Acordos internacionais de investimentos no Brasil (ACFI's) e desenvolvimento sustentável a dinâmica relacional investidor-Estado à luz do enfoque da justiça relacional

Abstract

Historically, bilateral investment treaties (BITs), also known as agreements for the promotion and reciprocal protection of investments (APPRIs), were conceived on the basis of a strongly asymmetrical relationship between the contracting parties (the investor State and the host State), assigning unilateral obligations only to one side—the host States, generally poor or developing countries—while granting broad guarantees to investors without equivalent responsibilities. This asymmetrical relationship persists, generating above all negative socio-environmental impacts in investment-receiving countries and serious inconsistencies with the imperative of global sustainability. Given the structural limitations of the traditional investment treaty regime, alternative proposals have emerged with the aim of reconciling the protection of foreign investment with international commitments to sustainable development. Among these, the Brazilian model of agreement, known as the Cooperation and Facilitation Investment Agreement (ACFI), stands out for introducing normative and institutional innovations, such as clauses directed toward socio-environmental safeguards and the promotion of cooperative governance between the contracting States. This research, conducted under an international joint supervision agreement between the University of Málaga (Spain) and the Federal University of Paraíba (Brazil), aimed primarily to investigate the relationship between investors and host States, considering the complex structural asymmetry between them, in order to better balance the binomial of investment protection and the promotion of sustainable development. A recent movement toward the reform of the international investment regime can be observed, which requires, among other changes, more balanced treaties aligned with the objectives and targets of the 2030 Agenda and with sustainable development in host countries. The thesis addressed the following research problem: how has the investor–State relationship been structured with regard to the promotion of sustainable development? And to what extent are the ACFIs prepared to foster investments in the spirit of the SDGs? To test the research hypothesis, the study employed the methodological framework of relational justice, which, based on its three-dimensional structure—institutionality, reciprocity, and sociality—provided a clearer and more critical understanding of the relational dynamics between investors and States. This thesis supported the argument that such a relationship presents “justice gaps”, particularly regarding the dimension of reciprocity, and therefore needs to be (re)oriented to foster a cycle of cooperation sustained by good faith and mutual trust between the parties. The Brazilian model, despite its degree of innovation, only partially responded to the calls for the elaboration of treaties consistent with the SDGs. It remains necessary to monitor and evaluate the implementation of these agreements on a case-by-case basis, ensuring that Brazil, in practice, promotes shared development without neo-imperialist ambitions. The thesis was structured as a qualitative study, grounded in the analytical assessment of primary sources—such as the ACFIs themselves and data from international organizations specialized in the subject— alongside secondary sources based on national and international legal scholarship.