The non-ratification of bilateral investment treaties in Brazil: a story of conflict in a land of cooperationy

Abstract

This article examines Brazil's unique experience with bilateral investment treaties (BITs) - the country signed 14 of them in the 1990s, but none was ever ratified. The case is puzzling for a number of reasons. First, BITs were an initiative of the presidency, and the Brazilian political system is notorious for executive branch's high level of success at enacting legislation. Second, the record of treaty ratification is very high in the country; between 1988 and 2006, 98% of the treaties signed entered into force in less than 18 months. Finally, the Brazilian Congress approved various investor-friendly policies that required even higher voting thresholds in the same period that BITs were being negotiated. We use primary legislative data and interviews with policymakers and bureaucrats to argue that a concentrated but strong ideological opposition in the Congress certainly contributed to hinder BIT ratification, but an unresolved executive - which addressed most investor's demands through alternative channels - was the decisive factor in explaining non-ratification. Ultimately, our findings imply that scholars need to open the black box of the executive in order to better understand the determinants of treaty ratification.