Protection of foreign investments in Brazil: recent developments

795 P ROTECTION OF FOREIGN I NVESTMENTS IN B RAZIL : RECENT DEVELOPMENTS 1 RENATO BENEDUZI Professor of Civil Procedure and Arbitration at the Pontifícia Universidade Católica do Rio de Janeiro (PUC-RIO) and visiting professor at the Institut d'études politiques de Paris (Sciences Po). Member of the Permanent Court of Arbitration in The Hague. Sumário: Introduction - 1. Current legal framework - 2. Procedural standard of protection: arbitration - 3. Substantive standards of protection: 3.1 Contract-based, statutory-based and treaty-based protection; 3.2 National treatment; 3.3 Fair and equitable treatment; 3.4 Protection against unlawful expropriation - Conclusion Bibliography. Introduction Brazil is among the world’s top recipients of foreign direct investment (FDI). In 2024, for instance, FDI inflows reached USD 46 billion, compared to USD 37 billion in 2023 and USD 67 billion in 20142. For comparison, Canada and Italy — developed countries whose GDPs are similar to Brazil’s — received USD 64 billion and USD 24 billion, respectively, in 20243. In relative terms, Brazil has therefore consistently attracted a substantial volume of foreign investment over the years, all while remaining proudly outside the traditional Investor-State Dispute Settlement system (to date, Brazil is party to neither the ICSID Convention nor any bilateral investment treaty that provides for investor-state arbitration). In this context, Brazil emerges as an outlier, both among its Latin American neighbours and in comparison to other economies of similar size. Several explanations have been proposed for this phenomenon — some of a more ideological nature, and others based on the perception that investment arbitration has been disadvantageous to other countries in the region and beyond 4. Among Brazilian policymakers, in any 1 This article is written in honour of Professor Nadia de Araujo, a dear friend and one of the most respected and prolific Brazilian scholars in the field of private international law. 2 See https://www.statista.com/statistics/1392925/net-foreign-direct-investment-brazil/ ; accessed 31 July 2025. 3 See https://www.oecd.org/en/data/indicators/fdi-flows.html ; accessed 31 July 2025. 4 As Ambassador Carlos Marcio Bicalho Rodriguez, for instance, explains in his Os acordos brasileiros de investimento (Rodriguez (ed), Acordos de investimento à brasileira (2015), p. 13). See also Badin and Morosini, ‘Navigating between resistance and conformity with the international investment regime’ in Morosini and Badin (eds), Reconceptualizing International Investment Law from the Global South (2018), p. 219, Grebler, ‘A proteção aos investimentos estrangeiros no Brasil’ in Barros and Nanni (eds), Estudos em homenagem a Selma Ferreira lemes, vol. III (2025), p. 258, Lemos and Campello, ‘The Non-Ratification of Bilateral Investment Treaties in Brazil: A Story of Conflict in a Land of Cooperation’, 22 Review of International Political Economy (2015), Moraes and Hees, ‘Breaking the BIT Mold: Brazil’s pioneering approach to investment agreements’, 112 AJIL Unbound (2018) 197, Levy and Moreira, ‘ICSID in Latin America: Where Does Brazil Stand’ in Levy, Borja and Pucci (eds), Investment protection in Brazil (2013), p. 17, Martins, Brazil’s Cooperation and Facilitation Investment Agreements (CFIA) and Recent Developments (2017), (https://www.iisd.org/itn/2017/06/12/brazils-cooperation-facilitation-investment-agreements-cfia-recentdevelopments-jose-henrique-vieira-martins/ ; accessed 31 July 2025, and Zuleta, ‘From the No to the May Be: Latin America and Investment Arbitration’ in Cavinder Bull, Loretta Malintoppi, et al. (eds), 21 ICCA Congress Series (2022) 477. 796 case, there is a widespread perception that, from a cost-benefit perspective, joining the InvestorState Dispute Settlement (ISDS) system is simply not worthwhile, especially given the consistently high levels of FDI Brazil attracts each year. The growing backlash against investor-state arbitration in recent years, along with repeated calls for reform, appears to lend further credence to Brazil’s exceptionalism in the field of investment protection5. 1. Current legal framework Brazil is not a party to the ICSID Convention, and none of the bilateral investment treaties it signed in the 1990s ever entered into force 6; nor do the Cooperation and Facilitation Investment Agreements (CFIAs) that Brazil concluded from the 2010s 7 provide for investor–state arbitration8. In sum, Brazil’s legal regime for investment protection appears to operate under a “Calvo Reborn” doctrine of sorts9. In this context, it is often argued that investors, both foreign and domestic, benefit only from so-called contract-based protection10. This characterization, however, offers in my opinion an incomplete view of the actual level of protection afforded to foreign investors in Brazil. In fact, Brazilian law provides numerous functional equivalents, both procedural and substantive, to the traditional standards of protection available under the ISDS system, which makes the national legal regime for investment protection less exceptional than is often assumed. 