Fabio Morosini

Reconceptualizing International Investment Law from Global South

This book argues that the current reform in investment regulation is part of a broader attempt to transform the international economic order. Countries in the North and South are currently rethinking how economic order ought to be constituted in order to advance their national interests and preferred economic orientation. While some countries in the North seek to create alternative institutional spaces in order to promote neoliberal policies more effectively, some countries in the South are increasingly skeptical about this version of economic order and are experimenting with alternative versions of legal order that do not always sit well with mainstream versions promoted by the North. While we recognize that there are differences in approaches to the investment regimes proposed by countries in the South, we identify commonalities that could function as the founding pillars of an alternative economic order. Unlike investment regulation currently being produced in the North that presses for the maintenance of the status quo and introduces changes to the system mostly focused on procedure, some countries in the South are attempting to reconceptualize investment regulation. They contest the unbalanced foundations of investment regulation that overprotects investors at the expense of the home state’s regulatory space. In turn, developing countries try to create an economic order that, while recognizing the importance of FDI for their economic development, seeks to preserve state autonomy to regulate in the public interest. This book showcases selected countries in the Global South where investment law reform is current underway, and explores the potential and limitations of an alternative order coming from the South.

The MERCOSUR Trade and Environment Linkage Debate: The Disputes over Trade in Retreaded Tires

Brazil is currently immersed in the project of building a new common market, known as MERCOSUR, with its neighbours Argentina, Uruguay, and Paraguay. That project is largely based on the assumption that increased regional trade and harmonization of environmental standards will be beneficial for the environment. However, these assumptions have been challenged after recent Brazilian efforts to regulate the environmental and health risks associated with retreaded tire imports. Despite the protests of environmentalists, MERCOSUR tribunals have now issued two separate decisions finding that the Brazilian measures violate international trade rules. This article examines the MERCOSUR framework on the relationship between trade liberalization and environmental protection and examines how this framework was applied by MERCOSUR tribunals with respect to the two disputes concerning trade in retreaded tires.

A REGULAÇÃO DE INVESTIMENTO ENTRE BRASIL E ANGOLA: CONDICIONANTES INTERNOS, CONTEXTO INTERNACIONAL E A CONSTRUÇÃO DO ACORDO DE COOPERAÇÃO E FACILITAÇÃO DE INVESTIMENTOS (ACFI)

O objetivo deste artigo e contextualizar o cenario regulatorio relativo a investimentos estrangeiros, na Angola e no Brasil, contrastando os movimentos divergentes desses dois paises na abordagem dos acordos de investimento durante os anos 1990 e inicio dos 2000, e analisando como os posicionamentos de Brasil e Angola acabaram por se reconciliar com a assinatura do ACFI, no inicio de 2015.

The Regulation of Corporate Bribery in Brazil

This note explains the new legal initiatives in the regulation of private corporate bribery in Brazil. Corruption is an endemic problem in many States, including ones with an emerging economy such as Brazil. The development and implementation of anticorruption policies necessarily goes through Klitgaard’s “Principal-Agent-Client” model. According to this theory, it is important to create a system of punishment and incentive that focuses also on the “client,” the private sector, a subject often forgotten in the drafting of anticorruption laws. This note argues that previous Brazilian corruption laws did not foresee a consistent legal framework capable of preventing and punishing companies’ use of bribery. In this scenario, one can observe that Brazil began a process of institutional change over the course of recent years, which consisted of developing new anti-corruption mechanisms. The creation of The Office of Comptroller General (Controladoria Geral da Uniao), a federal government organ specialized in corruption control, is a landmark. The implementation of Law No. 12.846, which will enter into force in 2014, shows great promise. The new law predicts harsher punishments to companies involved in bribery. One interesting aspect is the creation of incentive mechanisms directed at cooperation with government inspection, leniency agreements and a provision to decrease punishment when compliance programs are implemented. Although in order for it to be put into practice, the latter demands a more precise definition. The authors are optimistic about this new initiative and await further developments.

The Brazilian Approach to its South-South Trade and Investment Relations: The Case of Angola

South-South trade and investment relations have grown considerably over the past years. This increase in economic transactions have been seen as a positive advancement towards the development of Southern countries economies, especially in what concerns a reduction of their dependence to central economies. However, what it is yet not clear is the role of law in this process. How are Southern and developing economies legally stimulating and increasing their economic ties? What are the main regulatory tools used by those countries? To what extent are they different from those that have coordinated North-South relations? This paper takes the case of Angola and Brazil relations to draw on these analyses, and it focuses on the following elementary question: What are the main regulatory characteristics of Brazil and Angola trade and investment relations? We will address this case analysis using empirical research methods, including analysis of aggregated data, primary and secondary documents, and interviews with government representatives and business community.

Corrupção e Investimento Estrangeiro Direto

A presente pesquisa possui como problema central de investigacaoa analise do impacto da corrupcao no fluxo de investimentoestrangeiro direto (IED). A primeira parte da pesquisa estuda o papeldo IED na economia globalizada; a segunda tem como objetivo analisaras consequencias da corrupcao em operacoes envolvendo IED. Paratanto, realizou-se uma revisao bibliografica sobre o tema. A etapa dainvestigacao aponta que a percepcao da corrupcao pode ser um fatorcondicionante para o ingresso de IED em um determinado pais.

O GOVERNO DE DILMA ROUSSEFF E AS NEGOCIAÇÕES COMERCIAIS MULTILATERAIS: RETRAÇÃO SEM DESISTÊNCIA

In October 2012, based on a decision of Mercosur, the Brazilian government raised import duties on more than one hundred products. This article argues that the current Brazilian administration remains interested in multilateral trade negotiations, despite competing interpretations that the recent measure indicates thatBrazilabandoned the Doha Development Round of the World Trade Organization.

THE IMPLEMENTATION OF INTERNATIONAL ANTI-CORRUPTION LAW IN BUSINESS: LEGAL CONTROL OF CORRUPTION DIRECTED TO TRANSNATIONAL CORPORATIONS

Lately, corruption has become a matter of international concern. A new approach proposes the development of anti-corruption policies directed to the private sector, especially transnational corporations. The idea is to implement mechanisms that attack the supply side of corruption. This research aims to analyze the evolution of international mechanisms for control of corruption directed to transnational corporations. The focus will be on the international treaties. The goal is to identify the existence of an international anti-corruption regime. This research is exploratory in nature. It is an introduction to the subject, especially for policymakers from countries with emerging economies that are not yet familiar with the study on the subject. It was decided to conduct a bibliographic review, using interdisciplinary sources. Some preliminary conclusions were reached. States must intervene in this process by creating disincentives for the realization of corrupt practices by the business sector, especially in relation to transnational corporations. International treaties do not have the power to automatically implement anti-corruption mechanisms, requiring legislative reforms on the part of the States Parties. In this context, the evaluation systems play an important role in compelling nations to take action. As a result, there is a “regulatory race to the top” of anti-corruption norms, extremely beneficial for the international community. With the omnipresence of the corruption control in the world, a good alternative for emerging economies, like Brazil, is implementing anti-corruption measures provided by in international law, otherwise they may suffer losses in their business activities.