The Brazil-India Investment Cooperation and Facilitation Treaty: Giving Concrete Meaning to the “Right to Regulate” in Investment Treaty-Making

16 Pages Posted: 18 Mar 2021

See all articles by Henrique Choer Moraes

Henrique Choer Moraes

Embassy of Brazil in New Zealand ; KU Leuven

Pedro Cavalcante

Ministry of Foreign Affairs of Brazil

Date Written: March 17, 2021

Abstract

Brazil and India signed, in January 2020, the Investment Cooperation and Facilitation Treaty. The agreement is unique by many measures, not least because Brazil and India—two of the largest global economies and respectively the 6th and 9th global recipients of FDI in 2019—have approaches to investment agreements that depart from the BIT model in important ways. This Note argues that the Brazil-India agreement represents a strong contribution to the safeguard of the “right to regulate”, by which we mean the incorporation of clauses that protect the state’s ability to make public policies. The agreement does not contain provisions on “fair and equitable treatment”, “indirect expropriation” and the traditional standards of treatment that often feature in BITs (and are the cause of many arbitral disputes). At the same time, it lays down a number of exceptions for public policies as well as some investor obligations. Yet, for all its uniqueness the Brazil-India agreement can be placed within a trend, visible particularly in developed economies, to tilt the balance in the direction of a more robust protection of the state’s capacity to regulate and to eschew traditional forms of dispute resolution.

Keywords: International economic law; investment law; ISDS; Brazil ; India

Suggested Citation

Choer Moraes, Henrique and Cavalcante, Pedro, The Brazil-India Investment Cooperation and Facilitation Treaty: Giving Concrete Meaning to the “Right to Regulate” in Investment Treaty-Making (March 17, 2021). Available at SSRN: https://ssrn.com/abstract=3806145 or http://dx.doi.org/10.2139/ssrn.3806145

Henrique Choer Moraes (Contact Author)

Embassy of Brazil in New Zealand ( email )

Level 13, 10 Customhouse Quay
Wellington, 6011
New Zealand

KU Leuven ( email )

Belgium

Pedro Cavalcante

Ministry of Foreign Affairs of Brazil ( email )

Brazil

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