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Although it has been ranked the fourth largest destination for foreign direct investment (FDI) in the world, Brazil has not enacted specific legislation to promote or protect FDI. Nor are there any investment treaties in force, so Brazilian companies investing abroad act without international legal protection. Considering the country’s widely acclaimed “arrival” into the small family of the world’s major trading nations, the question of Brazil’s entry in the international FDI system – not only as an incentive to the inflow of foreign investment, but also to protect the investments of its national companies abroad – has become a hotly debated issue. This timely book, with its incisive reports on all important aspects of the matter, tackle this subject with prodigious knowledge and insight. With detailed analysis of investment-related legislation, including different legal and regulatory models, as well the examination of peculiarities of highly specialized industries present in Brazil, the authors cover such aspects as the following:
- investment in infrastructure, social areas such as education and health, commodities, and the oil and gas sector;
- to what extent expropriation under Brazilian law resembles the international standard of protection;
- political implications of Brazil’s FDI stance with regard to the balance of interest within the Latin American region;
- foreign investment in light of the principle of national treatment;
- enforceability of arbitration agreements vis-à-vis the state, state entities, and state-owned companies;
- conflicts of jurisdiction between state courts and arbitral tribunals;
- arbitration involving companies in liquidation and reorganization proceedings;
- public–partnership contracts; and
- investment-related aspects of human rights and intellectual property rights.
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.
List of Editors and Contributors. Forewords. Preface. Acknowledgements. PART I Political Perceptions and Procedural Standards of Investment Protection in Brazil. Chapter 1Investment Arbitration in Brazil: The Landscape of Investment Arbitration in Brazil and Why Brazil Should Become a More Important Player in the Investment Arbitration Arena Paulo Macedo Garcia Neto. Chapter 2 ICSID in Latin America: Where Does Brazil Stand? Daniel de Andrade Levy & Rodrigo Moreira. Chapter 3 Two Sides of the Same Coin: To What Extent Is Arbitration with the Brazilian Administration Similar to Investment-Treaty Arbitration? Daniel M.C. Barbosa & Pedro Martini. Chapter 4 International Standards of Protection of Foreign Investment under Customary International Law Adriana Noemi Pucci. PART II Substantive Standards of Investment Protection in Brazil. Chapter 5 Investment Treaties, Foreign Investment and Brazilian Law: The Magic of Reality Gustavo Fernandes de Andrade & Gustavo Henrique Justino de Oliveira. Chapter 6 Expropriation in Brazilian Law: An International Standard? Daniel Tavela Luís & Luis Antonio Gonçalves de Andrade. Chapter 7The Brazilian Legal Approach to Foreign Investment in Light of the Principle of National Treatment under Investment Treaties Ana Gerdau de Borja, Maria da Graça de Almeida Prado & Priscila Knoll Aymone. Chapter 8 Investment Arbitration and Public-Private Partnership Agreements in Brazil Eliana Baraldi & Jorge Vargas Neto . Chapter 9 Arbitration and Energy Law Rafael Villar Gagliardi, Camila Biral Vieira da Cunha & Daniel Hossni Ribeiro do Valle. Chapter 10 Investment Protection in the Brazilian Banking Sector Bruno Balduccini & Amina Akram. Chapter 11 The Brazilian Option in International Investment Law: Democratic Institutions, Human Rights and the Protection of Foreign Investment Henrique Rabello de Carvalho. Chapter 12 Intellectual Property Rights in the Context of Investment Arbitration: A Brazilian Perspective Karina Haidar Müller & Nathalia Mazzonetto. APPENDIX. Rules and Legislation. Bibliography. Index
“It is of very great interest for the international arbitration community. Not only by the quality of its contributors, but also because it poses the right questions at the right time.” – From the Foreword by Mr. Yves Derains
“A praiseworthy initiative by the CBAr Investment Arbitration Group and, particularly, by its coordinators.” – From the Foreword by Professor Arnoldo Wald
“The authors of the present publication have competently accomplished the task of writing about the subject, providing the reader with quality material, thus bringing an important and necessary contribution to those who study and act in the field.” – From the Foreword by Professor Luiz Olavo Baptista
