As inconsistências da solução investidor-Estado na proteção internacional do investidor estrangeiro: análise das principais cláusulas substantivas dos BITs a partir dos casos arbitrais ad hoc, sob a perspectiva dos países receptores de capital

Abstract

International investment law is historically structured by the unilateral protection of the foreign investor. The dissemination of the Bilateral Investment Treaty (BIT) model dates back to the second half of the twentieth century, and its expansion occurred only after the 1980s. BITs consist of an international agreement comprising substantive and procedural rules, defining the protection of foreign investment and investors in a territory other than their nationality, as well as establishing a dispute resolution model, with the adoption of the Investor-State solution system via ad hoc arbitration. In the 21st century, after decades of prevalence of BITs, there have been numerous criticisms of this model, characterized by subjective and controversial decisions, incongruous interpretations and, above all, by blocking the legitimate exercise of the State to dispose of its public interest, such as environmental protection, health and economic measures. The article analyzes these substantive rules from ad hoc arbitration cases: (i) National Treatment (NT); (ii) Most-Favored-Nation Treatment (MFN); (iii) Minimum Standard of Treatment (MST) principle; (iv) Fair and Equitable Treatment (FET); (v) Full Protection and Security (FPS); (vi) Direct and Indirect Expropriations and Compensation; and (vii) Umbrella Clause. Finally, the article concludes that the arbitral awards are inconsistent and inflict serious damage to the exercise of the States, especially to host States, which is evidenced by the recent amendments of the BITs by more restrictive models of international investment protection.