A difusão da cláusula arbitral investidor-estado em Tratados Bilaterais de investimento (BITs): análise comparada entre Brasil e Argentina (1994-2021)

Abstract

How can one explain different degrees of similarity and convergence when analyzing adherence to international economic norms by the nations of the world? This study utilizes the theoretical framework of Policy Diffusion to investigate the influence of its mechanisms in the adoption of different models of dispute settlement between Investor and State in Bilateral Investment Treaties (BTIs), signed by Argentina and Brazil, looking particularly at the energy sector in both nations. This thesis’ principal objective is to fill a gap, empirically, on the dissemination of permissive clauses in arbitration processes between foreign investors and host States in BTIs, considering the context of international economic competition. The methodology used is qualitative in nature, and, within it, the method applied was comparative analysis of documents, macroeconomic data, and indices, such as WJP Rule of Law index. Following a longitudinal analysis of the global context, and considering the influence of domestic factors on the adherence to public international policies in the two nations, the adoption of counterintuitive positions was observed. Contrary to Argentina, however, Brazil rejected the widespread policy of investor-state, and since 2015 it has distanced its strategies from WC, considering the establishment of a new set of policies for dispute settlement (ACFIs). The results found suggest that the mechanism of competition was the main responsible for pushing the two countries toward the ratification of the Washington Convention – WC, which is a process that has not yet been finalized by Brazil. As it turns out, other mechanisms of policy diffusion were examined in each country, concurrently, during the period analyzed, such as emulation and learning. In the case of Argentina, for instance, the occurrence of coercion is also discussed. The conclusion suggests that institutional, political and economic factors have placed Brazil one step ahead of its South American peers as an attractive pole to external investors. Hence, the country does not feel competitive pressure from its neighbors. This may be one of the answers that explains Brazil’s distinct position in relation to Argentina, which sets it apart from the BITs with a dispute resolution clauses involving international investor-state arbitration.