Third World Quarterly ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/ctwq20 Political economy of South–South relations: an analysis of BRICS’ investment protection agreements in Latin America and the Caribbean Ana Saggioro Garcia & Rodrigo Curty Pereira To cite this article: Ana Saggioro Garcia & Rodrigo Curty Pereira (2022): Political economy of South–South relations: an analysis of BRICS’ investment protection agreements in Latin America and the Caribbean, Third World Quarterly, DOI: 10.1080/01436597.2022.2128328 To link to this article: https://doi.org/10.1080/01436597.2022.2128328 Published online: 26 Oct 2022. Submit your article to this journal View related articles View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=ctwq20 THIRD WORLD QUARTERLY https://doi.org/10.1080/01436597.2022.2128328 Political economy of South–South relations: an analysis of BRICS’ investment protection agreements in Latin America and the Caribbean Ana Saggioro Garciaa and Rodrigo Curty Pereirab a International Relations Institute, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil; Department of Geography and Environmental Management, University of Waterloo, Waterloo, ON, Canada b ABSTRACT ARTICLE HISTORY In the late 2000s, the emergence of the BRICS (Brazil, Russia, India, China and South Africa) gave rise to expectations of an alternative for the countries of the Global South in relation to the traditional powers. In this paper, we investigate international investment agreements between the BRICS and Latin America and the Caribbean (LAC). We seek to identify to what extent the BRICS can promote changes in the international investment regime or, on the contrary, reinforce the traditional model of foreign investment protection. To this end, we investigated LAC’s political-economic relations with each BRICS country through document analysis of their models of agreements and secondary data analysis of investment, trade, and credit flows, as well as social and environmental conflicts. We conclude that, although some of the BRICS have promoted important innovations in their investment agreements, the models used by each member with their Latin American counterparts mostly reproduce (except for Brazil) the traditional model. Further, the bloc’s economic relations with LAC have largely reinforced the region’s role as an exporter of raw materials, reproducing asymmetric relations of dependency. Therefore, LAC–BRICS relations, despite representing a geopolitical counterpoint, are limited in contributing to a socially just and sustainable development process. Received 30 December 2021 Accepted 21 September 2022 KEYWORDS BRICS Latin America and the Caribbean bilateral investment treaties foreign direct investment Introduction The BRICS (Brazil, Russia, India, China, and South Africa) have been constituted as a political and economic platform since the late 2000s. As of 2014, the bloc has become institutionalised through areas of cooperation, annual official summits, and the creation of the New Development Bank (NDB). The rise of BRICS reinforced the deeply rooted imaginary of ‘modernisation’ and ‘development’. At that time, some analyses (eg Desai 2013; Bello 2014) were optimistic about the ability of these countries to reform multilateral institutions and become an alternative to the US hegemony, while others (eg Bond and Garcia 2015; Kiely 2015) pointed to its limitations, claiming that the group has sought to integrate multilateral bodies CONTACT Ana Saggioro Garcia © 2022 Global South Ltd anasaggioro@puc-rio.br 2 A. SAGGIORO GARCIA AND R. CURTY PEREIRA without substantially altering their structures, and deepened investment, trade, and credit flows within the global capitalist order. Among the BRICS, China has consolidated itself as one of the main origins and destinations of foreign direct investment (FDI) in the world, investing largely in other regions of the Global South (UNCTAD 2020, 12–15), such as Latin America and the Caribbean (LAC), where multinational companies originating from China and Brazil have been active in energy and infrastructure megaprojects over the last two decades (Dussel Peters 2020; CEPAL 2016; Barakat et al. 2017; UNCTAD 2019). China also holds the most bilateral investment treaties (BITs) of all countries in the world, having signed them with 124 nations.1 In this article, we conduct an analysis of international investment agreements (IIAs) between the BRICS and LAC countries through the lens of international political economy. The countries of the region conformed to the neoliberal agenda in the 1990s and 2000s by negotiating many BITs and free trade agreements (FTAs) as a result of pressure from international organisations and Latin American elites to ensure access to resources and attract foreign investments (Ghiotto 2020, 21). The main partners in these treaties were countries from the Global North, but not exclusively. China