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Notorious for its non-participation in the international system of investment protections, Brazil is one of the most popular destinations for foreign direct investment (FDI) around the world. But unlike most countries, including its neighbours in Latin America, Brazil is neither party to any bilateral investment treaties (BITs) presently in force nor has it ever ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). And yet, the South American country may be on the verge of setting down an alternative and previously unforeseen track with the conclusion of the first cooperation and investment facilitation agreements (CFIAs). At this turning point in Brazil's investment treatymaking, this article explores the protection of foreign investment in Brazil in the absence of the traditional network of international investment agreements and the state's progressively changing approach to international investment law through the creation of a strong alternative negotiating model.
"Showing unambiguously that Brazil in fact enjoys a stable legal system which grants foreign direct investment the same material and procedural rights as national direct investment, the contributors to this book provide a truly informative and useful guide for those who work with law and policy in international investment."--Publisher's website
Zusammenfassung: The book brings to light how Latin American states have traditionally stood before the field of International Investment Law and Arbitration. It delves into their posture of resistance to critically examine how their perspective has gradually changed and how they have adapted and molded their investment agreements so as not to leave their position as players in the field of International Investment Law. Many Latin American states have appeared as defendants before international investment tribunals and some of these, like Venezuela, Bolivia or Ecuador, have denounced their international investment agreements. Deeming the law field as imbalanced, they have looked for alternatives to continue providing legal protection to foreign investors while protecting their right to regulate in the name of public interest. Some interesting investment agreements models, sometimes of a different ilk, have consequently flourished and have arrested the attention of those studying or working with international investment law. The main objective of this book is to critically discuss how Latin American states have accepted, resisted, or adapted themselves to international investment law and arbitration. Accordingly, the general connection between these states and international investment law are explained in an introduction which examines the general trends as per which Latin American states have offered a legal protection to foreign investments. The first part enters the merits of where international investment law and arbitration stand in some Latin American states whereby the experience of Brazil, Chile, Argentina, Venezuela, and Uruguay are discussed. The following parts explain the trends in international investment law and arbitration in Latin America. These trends are namely related to dispute settlement and governance, to the connection between investment law and human rights and finally to regionalization. In these parts, the experience of states like Brazil, Colombia, Peru, and Mexico are perused
This book is a thought-provoking and authoritative text on this fast moving field of international law.
This book shows how the current reform in investment regulation is part of a broader attempt to transform the international economic order. Countries in the North and South are currently rethinking how economic order should be constituted in order to advance their national interests and preferred economic orientation. While some countries in the North seek to create alternative institutional spaces in order to promote neoliberal policies more effectively, some countries in the South are increasingly skeptical of this version of economic order and are experimenting with alternative versions of legal ordering that do not always sit well with mainstream versions promoted by the North. While we recognize that there are differences in approaches to the investment regimes proposed by countries in the South, we identify commonalities that could function as the founding pillars of an alternative economic order.
Latin America has been a complex laboratory for the development of international investment law. While some governments and non-state actors have remained true to the Latin American tradition of resistance towards the international investment law regime, other governments and actors have sought to accommodate said regime in the region. Consequently, a profusion of theories and doctrines, too often embedded in clashing narratives, has emerged. In Latin America, the practice of international investment law is the vivid amalgamation of the practice of governments sometimes resisting and sometimes welcoming mainstream approaches; the practice of lawyers assisting foreign investors from outside and within the region; and the practice of civil society, indigenous peoples and other actors in their struggle for human rights and sustainable development. Latin America and international investment law describes the complex roles that governments have played vis-à-vis foreign investors and investments; the refreshing but clashing forces that international organizations, corporations, civil society, and indigenous peoples have brought to the field; and the contribution that Latin America has made to the development of the theory and practice of international investment law, notably in fields in which the Latin American experience has been traumatic: human rights and sustainable development. Latin American scholars have been contributing to the theory of international investment law for over a century; resting on the shoulders of true giants, this volume aims at pushing this contribution a little further.
The BRICS in the New International Legal Order on Investment: Reformers or Disruptors is written by international experts with BRICS backgrounds. The book investigates why and how the BRICS countries modernize their approach to the investment treaty regime. The chapters are organized by BRICS countries and discuss whether they can develop a common approach to investment treaties as well as what these countries will bring to the investment treaty regime in the future. The volume provides important perspectives on how the BRICS, an emerging power hub in international society, engage in the international legal order.