5 For more details, see, for example: Beaumont, Brodlija, Ashdown and Terrien (eds), The Future of Investor-State Dispute Settlement: Reforming Law, Practice and Perspectives for a Fast-Changing World (2024). 6 See, for instance: Garcia Neto, ‘Investment Arbitration in Brazil: The Landscape of Investment Arbitration in Brazil and Why Brazil Should Become a More Important Player in the Investment Arbitration Arena’ in Levy, Borja and Pucci (eds). Investment protection in Brazil (2013), p. 4. 7 For a list of the CFIAs Brazil has signed and their current status, see: https://investmentpolicy.unctad.org/ internationalinvestment-agreements/countries/27/brazil ; accessed 31 July 2025. 8 See Moraes and Hees, ‘Breaking the BIT Mold: Brazil’s pioneering approach to investment agreements’, 112 AJIL Unbound (2018) 197 and Martins, Brazil’s Cooperation and Facilitation Investment Agreements (CFIA) and Recent Developments (2017), (https://www.iisd.org/itn/2017/06/12/brazils-cooperation-facilitation-investment-agreementscfia-recent-developments-jose-henrique-vieira-martins/ ; accessed 31 July 2025. 9 “The Latin-American reluctance to the international foreign investment protection system is widely known in the international community. It comes from the twentieth century, when the Latin countries adopted the ‘Calvo Doctrine’, which rejected international investment arbitration, establishing the position that foreign investors should be treated as equals and thus submit their conflicts to local courts” (Levy and Moreira, ‘ICSID in Latin America: Where Does Brazil Stand’ in Levy, Borja and Pucci (eds), Investment protection in Brazil (2013), p. 19). 10 As opposed to the treaty-based claims available to foreign investors under the traditional ISDS framework. For more details, see, for instance: Moses, The principle and practice of international commercial arbitration (4th ed. 2008), p. 258. 797 2. Procedural standard of protection: arbitration International investment law is largely premised on the assumption that neither diplomatic protection and State-to-State negotiation nor litigation before domestic courts constitute adequate means of protecting foreign investors 11. Against this background, arbitration has come to be recognised as a fundamental pillar of the ISDS system as it is understood today12. In Brazil, although foreign investors are not granted the right to initiate arbitral proceedings directly under treaty provisions, the Brazilian Arbitration Act (as amended in 2015) expressly permits the inclusion of arbitration clauses in contracts concluded between investors and the State or state entities (public administration)13. Arbitrability ratione materiae is fairly broad in cases involving the public administration14, and although acts of State are not, in themselves, subject to arbitration, their economic impact within the framework of a given contractual relationship is nonetheless arbitrable15. By contrast, claims not based on a contractual relationship may only be brought before Brazilian national courts, on the grounds — as will be discussed in the following section — of statutory and treaty provisions16. Further provisos apply to the use of arbitration involving the State and state entities in Brazil : in principle, Brazilian law must govern the dispute 17, and the arbitral proceedings may not be confidential 18. As for remedies, they are broader under Brazilian law than is typically the case within the traditional ISDS system: investors may be awarded not only damages, but also nonpecuniary relief, such as declaratory judgments and injunctions. This model has been aptly referred to as “Brazilian-style investment arbitration” 19. 11 See, for instance: Ferrari and King, International investment arbitration in a nutshell (2020), p. 13. In the words of Carolyn Lamm, Rocío Digón and Caitlin Walczyk, for instance: “Investment arbitration is the past, present and future of global investment and international business. Indeed, international arbitration is the tool that has enabled capital-importing States to actively compete for investors from capital exporting States, to offer international legal protection and an agreed method to resolve investment disputes” (Lamm, Digón and Walczyk, ‘The World Is Better with Investment Arbitration' in Bull Malintoppi et al. (eds), 21 ICCA Congress Series (2022) 941). 13 “Public administration” is a portmanteau expression that encompasses the State and state entities in Brazil. For more details: Mastrobuono and Junqueira, ‘Arbitration with Public Entities in Brazil: What Asian Investors Need to Know’, 23 Asian Dispute Review (2021) 125 and Nogueira, ‘The Protection of Public Interest in Contract-Based Arbitration with Public Entities: A Comparative Analysis of the English and Brazilian Legal Systems’, 86 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (2020) 111. See also Blackaby, Partasides and Redfern, Redfern and Hunter on International Arbitration (7th ed. 2024), p. 176. 