(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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98 4.2 The example of Brazil: Foreign direct investment without BITs and FTAs For years Brazil has been one of the leading FDI recipient nations among the “emerging countries”, without having ratified one single bilateral investment treaty. 285 Brazil, after becoming a member of the MIGA (the Multilateral Investment Guarantee Agency of the World Bank) in 1990, has signed several bilateral investment treaties, 286 however, so far none of them has been ratified by the Congresso Nacional: Investment agreements, contract-partners of Brazil Argentina, Paraguay, Uruguay: Colonia Protocol on the Reciprocal Promotion and Protection of Investments within MERCOSUR conclusion of treaty ratification Accorded by the Asunción treaty of March 26, 1991, signed January 17, 1994 open Portugal February 9, 1994 open Chile March 22, 1994 open Great Britain July 19, 1994 open Argentina, Paraguay, Uruguay: Buenos Aires Protocol on the Promotion and Protection of Investments Made by Countries that are not Parties to MERCOSUR Accorded by the Asunción treaty of March 26, 1991, signed August 5, 1994 open Switzerland November 11, 1994 open France March 21, 1995 open Finland March 28, 1995 open Italy April 3, 1995 open Denmark May 4, 1995 open Venezuela July 4, 1995 open South-Korea September 1, 1995 open Germany September 21, 1995 open Source: Own compilation. 285 Brazil has ratified the UN agreement on foreign arbitration verdicts of June 10, 1958, as well as the Panama agreement of 1975, the Inter-American Convention on International Commerce Arbitration, where the respective national chambers of commerce are represented. 286 In Portuguese: “acordos bilaterais de promoção e proteção recíproca de investimentos”.
The MERCOSUR agreement, “Colonia Protocol on the Reciprocal Promotion and Protection of Investments within MERCOSUR”, should regulate the mutual investment conditions for foreign investors from MERCOSUR countries within the four MERCOSUR states. As a regional FTA the therein contained regulations do not have any effect on non-MERCOSUR states. The MFN clause does not extend its validity to third parties, as with bilateral investment treaties. The “Buenos Aires Protocol on the Promotion and Protection of Investments Made by Countries That are not Parties to MERCOSUR” from August 5, 1995, however, has a special position within these treaties: Being a regional agreement on investment, it treats the role of third parties and can therefore, after its ratification, have legal consequences for other Brazilian agreements or those of other MERCO- SUR states- by, e.g., causing a chain reaction in the tightly integrated net of existing investment agreements. Therefore, a study commissioned by the Brazilian National Congress recommended, that if bilateral investment treaties were to be ratified, then this agreement should be ratified first, so that its provisions can have legal effects on all following agreements. 287 All of these agreements follow the scheme of modern bilateral investment agreements and contain dispute settlement mechanisms, also for investor-to-state disputes and the party taking legal action can freely choose the court of jurisdiction. One exception to this is the MERCOSUR-protocol, which also concedes the investor the right to choose, but the other parties (the affected state) can reject this. All agreements explicitly take the principles of MFN and NT as an orientation, and regulate the unrestricted capital and profit transfer, which cannot be obstructed by any national regulations: In the case of severe difficulties with its balance of payments the Brazilian government would be prohibited from taking any action to steer or influence the crisis, due to the international treaty. The agreement with Switzerland, which is signed, but not yet ratified, goes further than other agreements: It is the only agreement which explicitly states that compensation payments have to be made in freely convertible currency. According to a study commissioned by the Brazilian Congress this could be in contradiction to the 287 Déborah Bithiah de Azevedo: Os acordos para a promoção e a proteção recíproca de investimentos assinados pelo Brasil, Consultoria Legislativa, Câmara dos Deputados, May 2001, p. 5. 99
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Christian Russau Enforcement of int
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Preface Since the end of 1999 the C
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If the “Interregional Association
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8 Chapter 5: The enforcement of int
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10 1.1 Negotiations of the “Inter
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12 A similar agreement of the so-ca
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14 tute in the eyes of many countri
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16 amaraty, where the FTAA-negotiat
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18 free trade agreement between the
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20 at the UN Millenium Summit to ha
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22 on the possibility of a unilater
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24 tual contradictions between the
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26 fired. The workers union OGB-L,
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28 policy and EU development policy
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Chapter 2: Foreign direct investmen
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50% in 2002 as compared to the prev
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The reasons for propagating this co
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• according to a study conducted
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promotion of domestic demand, in or
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2.2 International Agreements and Tr
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2.3 The World Trade Organization WT
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• trade and investment • compet
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(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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