National Regulation of Multinational Enterprises: An Essay on Comity, Extraterritoriality, and Harmonization

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Despite the economic importance of multinational enterprises (“MNEs”), there is a surprising paucity of law governing foreign direct investment (“FDI”), especially in comparison with the abundance of law governing trade. There is no multilateral legal arrangement governing FDI that is similar to the General Agreement on Tariffs and Trade (“GATT”), no organization similar to the World Trade Organization, and almost no courses in law schools on FDI law. The goal of this Article is to begin to remedy this state of affairs by proposing a conceptual model for analyzing the application of the national laws of home and host countries to MNEs operating within their territories. This Article also seeks to explain the extraordinary difficulties in reaching consensus on a multilateral agreement on investment similar in scope to the GATT, and to suggest an approach to negotiating such an agreement in a new multilateral forum, the World Investment Organization.