Part 2 Specific Issues of Arbitration in Brazil, 11 Project Finance, PPP, and Concession Agreements

Abstract

This chapter examines investment arbitration in Brazil. In the 1990s, the country signed a dozen Bilateral Investment Treaties (BITs). These included clauses modelled on the framework for classic investor-state-arbitration. However, these BITs were never ratified and there are no signs that this will soon change. In recent years, Brazil has entered into a new type of investment agreement with a number of emerging markets. These contracts do not provide for investor-state-arbitration, but rather a kind of conciliation or meditation mechanism on the state-to-state level, which has never been tested so far. Since 2015, however, Brazil has been heading towards a new type of investment arbitration based on Brazilian Arbitration Law (BAL) and the New York Convention (NYC). In this new type of arbitrations, the public administration will, in principle, be represented by its own state attorneys. The arbitration framework used by Brazilian public administration is modelled on the legal framework of Commercial Arbitration, though with some important modifications mainly serving the interest of public administration.