Littérature scientifique sur le sujet « The Cooperation and Facilitation Investment Agreement (CFIAs) »

The economic performance of a country, in the era of a globalized economy and its value chains, is strongly affected by foreign investments. The regulation of this cross-border capital flow through international instruments negotiated and celebrated to facilitate, boost and protect foreign investments demonstrates the potential of these instruments in shaping a responsible and diligent insertion of foreign investments in the host country. In Brazil, the investment agreements have been, in the recent years, negotiated through the so-called Cooperation and Facilitation Investment Agreements (CFIAs). So why not use this important mechanism to build a more efficient system? It urges that International Investment Law is brought into this debate, leading the way to incorporating socially responsible corporate conducts into the productive economic process by both States and investing economic agents. This study seeks, therefore, to evaluate Responsible Business Conduct in its interrelation with investment mechanisms that can, at once, attract and facilitate investment and also promote economic and social development. Key words: foreign investment; CFIAs; responsible business conduct; economic and social development.

Brazil only recently joined the collection of states that have adopted international investment agreements (IIAs), but in doing so it developed a noteworthy approach in the form of the Cooperation and Facilitation Investment Agreement (CFIA). In this essay, we explore the characteristics and merits of this particular treaty model, making three points: First, the CFIA exhibits unique features that set it apart from traditional bilateral investment treaties (BITs), including the state-to-state management of investment relations and an emphasis on investment facilitation rather than investment protection. Second, the CFIA displays a degree of “interoperability” that has made it possible for Brazilian partners to sign these agreements while simultaneously holding BIT portfolios, despite significant differences between the two approaches. Finally, one of the CFIA's key features—that of investment facilitation—is a promising basis for reform in multilateral settings such as the World Trade Organization (WTO). In short, we believe that the CFIA offers an innovative and attractive option for states looking to supplement or revise traditional BITs, both bilaterally and multilaterally.

In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil’s cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary from convergence to divergence in order to interpret Latin American countries’ position in the existing investor-State dispute settlement (ISDS) system and reveal the role that the sub-continent can play in the future design of ISDS.

Abstract This article assesses the contribution of Brazil’s new bilateral treaties on investment, labelled Cooperation and Investment Facilitation Agreements (CIFAs), to the international legal framework for transnational investment. With its CIFAs, nine of which were concluded since 2015, Brazil offers an innovative model of International Investment Agreement (IIA) which does not contain investor-state dispute settlement (ISDS). Instead, CIFAs establish a system that combines dispute prevention mechanisms, creating institutions to ensure continued communication and foster cooperation, and state-to-state arbitration (inspired by dispute settlement provisions common in trade agreements and codified in the World Trade Organization’s Dispute Settlement Understanding). Like recent initiatives put forward by India and the European Union, CIFAs aim not only to regulate bilateral relations but also to positively influence the current debates relating to the reform of the international investment regime. Whether they will become an alternative to the current ISDS-dominated framework will be determined by practice.

AbstractIn the past few years, there has been a surge in lawsuits against the mechanism for resolving international investment disputes through the Investors State Dispute Settlement (ISDS) forum proposed by foreign investors who are host states, including Indonesia. Most of the claims are caused by the policies of the host country which are intended to protect the basic rights of the people such as the right to health, the right to a healthy environment, taxes, as well as the minimum standard of wages for workers. This policy provides a loss for foreign investors and is considered a violation of the Bilateral Investment Treaty (BIT). BIT is often recognized to be detrimental to Indonesia, because it can disrupt the sovereignty of the country, especially when dealing with international disputes with foreign investors. This study uses a comparative juridical approach, comparing the BIT model in Indonesia with Brazil, namely Cooperation and Investment Facilitation Agreement (CIFA). Brazil was chosen because it succeeds to reform its investment regime, specifically on its BITs. The results obtained were that Indonesia had to change several provisions in its BITs, which has been regulated CIFA provisions in Brazil, which is not member of the ICSID Convention.Keywords: BIT, CIFA, Investor State Dispute Settlement. AbstrakBeberapa tahun terakhir, ada lonjakan tuntutan hukum terhadap mekanisme penyelesaian sengketa investasi internasional melalui Investor State Dispute Settlement (ISDS) forum yang diusulkan oleh investor asing yang menjadi host states, termasuk Indonesia. Sebagian besar klaim disebabkan oleh kebijakan negara tuan rumah yang dimaksudkan untuk melindungi hak-hak dasar masyarakatnya seperti hak atas kesehatan, hak atas lingkungan yang sehat, pajak, juga standar minimum upah pekerja. Kebijakan ini memberikan kerugian bagi investor asing dan dianggap sebagai pelanggaran Bilateral Investment Treaty (BIT). BIT seringkali dianggap merugikan bagi Indonesia, karena dapat mengganggu kedaulatan negara, khususnya ketika berhadapan dengan sengketa internasional dengan investor asing. Penelitian ini menggunakan pendekatan yuridis normatif dengan metode perbandingan, yaitu dengan membandingkan model BIT di Indonesia dengan Brazilia, yaitu Cooperation and Investment Facilitation Agreement (CIFA). Brazil dipilih karena merupakan negara yang berhasil melakukan reformasi terhadap rezim investasinya, khususnya pada BIT. Hasil yang diperoleh adalah bahwa Indonesia harus merubah beberapa ketentuan dalam BITs nya, seperti yang terkadung dalam CIFA di Brazil, yang bukan merupakan negara anggota dari Konvensi ICSID. Kata Kunci: BIT, CIFA, Penyelesaian Sengketa Investor-Negara

