Brazilian CIFAs: A Policy Shift from Investment Protection and Liberalization to Investment Facilitation
Brazilian CIFAs:
A Policy Shift from Investment Protection and Liberalization to Investment Facilitation
Dan Wei and Hongling Ning
 
ABSTRACT: The investment protection paradigm faces increasing dissatisfaction and there are growing national security concerns over the entry of foreign direct investment (FDI). When policy makers carry out reforms of traditional bilateral investment treaties (BITs), Brazil, in its turn, developed a novel model of investment treaty, i.e., Cooperation and Investment Facilitation Agreements (CIFAs) to protect its outbound investments. In line with Brazil’s long-standing investment policy, CIFAs focus primarily on investment facilitation rather than on investment protection. Brazilian CIFAs distance their substantive foundation from international minimum standards by eliminating typical norms of BITs and reaffirming regulatory autonomy of state parties. Through the optimization of the domestic regulatory framework in which foreign investment operates, CIFAs aim at promoting amicable ways to prevent and settle disputes by means of institutional governance, and fostering constructive shareholder relationship through continuous dialogue. By focusing on investment facilitation that directly contributes to improving domestic governance, CIFAs may fill the gap of BITs. Nonetheless, policies of investment protection, investment liberalization and investment facilitation are all essential components of favorable business environment, hence states should try to find ways to integrate them.

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