Arbitragem de Investimento sob Análise: o caso Philip Morris v. Uruguai

Abstract

In 2010 Philip Morris filed a claim in an arbitral tribunal against Uruguay for the country’s adoption of legislation to reduce consumption of tobacco. The claim was only possible because a bilateral investment treaty between the South American country and Switzerland established that disputes between investors and the host state of an investment would be settled through arbitration. The mechanism is target of many criticisms especially after arbitral suits were brought against developed countries in the 1990s. One of these criticisms is that investment arbitration has been used by investors as a way to influence public policy, tendency that seems to be confirmed by the case study. Pro-investor imbalances make necessary the adoption of reforms in the treatment received by foreign investment within the framework of the international investment regime. Proposals that address directly the causes of regulatory chill such as change in the method of procedural costs allocation, formal recognition of the regulatory power of States in the text of investment treaties and the establishment of mechanism for summary dismissal of frivolous suits must be considered in an eventual reform of the regime.