International Investment Law in Rio de Janeiro in Times of Oil Opening.
An exchange between UERJ – UHLC
Julián Cárdenas - García
There is a well-known story of two salesmen who went down to Africa in the early 1900s to see if there were some opportunities to sell shoes. After arriving in Africa, they each wrote telegrams back to Manchester. One of them wrote, "Situation hopeless, they do not wear shoes," and the other one wrote, "Great opportunities, they do not have any shoes yet!"
Teaching a course in Brazil entitled, "Introduction to International Investment Law" might give rise to some skeptical comments, since Brazil has refused to join the international investment arbitration system of the World Bank managed by the International Center of Settlement of Investment Disputes (ICSID), but also because it has not ratified any of its Bilateral Investment Treaties (BITs); therefore, it is not part of the transnational network of more than 3,000 of these treaties that rule foreign investment worldwide.
However, despite the presumption that Brazilians are reluctant to engage in international investment law, a visionary initiative came from the part of Brazilian Prof. Marilda Rosado asking the EENR Center to carry out this course in Rio de Janeiro. The course was coordinated by a team of young and talented Professors, Emília Castro and Ely Xavier, from the Research Center of Petroleum Law (CEDPETRO) (1) at the Law School of the University of the State of Rio de Janeiro (UERJ). The idea was to present a course to Brazilian students exploring the evolution of investment arbitration disputes, as well as the interpretation of the standard clauses in BITs. The purpose of this foray into international investment law was to study the impact that it may have in the performance and the outcome of disputes arising from petroleum investments in Brazil. This is an especially important topic because Brazil is rapidly opening up access to its oil and gas reserves through numerous bid rounds currently taking place.
The course was held at UERJ, very close to the iconic Maracana Stadium area in Rio de Janeiro, and was divided in ten sessions from May 27th to June 7th 2013. The first thing that surprised me was that among the 30-35 students attending the course, there were a number of LLM students eager to discuss international investment law issues. This group of students formed a review group of ICSID arbitral awards and issues on investment law. But that was not the only thing, as many of them were not only bilingual, but multilingual with international and cosmopolitan backgrounds in their studies and careers. The class was very curious about international investment law, and very active in discussions about challenging topics on international arbitration, the competence-competence principle, BITs standards, the legal nature of petroleum contracts, and the existence of transnational legal orders.
This enthusiasm made perfect sense when I realized the broad career spectrum of the students. Some were in-house attorneys from PETROBRAS (Brazilian NOC) and NEO Gas. Others were State and Federal Attorneys working for the Brazilian Petroleum Agency (ANP). In addition to the in-house and public interest attorneys, there were also firm attorneys from Bastos Tigre Advogados and Luis Roberto Barroso & Assoc. The students from UERJ and the Federal University of Rio de Janeiro (UFRJ) Law School who had yet to begin practicing were interns at international oil companies such as Shell and Weatherford. I must say that all of them contributed to an outstanding academic debate on the interaction of Brazilian law and International Law. More importantly, they showed me that Brazil has a new generation of bright attorneys and future attorneys that has the responsibility to lead the country in the right direction.
Further, the two weeks' timeframe gave the opportunity to present a talk on June 4th for undergraduate students of UERJ Law School on "Tools for Research on Oil and Gas Law." I was also able to attend the first talk organized by the Center of Excellence in Development of Oil, Energy and Mining (CEDPEM) (2) on "New Opportunities in the Oil and Gas Industry in Brazil". Also, the timing coincided with the release of the new edition of the Brazilian Journal of Oil, Gas and Energy (3) where Prof. Jacqueline Lang Weaver is member of the Board of Directors.
To conclude my visit, a presentation was scheduled at the Brazilian Petroleum Institute (IBP) (4) on June 6th, focused on Non-State Rules Applicable in Investment Arbitration. The presentation highlighted the use of these rules by States, private parties and arbitral panels dealing with petroleum industry projects such as best practices of the petroleum industry, UNIDROIT Principles and IBA Rules in Petroleum Arbitration. This presentation revealed a new trend in applicable law for transnational petroleum transactions.
All these activities allowed me to confirm that there is a big interest in Brazil to be knowledgeable not only in engineering technology for new offshore frontiers, but also for the design and performance of an appropriate system of rule of law. One part of this is to develop the human resources capable of addressing the challenges in the new projects of the next two decades. The current situation and the close connection on transnational law thinking will promote more exchanges between UERJ and University of Houston Law Center, in the form of training or research in Rio de Janeiro and Houston.