Brazilian CFIA: Evolution Towards the Traditional?

Brazil enjoys a peculiar position in international investment policymaking. The country has never ratified any of the Bilateral Investment Treaties (BIT) signed in the 1990s; neither is part of the ICSID Convention. BITs containing traditional protection clauses found a tough resistance in the legislative branch leading the executive to withdraw them without approval. Despite that, it has been ranked among the 10 top destinations of investments worldwide. The discussions in the legislative highlighted two main concerns regarding the compatibility of the BITs with the Brazilian Constitution: BITs’ provision ensuring effective, prompt, and adequate compensation, in contrast with the constitutional provision that provides for the payments with bonds in expropriations for agrarian reform; and the privilege given to international investors—not available to nationals—to use arbitration against the State.