Michelle Ratton Sanchez Badin

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.

International Trade Regulatory Challenges for Brazil and Some Lessons from the Promotion of Ethanol

Since the 1990s, participation in international trade has been affirmed as a tool for development. Therefore, countries like Brazil have intended so far to increase their international insertion through trade. Ever since, in those twenty years since then, Brazil has experienced a sequence of moments that affirms that direction to its development: from a period of unilateral trade liberalization to a phase of integration into international blocks and negotiations, in the seek for a more structured policy by and for trade. This article takes the Brazilian experience in its effort to promote ethanol as a renewable and competitive energy alternative in the international market. Through programs and support measures employed by the government for decades, agricultural production of sugar cane and the industrial park for its processing were developed and present high level of efficiency and productivity nowadays. In order to promote ethanol in the international trade, it takes a multi-level action from the Brazilian State to overcome the fragmentation of centers responsible for the definition of commercial policies and regulatory structure. Indeed, Brazilian government has been acting in several thematic forums, seeking specific purposes. Its traditional inherent functions have been revisited, as well as the legal and institutional framework set to have them fulfilled. Furthermore, collaboration between government and private sector has been playing a major role, once one seeks to optimize the effectiveness of defined policies and to establish a ‘learning curve’ for both sectors. This case permits the extrapolation of its main characteristics to the Brazilian commercial policy as a whole, once, even if it is directly related to a traditional area for commercial regulation- that is agriculture-, further understanding requires complete review of that classification and of its linkages to the new commercial themes, such as energy and environment.

The WTO and the OECD Rules on Export Credits: A Virtuous Circle? The Example of the Embraer Case and the 2007 Civil Aircraft Understanding

In this paper I focus on the OECD Sector Understanding on Export Credits for Civil Aircraft signed on July 2007, its negotiation and the involvement of Brazil in the restricted group of parties to this understanding. Brazil is the first non-OECD Member part of the arrangement. There were two main reasons for this special invitation: firstly, Embraer, one of the largest Brazilian companies, had become the third largest producer of civil aircraft, since 2004; secondly, in 2004 Brazil was still negotiating with Canada the implementation of the civil aircraft cases, concerning prohibited subsidies, under the World Trade Organization (WTO) dispute settlement proceedings. Based on empirical research, mainly interviews with those involved, this paper intends to identify the reasons for the invitation of Brazil to be part of the 2007-ASU negotiation, and in a second step to explore the peculiarities that came up with that in the WTO and the OECD, as well as to their relationship. The point of departure is the WTO Embraer-Bombardier case, its rulings and its connection with the ASU. As a consequence the first parts of the paper are mainly descriptive of the facts and rulings of both WTO and OECD. In a second moment, the paper tries to explore the consequences for Brazil as a developing country in dealing with both forums and the meaning of its participation in the balance of power on the regulation of export credit issues.

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.