Cláusula arbitral investidor-Estado e a responsabilização das multinacionais por danos ambientais: uma rota viável ou uma mera utopia?

Abstract

International investment arbitrage has been used by foreign and multinational investors to request compensation from States because of punitive or regulatory measures that, in some way, affect their assets. Sometimes such state actions have the objective of safeguarding the environment, nevertheless, when they reach the arbitral tribunals they are transformed into million dollar condemnations against the States. Context in which these entities are defeated in about 61% of disputes. At this juncture, investment arbitrage has been criticized as being a mechanism that only benefits investors, without offering any advantage to the nations receiving the investments. In spite of this, it is known that one of the main merits of arbitration is to be a flexible mechanism, which gives the parties the power to define procedural rules. Having observed this dialectic between the inherent flexibility of arbitration and the practical scenario in which the procedure has benefited only one party, it is questioned whether international investment arbitration could not be used in the opposite way of which it has been, making it possible to hold environmental damages, not infrequently occasioned by the execution of their investment. To answer this question, this work starts from a bibliographical review, analysis of primary sources of law, as well as practical cases to, through a deductive method, to conclude if investment arbitrage can be used to hold multinationals responsible for environmental damages. Based on this study, it was observed that there is no peremptive prohibition of the use of this institute with a view to rendering multinational companies liable for environmental damages. However, in order to ensure greater legal certainty for this purpose, certain aspects of the procedure should already be determined in the investor-state arbitration clause.