14 For an analysis on the meaning and scope of application of the expression direitos patrimoniais disponíveis used by Article 1 of the Brazilian Arbitration Act, see Quintão, ‘Where the private meets the public: what to expect when arbitrating with Brazilian State entities’, 14 Revista Brasileira de Arbitragem (2017) 7. 15 See Beneduzi, ‘Arbitrabilidade parcial em litígios envolvendo a administração Pública’ in Baraldi, Abdo, Marcato and Mastrobuono (eds), Solução de disputas em infraestrutura (2023), p. 639. 16 The fact that substantive provisions contained in certain treaties may be applied even when the treaty does not provide for investor–state arbitration will be discussed in the following section. 17 For disputes involving the Federal government, see Article 3 of Decreto 10.025/2019. For more details: Tibúrcio and Pires, ‘Arbitragem envolvendo a Administração Pública: notas sobre as alterações introduzidas pela lei 13.129/2015’, 254 Revista de Processo (2016) 431. 18 Under Article 1, §3º, of the Brazilian Arbitration Act 19 Sester, Business and investment in Brazil: law and practice (2022), p. 448. 12 798 Finally, arbitration involving the State and state entities represents an increasing share of the caseload of arbitral institutions active in Brazil such as the ICC and CAM-CCBC 20; tellingly, the PCA is also about to open an office in the country, following the ratification in 2024 and entry into force in 2025 of the host country agreement it signed with Brazil in 2017 21. As arbitration becomes a reality in such cases, it is undeniable that foreign investors are now offered in Brazil — at least to some extent — a form of procedural safeguard that is characteristic of the traditional ISDS system and that stands in contrast to the pre-2015 legal landscape. 3. Substantive standards of protection In terms of substantive standards of protection, three of the most relevant for the protection of foreign investors are the so-called national treatment, fair and equitable treatment, and protection against unlawful expropriation22. Even outside the traditional ISDS system, Brazilian law largely affords these forms of protection to foreign investors, as we will see in the following sections. 3.1 Contract-based, statutory-based and treaty-based protection Each of the substantive standards of protection may be governed by different instruments, individually or in combination: (a) the contract to which investor and State or state-entity are parties; (b) (Brazilian) statutory law; and (c) treaties, particularly — but not exclusively —the Cooperation and Facilitation Investment Agreements (CFIAs) that Brazil has concluded since the 2010s 23 (the fact that the CFIAs do not provide for investor-state arbitration does not prevent investors, to whom the treaty applies, from relying on their substantive provisions). 3.2 National treatment The notion of national treatment describes a kind of substantive safeguard which is “meant to provide a level playing field between foreign investors and their local competitors and to prevent protectionist measures by host States in favour of national investors. They oblige host States to make no negative differentiation between foreign and national investors when enacting and applying their rules and regulations and thus to promote the position of the foreign investor to the level accorded to nationals”24. 20 For more details, see, for instance: https://canalarbitragem.com.br/wp-content/uploads/2024/12/Arbitragem-emNumeros-2024.pdf ; accessed 31 July 2025. 21 See https://pca-cpa.org/en/news/pca-press-release-entry-into-force-of-the-host-country-agreement-between-thepermanent-court-of-arbitration-and-the-federative-republic-of-brazil/ ; accessed 31 July 2025. 22 See, for instance: Bonnitcha, Substantive protection under investment treaties: a legal and economic analysis (2014) and Reinisch and Schill (eds), Investment protection standards and the rule of law (2023). 23 For a list of the CFIAs Brazil has signed and their current status, see: https://investmentpolicy.unctad.org/ international-investment-agreements/countries/27/brazil ; accessed 31 July 2025. As of 2025, only the CFIAs concluded with the United Arab Emirates, Mexico, and Angola are in force. 24 Dolzer, Kriebaum and Schreuer, Principles of International Investment Law (3rd ed. 2022), p. 253. 799 A general prohibition against discrimination towards foreign investors vis-à-vis nationals is now firmly established in Brazilian law. In 1995, the Sixth Amendment to the Constitution revoked former Article 171, which had distinguished between Brazilian companies with national capital and those with foreign capital. In interpreting Article 172 of the Constitution, which empowers Congress to regulate foreign investment in the country, the Supreme Court has held that “such provision, however, must not be construed so as to permit restrictions in sectors not expressly contemplated by the Constitution” 25. These exceptions are rare and narrowly construed, such as in respect of the ownership of rural land26 and media companies27. Moreover, the CFIAs concluded by Brazil consistently include provisions prohibiting discrimination against foreign investors. Article 5 (2) of the CFIA concluded between Brazil and the United Arab Emirates, for instance, provides that “without prejudice to the measures in force under its legislation on the date of entry into force of this Agreement, each Party, subject to its laws and regulations, shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments” 28. While this treaty does not provide for investor-state arbitration, qualifying foreign investors may nevertheless rely on its provisions to bring claims against the State or state entities before Brazilian courts — or through arbitration, provided the claim arises from a contract containing an arbitration clause — in the event of a breach of the national treatment obligation. 