Direito Internacional dos Investimentos e o Brasil: uma perspectiva a partir do padrão de tratamento justo e equitativo

Abstract

The increasing global flow of foreign capitals raises the issue of the regulation of foreign investments at the core of the concerns of International Law. With a multi-layered formal structure, International Investment Law undergoes continuous readjustment and reconstruction. Several theoretical alternatives have been proposed in order to answer many questions concerning the uncertain future of International Investment Law. Brazil has chosen to remain isolated from the international regime regulating foreign investment and this matter remained fully regulated by an untidy mosaic of constitutional and infra-constitutional rules. The growing role of Brazil as a capital-exporter country especially due to the development of the oil and gas industry has led to a recent revision of foreign policy guidelines regarding foreign investment. The decision of negotiating international investment agreements may have several consequences to the domestic legal system. Standing out as one of the key consequences is the interference of the fair and equitable treatment standard in the exercise of regulatory powers by the State. The recurrent allusion to the fair and equitable treatment standard contrasts with the uncertainty about its normative content. Although there may be a theoretical compatibility between the fair and equitable treatment standard and the Brazilian law, the exposure of state measures to creative interpretations of arbitral tribunals may pose a risk to the country, which must carefully evaluate the appropriateness of including a clause on fair and equitable treatment standard in the agreements currently under negotiation.