O regimento internacional dos investimentos - sistemas regional, multilateral, setorial e bilateral (balanço da década de 1990, seguido do estudo de dois casos: o Mercosul e o projeto da ALCA) / The international regime on foreign investments

AUTOR(ES)
DATA DE PUBLICAÇÃO

2003

RESUMO

The purpose of this work is to analyze the changes introduced in the international legal regime applicable to foreign investment in the last decade. After an historical study on the development of this regime, the four trends that shaped the elaboration of these rules during this period are examined. Firstly, the tendency to the creation of international regional regimes -like NAFTA, Mercosur, ASEAN and APECs special rules on investment- is analyzed. Secondly, the several attempts to establish a multilateral regime on foreign investment -as evidenced by the negotiation of the MAL in the OECD, and of the TRIMs, in the WTO, as well as the edition of the Guidelines on Foreign Direct Investment by the Word Bank- are reviewed. In the third place, the international rules applicable to investments in special sectors, as is the case of the Energy Chart Treaty, are focused. Finally, the increase in number of the bilateral treaties is examined. This study takes into account the international jurisprudence, mainly the awards rendered by the lCSID. This exam is followed by the study of two regional regimes that affect Brazilian interests: the Mercosur and the FTAA. If compared with the previous regimes, the one that prevailed in the nineties appears to be more concerned with both the flexibility of the rules on the flow of capitals and the increase of earnings. Concerns about rules on the investment protection have vanished for two main reasons. Initially, the availability of insurance and guaranties against political risks besides minimizing the risks presented by any governmental interference on the investors control over its investment, also contributes to make issues on the value of indemnities irrelevant. In the second place, the majority of the developing countries not just endorsed neo-liberal policies, which made governmental restrictive postures on foreign investment difficult, but have started to compete against each other to attract foreign capitals. The International Law on Investments turned into a system with few gaps, based rather on written treaties than on customary law. Crucial issues of the past few decades, like these related to the Calvo doctrine or to indemnities criteria, were solved by treaties and arbitral decisions. Not only did the jurisprudence become abundant, but also consolidated conservative views on the matter. Objectively, very little remained of the fiery speech on the NEIO. The dual investment and development was undone and the previous system of the International Law of Development collapsed. This collapse was caused by different reasons. The most determining, however, is the fact that the International Law on Investment, based before on customary roles and precariously settled by UNs resolutions, were relocated to different fora, like the World Bank. The concern with development switched from an important chapter of the International Economic Law to Human Rightsdomain. Amidst the four trends pointed out in this work, apparently just one will be discontinued in the near future: the sectorial treatment of foreign investment. Nonetheless, the others will continue to be present: there is no evidence of reflux in the signing of bilateral treaties; the search for a multilateral regime will continue, as shown in the commitment made in the WTO Conference of Doha, in 2001, fixing for 2005 the signing of the agreement on TRIMs; and finally, the negotiation of FTAA, including dispositions on investments, indicates that the regional tendency will remain.

ASSUNTO(S)

bits foreign investment icsid alca mai international economic law nafta international law on investments direito internacional investimento estrangeiro fdi merocsur mercosul trims direito economico internacional

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