3.3 Fair and equitable treatment Fair and equitable treatment, in turn, may be understood in general terms “as embodying the rule of law as a standard that the legal systems of host States have to embrace in their treatment of foreign investors”29, and this notion encompasses a range of sub-standards, such as the so-called protection of legitimate expectations, “the protection of reliance on the position taken by a public authority”30, and the prohibition of arbitrary, discriminatory, and abusive treatment. As with national treatment, these standards are not foreign to Brazilian law. On the contrary, the principles of legitimate expectation (princípio da confiança legítima)31 and regulatory 25 “Tal dispositivo, entretanto, não deve receber interpretação que permita restrições em setores não explicitamente previstos na Constituição” (RMS 35170/DF; Relator(a): Min. EDSON FACHIN; Julgamento: 18/11/2022). 26 Pursuant to Article 190 of the Constitution. 27 Pursuant to Article 222 of the Constitution, as amended in 2002. 28 For a detailed analysis of how all CFIAs signed by Brazil address the issue of national treatment, see Martes, The Brazilian CFIA model as a mechanism for enhancing protection and respect for socio-economic rights (2021), p. 131. 29 Schill, ‘Fair and equitable treatment, the Rule of Law, and Comparative Public law’ in Schill, Stephan (ed), International Investment Law and Comparative Public Law (2010), p. 159. 30 Dolzer, Kriebaum and Schreuer, Principles of International Investment Law (3rd ed. 2022), p. 207. 31 “O âmbito de incidência do princípio da proteção da confiança permite extrair diversos desdobramentos na relação entre os particulares e o Estado-Administração. Como primeiro aspecto, a proteção da confiança funciona como limite à conduta do Poder Público em face da esfera jurídica do particular, principalmente no que se refere à restrição de direitos ou à imposição de sanções. Como segundo aspecto, o princípio da proteção da confiança inibe que situações jurídicas 800 stability (estabilidade regulatória)32 are firmly established in the Brazilian legal system, as are the principles of reasonableness (razoabilidade) and proportionality (proporcionalidade)33. Similarly, the civil-law doctrine of the prohibition of the abuse of rights (proibição do abuso de direito) enjoys widespread acceptance in Brazil34. All these principles can be applied by both judges and arbitrators — albeit more broadly by judges — to determine the legality of administrative acts and to assess the financial repercussions of such acts on the economic‑financial equilibrium of a contract between an investor and the State or a State entity35. Although these standards are well established under Brazilian domestic law, it is noteworthy that their application may be explicitly excluded under the terms of a CFIA, such as by Article 4 (3) of the CFIA concluded between Brazil and India (not yet in force), which provides that “for greater certainty, the standards of ‘fair and equitable treatment’ and ‘full protection and security’ are not covered by this Agreement and shall not be used as interpretative standards in investment dispute settlement procedures”. 3.4 Protection against unlawful expropriation Another very important substantive safeguard is the so‑called protection against unlawful expropriation. Details may vary, but Article 6 of the 2012 U.S. Model BIT offers a commonly accepted definition: “Neither Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (“expropriation”), except: (a) for a public purpose; (b) in a non-discriminatory manner; (c) on payment of prompt, adequate, and effective compensation; and (d) in accordance with due process of law and Article 5 [Minimum Standard of Treatment] through (3)”. Brazilian law does not always go as far as the U.S. Model BIT. Nonetheless, the requisites of public purpose, non-discrimination, due process, protection against indirect expropriation, and adequate and prompt compensation are all applicable under Article 5(24) of the Constitution and relevant statutory provisions36. As with the national treatment standard, exceptions are rare — only consolidadas no tempo e regularmente constituídas possam ser desfeitas em razão da mudança de entendimento da administração pública, resultando em prejuízo aos administrados. Como terceiro aspecto e não menos importante, a proteção da confiança propicia uma ressignificação da conduta do Poder Público em face de atos administrativos reputados como ilegais cuja invalidação – sem a devida atenção às peculiaridades do caso concreto – pode apresentar consequências indesejáveis e mais gravosas ao cidadão” (Pinho, ‘O princípio da proteção da confiança legítima como limite à conduta do Poder Público em face da esfera jurídica do cidadão’, 133 Revista de Direito Constitucional e Internacional (2022) 159). 