Regional integration in South Asia remains a distant priority for South Asian Association for Regional Cooperation countries. In the area of services, this region offers a great potential. This article aims to examine the opportunities that exist in services and analyses the constraints that impede regional integration in services in South Asia. It highlights the gamut of scope and benefits that can be accrued from this regional integration in services provided certain constraints such as regulatory, infrastructural, institutional and business-related constraints are addressed adequately. The article argues that the region throws up several political and economic challenges which merit immediate attention to further the cause of integration of services. It identifies intraregional mobility, trade facilitation and investment opportunities as the key drivers of regional integration. Sectors such as tourism and health care have huge potential. Intervention from governments of all member countries in specific sectors like tourism is crucial to realize the goal. The article argues for an open, broad-based, flexible regional services agreement, which takes a liberal approach to services integration. It is important that regulatory harmonization, liberal investment policies, willingness towards free movement of natural persons and political will of high order are encouraged to seek such integration in services.

The present paper discusses several new trends in the global trade such as digitalization of trade, regional trade agreements and the emergence of new global players. Based on theoretical research and the study of the available secondary statistical data it analyzes how trade policy can address these changes under the existing world trading system. Trade rules underlying the traditional trading system are still applicable under increasing digital trade and enhanced bilateral and regional trade integration. However, WTO Agreement has nothing to do with those barriers of trade that go beyond traditional trade measures and are very acute for the developing countries. They involve access to the Internet and other telecommunication infrastructure, weak formal institutions and legal protection, lack of awareness about the potential benefits and opportunities in digital trade and lack of IT literacy. In order to overcome these barriers developing countries should incorporate trade policy as a component of deep economic reforms. The pace of development of the multilateral trading rules is slower than required by increasingly flexible business models. Therefore, countries try to find solutions at the bilateral and plurilateral levels. For instance, the EU develops regulations under Digital Single Market as well as within its bilateral trade agreements with non-member states. Georgia is implementing digital economy regulations in accordance to its DCFTA with the EU. Access to information and communication technologies is essential to be engaged in digital trade. For developing countries investments in digital infrastructure is an important policy issue, while developed countries are more focused on balanced trade rules, which ensure the development of digital trade, on the one hand and security and data protection, on the other. Contemporary trade policy goes beyond regulation based on classical trade instruments. It encompasses regulation within regional trade and investment agreements, technical standards and other behind-the-border measures, regulation of services and intellectual property markets and support for sustainable development goals, etc. A large part of the contemporary regional trade agreements covers all these areas. The development of bilateral and regional cooperation by encouraging deep integration can be discussed as an effort to overcome inflexibilities of the multilateral system. Regional integration enables countries to develop selective approach towards their trade partners and maintain certain degree of autonomy by applying different trade rules towards different partners. Elimination of behind the border barriers and enhanced regulatory harmonization leads to reduced trade costs, but it also leads to race to the bottom in regulatory facilitation what might be detrimental to the national policy goals. The effects of deep economic integration cannot be assessed based on the traditional approach of trade creation and trade diversion, because integration as an institutional process affects not only trade flows but also economic and institutional development levels of the countries. Deep regional integration reduces institutional differences within regions and increases them across regions. Besides it, the increasing role of BRICs countries in international trade leads to greater diversity of actors in the world market. New global players ask for greater voice in the process of reforming trade rules. Therefore, global trade rules should reflect the diversity that comes from changes in the patterns as well as the main players of the world market.