Given recent seismic upheavals in the world's money markets, an updated edition of an authoritative, reliable textbook on the international law of foreign investment has rarely been so timely. Sornarajah's classic text surveys how international law has developed to protect foreign investments by multinational actors and to control any misconduct on their part. It analyses treaty-based methods, examining the effectiveness of bilateral and regional investment treaties. It also considers the reverse flow of investments from emerging industrialising powers such as China and Brazil and explores the retreat from market oriented economics to regulatory controls. By offering thought-provoking analysis of not only the law, but related developments in economics and political sciences, Sornarajah gives immediacy and relevance to the discipline. This book is required reading for all postgraduate and undergraduate international law students specialising in the law of foreign investments.
In the past decade, investor-state arbitration has made tremendous gains in both credibility and use. There is now widespread accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Washington Convention”). States have executed more than 2,000 bilateral investment treaties (BITs) defining the terms and conditions under which one (“investor”) state's nationals and companies will invest in the other (“host”) state. Such terms include provisions allowing foreign investors to initiate arbitration proceedings against the host state, and at this point, more than 500 disputes have been submitted to investor-state arbitration. There is, however, one very notable example of a rapidly developing state that has rejected this system of international dispute resolution in favor of nation-level structures. That example is the largely industrialized state of Brazil. Brazil boasts the seventh largest economy in the world, $65 billion in foreign direct investment, and enticing investment opportunities in advance of its hosting of the 2014 World Cup and 2016 Olympic Games. But Brazil does not have a single BIT in force. Brazil's notorious absence from international investment arbitration has been described as the product of the region's recent economic history, coupled with technical and political barriers that have impeded the ratification of BITs in particular. Some commentators have also found that Brazil's failure to enact BITs and its general avoidance of international forums for dispute resolution are largely the result of shifting priorities on the part of the executive branch of the Brazilian government.Those who are most interested in international investment arbitration often present Brazil's choice not to ratify its BITs as problematic and, indeed, as a failure. This label, however, is only used by certain audiences in assessing Brazil's actions. Using Hirschman's theory of exit, voice, and loyalty -- supplemented by procedural justice research and theory -- a different conclusion emerges. The failure of Brazil's executive and legislative branches to reach agreement on BITs represents a story of Brazilian legislators' exit from the product that had been negotiated by the state's diplomats. But this exit also evidences the executive's acknowledgement and even-handed, dignified treatment of the voice expressed by Brazilian legislators. Ultimately, such voice and acknowledgement led to executive and legislative collaboration in the creation of new, unbundled legislation that responded to state concerns while also providing sufficient protection to foreign investors. Such products include: constitutional equal protection for foreign investors, protections for the free flow of capital, double taxation treaties, investment opportunities through privatization and concessions, and arbitration law reforms. For Brazil's domestic constituents and its foreign investors, these alternative approaches to investment protection actually represent superior products that were more responsive than BITs to the needs and interests of the state at that time. Far from representing failure, then, the development of these products represents a success for Brazil's domestic and foreign stakeholders. Perhaps as evidence of this, foreign investment in Brazil continues to be strong. Meanwhile, Brazil's role in foreign investment has evolved as its own multinational corporations increasingly engage in foreign investment. Inevitably, these corporations seek to reduce the risk of their foreign investments. As a result, they may encourage Brazil's executive and legislative branches to take a second look at BITs. As circumstances change, so may the definition of success. Ultimately, the Article urges that Hirschman's theory and the theories and research regarding procedural justice encourage a reconceptualization of Brazil's alleged “failure” in choosing not to ratify the BITs that had been negotiated by its diplomats.
This book examines the relatively recent and under-explored phenomenon of outward foreign direct investment (FDI) from the large emerging market countries, focusing on the four BRIC states (Brazil, Russia, India, and China) and on the services sector meaning primarily telecommunications, finance, and transport. It considers the international legal framework governing FDI, discussing the nature and extent of the bilateral and regional investment treaty commitments undertaken by each of the BRIC states, including their commitments under the WTO General Agreement on Trade in Services, as well as their obligations as members of the International Monetary Fund and the World Bank. Drawing on trends observed in the regulatory approach of these countries to FDI in services, including the observed flow of FDI both to and now from the developing world, the book proposes a multilateral investment treaty aimed at the liberalization and protection of FDI in services. The treaty will capture the emerging equilibrium in global FDI patterns signifying a unified approach to the regulation of foreign investment in the growing services economy by developing and developed economies alike. The treaty will strengthen the legitimacy of investor-state dispute settlement and recognize public interest norms such as environmental protection and human rights as well as allow signatories to retain sovereignty over matters relating to national security and economic stability.