32 "Regulatory stability is widely recognised as one of the key 'pillars' of Brazil’s 2019 Regulatory Agencies Act. See Guaranys and Albuquerque, ‘Lei das Agências Reguladoras: básica, mas revolucionária’ in Mattos (ed), A revolução regulatória na nova lei de agências (2021). 33 See, for instance: Barroso, ‘Os princípios da razoabilidade e da proporcionalidade no direito constitucional’, 23 Revista de Direito Constitucional e Internacional (1998) 65. 34 Under Article 187 of the Civil Code. For more details: Peixoto, Abuse of rights: from abus de droit to Allgemeine Verbot unzulässiger Rechtsausübung (2023). 35 See Beneduzi, ‘Arbitrabilidade parcial em litígios envolvendo a administração Pública’ in Baraldi, Abdo, Marcato and Mastrobuono (eds), Solução de disputas em infraestrutura (2023), p. 639. 36 Particularly Decreto-lei 3.365/41. 801 those expressly provided for in constitutional provisions are admissible, such as with regard to land reform under Article 184 — and they must be narrowly construed. Finally, the prohibition of unlawful expropriation is also a subject typically addressed in the CFIAs concluded by Brazil — as exemplified by Article 6 of the CFIA signed with India (not yet in force), which provides as follows: 6.1: “Neither Party may nationalize or expropriate an investment of an investor (hereinafter "expropriate") of the other Party, except: a) for reasons of public purpose; b) in a non-discriminatory manner; c) on payment of effective and adequate compensation, according to paragraph 6.2; and d) in accordance with the due process of law. 6.2 Such compensation shall: a) be paid without undue delay; b) be at least equivalent to the fair market value of the expropriated investment, immediately before the expropriation takes place but not beyond thirty (30) days prior to the date of expropriation, plus interests at a rate determined according to market criteria, accrued since the expropriation date until the payment date, according to the legislation of the Host State; c) not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value; and d) be completely payable, freely exchanged into a convertible currency and freely transferable, according to Article 9. While this treaty does not provide for investor–State arbitration, it is important to note that qualifying foreign investors will nevertheless be able to rely on its provisions — once it enters into force — to bring claims against the State or state entities before Brazilian courts, or through arbitration, provided the claim arises from a contract containing an arbitration clause, in the event of a breach of the protection against unlawful expropriation. Conclusion Not rarely, countries revise their foreign policy convictions in response to changing geopolitical and economic circumstances. China, once considered a third-world country and now a global superpower, offers several interesting examples of this phenomenon. As Brazil becomes an exporter of FDI37, its stance on investment protection may likewise evolve. For the time being, however, the prospect of Brazil acceding to the ICSID Convention or adopting investor-state arbitration remains unlikely. Nevertheless, as I have sought to demonstrate in this article, Brazilian law provides numerous functional equivalents — albeit often in a less extensive form — to the standards of protection available under the traditional ISDS system. In fact, Brazil’s domestic legal framework for investment protection is far less exceptional than is commonly assumed. Foreign investors would certainly benefit from bearing that in mind. 37 In 2023, Brazil’s total outward FDI position reached US$491.4 billion. In 2010, the position stood at US$191.3 billion (https://www.bcb.gov.br/content/publicacoes/relatorioidp/RelatoriaID2023/RID_2024.pdf ; accessed 31 July 2025. In 2000, it was only US$ 13.2 billion and in 1990 US$2.3 billion (https://unctad.org/system/files/official-document/wir2002Annexes_en.pdf?; accessed 31 July 2025). 802 Bibliography Badin and Morosini. ‘Navigating between resistance and conformity with the international investment regime’ in Morosini and Badin (eds). Reconceptualizing International Investment Law from the Global South (Cambridge University Press, 2018). Barroso, Luís Roberto. ‘Os princípios da razoabilidade e da proporcionalidade no direito constitucional’, 23 Revista de Direito Constitucional e Internacional (1998). Beaumont, Brodlija, Ashdown and Terrien (eds). The Future of Investor-State Dispute Settlement: Reforming Law, Practice and Perspectives for a Fast-Changing World (Kluwer, 2024). 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