is the issue highlighted in an earlier section on the potential useof the IFDA to justify ISDS claims through the IIA regime. While the firewall provision isviewed as important for reducing the dispute risk, eliminating that risk can only be done byreforming the old-generation investment treaties within the IIA regime.
As a counterpoint to the different concerns, proponents argue that binding commitments arenecessary to showcase a member’s commitment to follow through with investment facilitation
reforms. They also note that the threat of disputes (even within the ISDS context) isoverstated, and the risk for most developing country members is likely to be minimal. Beyond
the flexibilities and benefits granted through the S&DT section, there is also some policy
space flexibility provided through the language in many binding requirements. Examples offlexibility include recognizing that reform efforts would only have to be implemented “to theextent practicable” or “in a manner consistent with its legal system.”Accessing More Technical Assistance and CapacityBuilding Support
Many developing and LDC members participating in the IFDA have stated that one of themain reasons they joined is to access the S&DT benefits, notably the potential for capacitybuilding and technical assistance support to implement investment facilitation-related reforms.
Beyond increased funding through bilateral and international organization channels, these

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Investment Facilitation for Development Agreement: A reader’s guide

members also hope for the eventual creation of a dedicated investment facilitation facility thatwill coordinate funds to help developing and LDC members implement the measures of theagreement.
Opponents, however, argue that the setup of such a facility is far from guaranteed. They alsoemphasize that countries are already receiving significant technical assistance and capacitybuilding support on investment facilitation matters through existing bilateral and internationalorganization funding channels. Agreeing to the IFDA, however, changes the power dynamics
associated with undertaking such reforms. Whereas previously, countries could receive
financing support while undertaking voluntary domestic governance reforms, with theestablishment of the IFDA, that financing will now be linked to binding reforms.

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