The present paper discusses several new trends in the global trade such as digitalization of trade, regional trade agreements and the emergence of new global players. Based on theoretical research and the study of the available secondary statistical data it analyzes how trade policy can address these changes under the existing world trading system. Trade rules underlying the traditional trading system are still applicable under increasing digital trade and enhanced bilateral and regional trade integration. However, WTO Agreement has nothing to do with those barriers of trade that go beyond traditional trade measures and are very acute for the developing countries. They involve access to the Internet and other telecommunication infrastructure, weak formal institutions and legal protection, lack of awareness about the potential benefits and opportunities in digital trade and lack of IT literacy. In order to overcome these barriers developing countries should incorporate trade policy as a component of deep economic reforms. The pace of development of the multilateral trading rules is slower than required by increasingly flexible business models. Therefore, countries try to find solutions at the bilateral and plurilateral levels. For instance, the EU develops regulations under Digital Single Market as well as within its bilateral trade agreements with non-member states. Georgia is implementing digital economy regulations in accordance to its DCFTA with the EU. Access to information and communication technologies is essential to be engaged in digital trade. For developing countries investments in digital infrastructure is an important policy issue, while developed countries are more focused on balanced trade rules, which ensure the development of digital trade, on the one hand and security and data protection, on the other. Contemporary trade policy goes beyond regulation based on classical trade instruments. It encompasses regulation within regional trade and investment agreements, technical standards and other behind-the-border measures, regulation of services and intellectual property markets and support for sustainable development goals, etc. A large part of the contemporary regional trade agreements covers all these areas. The development of bilateral and regional cooperation by encouraging deep integration can be discussed as an effort to overcome inflexibilities of the multilateral system. Regional integration enables countries to develop selective approach towards their trade partners and maintain certain degree of autonomy by applying different trade rules towards different partners. Elimination of behind the border barriers and enhanced regulatory harmonization leads to reduced trade costs, but it also leads to race to the bottom in regulatory facilitation what might be detrimental to the national policy goals. The effects of deep economic integration cannot be assessed based on the traditional approach of trade creation and trade diversion, because integration as an institutional process affects not only trade flows but also economic and institutional development levels of the countries. Deep regional integration reduces institutional differences within regions and increases them across regions. Besides it, the increasing role of BRICs countries in international trade leads to greater diversity of actors in the world market. New global players ask for greater voice in the process of reforming trade rules. Therefore, global trade rules should reflect the diversity that comes from changes in the patterns as well as the main players of the world market.

A regulamentação internacional dos investimentos passa por um contexto de mudanças e, inserido nesse âmbito, encontra -se o Brasil participando ativamente. A mudança de posição brasileira quanto ao regime regulatório dos investimentos será objeto desta dissertação, bem como se o método de solução de controvérsias adotado nos novos acordos brasileiros estimula a negociação entre as partes, em aplicação dos preceitos da teoria da sombra do direito. A análise iniciou-se com a apresentação do regime de proteção internacional dos investimentos e sua evolução e, em seguida, foi descrita a posição do Brasil, que apesar de resistente, tentou adentrar aos acordos de investimento na década de 1990, sem sucesso. Foi demonstrada a atual mudança de paradigma brasileiro, de não mais apenas receptor de investimentos para também investidor e a criação dos Acordos de Cooperação e Facilitação de Investimento que, só em 2015, já foram assinados com 5 países. Descritos o contexto de negociação e as cláusulas materiais do novo acordo, examinou-se os sistemas de solução de controvérsia sobre investimentos existentes, com ênfase na via jurisdicional, pela arbitragem investidor-Estado, consideradas as principais regras e instituições aplicáveis, como o Centro Internacional para Resolução de Disputas sobre Investimentos, entre outros; os sistemas alternativos de solução de controvérsias e os sistemas preventivos de resolução de disputas. Dentro deste estudo, foi trabalhada a teoria da sombra do direito como instrumento para explicar o comportamento dos agentes na negociação na fase pré-contenciosa. Foram analisados os mecanismos de prevenção de controvérsias instituídos nos ACFIs, representados pelo ombudsman ou Pontos Focais e o Comitê Conjunto, e o mecanismo de solução de controvérsias, pela arbitragem entre Estados. No mais, foi estudado o sistema de prevenção e solução de controvérsias sul-coreano, uma vez que o Brasil se inspirou neste para instaurar seu mecanismo preventivo. Assim, feito isso, foi contextualizada a teoria da sombra do direito aos ACFIs, chegando-se ao resultado se a arbitragem entre Estados propugnada estimula ou não a negociação entre as Partes.
The international investment regulation is changing and Brazil is inserted in this context, participating actively in it. The subject of this dissertation is the change in the Brazilian position on the regulatory regime of investments, as well as if the dispute resolution method adopted in the new Brazilian agreements encourages the negotiation between the parties under the precepts of the theory of the shadow of the law. The analysis started with the introduction of the international protection regime for investments and its evolution. Afterwards, the Brazilian position was described, pointing out that, despite its resistance to the model, the country tried without success to engage itself and subscribe a series of investment agreements during the 1990s. Furthermore, the current transition in the Brazilian investment politics has been demonstrated; hence, the passing from solely position of receptor of investments to a position of an investor as well. In that sense, the importance of the analysis of the creation of the Cooperation Facilitation Investment Agreements, which have been signed with five countries in 2015. Once the negotiation context and the material terms of the new agreement have been described and analyzed, the present work examined the dispute settlement systems on existing investments, specially the judicial process, emphasizing the investor-state arbitration, considered its main rules and institutions such as the International Centre for Dispute Resolution Investment, among others; the alternative systems of dispute resolution; and the preventive dispute resolution systems. Within the study of the preventive dispute resolution systems, the theory of the shadow of the law was conceived as a tool to explain the behavior of the agents while negotiating during the prelitigation phase. Thus, the dispute prevention mechanisms within the ACFIs represented by the ombudsman, or Focal Points, and the Joint Committee and the dispute settlement mechanism represented by the between States arbitration have been also analyzed. In addition, the South Korean controversies prevention and resolution system have been studied, since it has inspired the current Brazilian preventive mechanism. Therefore, the theory of the shadow of the law was adapted to the analyses of the ACFIs, coming to the result if the between State arbitration advocated stimulates or not the negotiations between the Countryparties.