re: Investment Arbitration in Brazil: Yes or No?

As an arbitrator and one who does not have any connection with the Brazilian legal system, I  can more particularly identify with the views of Weiler and de Oliveira. I can understand the confidence that Brazilians may have in their own courts when faced with the issue of resolving international investment disputes and the question of the issue of sovereignty.

The matter regarding international investments and Brazil’s apparent advancement into this global arena will however necessitate a paradigm shift in thinking. The growth in international investment both for capital inflow and outflow requires a system of reciprocity, neutrality, transparency and certainty in regard to the available mechanisms for dispute resolution.

Since international investors may have more confidence in the legal systems with which they are naturally connected and would rather resort to their own courts to resolve disputes, the international arbitral dispute mechanisms provided by BITs are intended to offer a neutral forum without any bias toward the disputing parties’ own systems. As such, both the Brazilian partner and the foreign investor will be protected by BITs  and when the investment flow is in the other direction making the Brazilian the foreign investor, it will equally provide the necessary assurance.