Direito internacional dos investimentos e governança: a capacidade regulatória dos Estados conforme tribunais arbitrais de tratados de investimentos

• Autor(a) principal: Costa Júnior, Orlando José Guterres
• Data de Publicação: 2015
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9696
• topic: Investment arbiration; Investment treaties; Global governance; Public interest; Arbitragens de investimentos; Tratados de investimentos; Governança global; Interesse público; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO INTERNACIONAL PUBLICO

The currently research aims to discuss how investment treaty arbitrations consider the regulatory capacity of host States exercised in the public interest. Investment treaty arbitrations interpret the provisions contained in International Investment Agreements such as BITs and other international treaties with provisions on protection of investors, and while it declares if a State breached its obligation under the IIA, due to a claim presented by an investor, the arbitral tribunal not only solves a conflict of interest, but also exercises public authority when it develops the standards of protection in a public global arena. In this situation, investment treaty tribunals work as a global governance mechanism due to two factors: a) the possibility that the court may issue an opinion on the legality of a state act; b) the construction of de facto precedents, but with the possibility to influence future decisions. Through the combination of these factors, the investment treaty arbitrations review state polices adopted to meet the public interest, which is why it is required to investigate how these governance mechanisms address policies adopted by States in the exercise of its regulatory capacaity in the public interest. From the analysis of the merits of decisions in cases of indirect expropriation in the oil and gas latin-american industry, it was observed that the tribunals diverge between two positions, a majority position that considers only the effect of the measure to the investor without taking into account the public interest involved, and another approach, less ortodoxal, which takes into account the investor's interests and the public interest that justified the state conduct to balance them, but still without a definitive criteria for the exercise of a proportionality test. In regard of the cases against Argentina, which was in a serious economic crisis, it was observed that the public interest was mainly analyzed from a narrow perspective which penalized the Argentine state. Given this situation, it were presented new proposals on arbitration as a global governance mechanism, looking forward to give more legitimacy to the exercise of public authority by proportionality test exercises and deference to the policies adopted by the State in the public interest. Its also shown how states reacted to the regulatory powers of international investment tribunais. While some states have elaborated new types of investment treaties, with clear intention to balance the protection to foreign investors with regulatory space to satisfy the public interest, others states have denounced the Washington Convention and their BITs in reproval to the international law investments regime.