Investimentos internacionais e desenvolvimento em países emergentes: o direito Internacional do investimento nos níveis bilateral, regional e multilateral, na perspectiva dos países emergentes como importadores e recentes exportadores de capital

Abstract

The international regulation of foreign investments comes from a historical process of internationalization of their protection, based on practices and rules applied since the Great Navigations, including the periods of colonialism and imperialism, until the contemporary context after World War II, which characterizes International Investment Law. The former European metropolises, the United States and Japan, are the traditional capital-exporting economies, while the nations that became independent in the 19th in Latin America and the 20th, in Africa and Asia, qualify as capital-importing economies. The 21st century, in turn, launches a new paradigm for International Investment Law by recognizing new capital-exporting nations: the emerging economies. The change in the global economic situation, observed in new groupings such as BRICS and G20, has made it possible to recognize recent capital exporters, even though they maintain a considerable level of imported capital. The change in the paradigm of foreign investor protection, especially since 2015, has taken place on three levels: bilateral, regional and multilateral. In this sense, emerging economies are moving away from the model of rule takers to become rule makers. At the bilateral level, the traditional Bilateral Investment Treaties (BITs) have been replaced by more balanced instruments, the creation of specific models for emerging economies, the denunciation of BITs and a shift towards investment facilitation, as in the case of Brazil's Cooperation and Investment Facilitation Agreements (ACFI). At the regional level, we see the creation of agreements dealing jointly with trade and investment, involving a large number of countries, known as mega agreements. At the multilateral level, the absence of investment agreements, the lack of consensus on finalizing the Doha Round and the blockage of the World Trade Organization's Dispute Settlement Body contribute to the return of protectionist practices by developed countries, the fragmentation of the global economic system, the tendency towards deglobalization and the plurality of treaties. In this sense, the emerging perspective comprises two categories: (i) a cautious integration, via the emerging countries' BIT models, such as China and India; and (ii) non-integration into the system, such as Brazil and South Africa. The thesis aims to critically analyze International Investment Law from the perspective of emerging countries, especially considering Latin America's historical position, neo-colonial structures and the unilateral treatment given to foreign investors, in detriment to the host states.