turns out to be one of the main drivers of investment protection and facilitation agreements today. In turn, Brazil, India, and South Africa have promoted reforms in their models of BITs, as an effort to reduce the burdens caused by arbitration cases involving foreign investors. Thus, we ask: to what extent do BRICS countries innovate in the international investment regime, and what are the main characteristics of its BIT models with Latin American and Caribbean (LAC) countries? Finally, can investment and trade relations between BRICS and LAC present an alternative to the region’s relations with traditional powers? By pushing for reforms in the international investment protection and facilitation regime that aim to guarantee a greater policy space, some of the BRICS countries potentially converge with the demands of LAC countries, as well as the pressures from transnational civil society movements and networks, for a regime change that can safeguard the sovereign rights of states and social-environmental rights of communities and workers. Nonetheless, our research shows that this movement faces at least two limitations: first, when we look specifically at the BIT models used by each of the BRICS countries with their Latin American counterparts, they mostly reproduce (except for Brazil) the traditional model; second, the growing participation of investment flows from these countries in the extractive and infrastructure sectors in LAC has resulted, in some cases, in conflicts and contestations in the territories where the projects are implemented. Additionally, trade relations between LAC countries and some of the BRICS emulate the traditional international division of labour, reinforcing Latin America’s role as an exporter of primary products. Our analysis indicates that the relations between BRICS and LAC have the potential to balance the geopolitical overweight of the US in the region; however, they also have limitations regarding a more socially just and sustainable development process for the lives of the populations in these territories. This paper is divided into five sections, including this introduction. The following section explores the methods used, while the next two present our results. The first results section provides a summary of the history of BITs and how Latin American countries and the BRICS have positioned themselves in this regime. The second results section combines the findings of our secondary data and document analyses, offering an overview of BRICS–LAC economic THIRD WORLD QUARTERLY 3 relations in terms of trade, investment, and financial flows, and the models of BITs held between these countries. The final section offers our conclusions. Methods In our research, we conducted a thorough literature review on the history of IIAs and how LAC countries and the BRICS have positioned themselves in relation to these instruments. We also utilised secondary data from renowned international agencies to determine trends in investments, trade and financial flows between the BRICS and LAC. Additionally, we reviewed relevant grey literature to understand the social and environmental impacts of BRICS’ investments in the region. Furthermore, we conducted a document analysis of all the BITs held between the BRICS and Latin American countries, available online at the United Nations Conference on Trade and Development (UNCTAD)’s Investment Policy Hub.2 Based on the BITs literature, we conducted deductive coding of these documents (Bowen 2009), aiming to determine how they differ (or not) from the traditional BIT model according to nine main aspects: definition of investment; presence of the principle of just and equitable treatment; the most favoured nation (MFN) principle; protection against direct and indirect expropriations; free transference of funds; presence of dispute settlement mechanisms between investor and state; type of dispute settlement mechanism; duration of the treaty; and presence of corporate social and environmental responsibility requirements. In the following sections, we report the main trends observed from the implementation of these methods, by focusing on three aspects of BRICS–LAC political and economic relations: investments (our research focus), credit and trade (when relevant to each case). Under the lenses of Robert W. Cox’s critical theory of international relations, we understand these economic flows as material capabilities (Cox 1981). We complemented our analysis by studying the BRICS’ BITs and the effects of their investments in Latin American societies and environments, which allowed us to grasp some of the ideas and institutions that compose this historical structure (Cox 1981). Added to this theoretical background, we bring the critical literature on investment agreements that originated in Latin America (eg Arroyo and Ghiotto 2017; Slipak and Ghiotto 2019; Bárcena et. al. 2020), which has pointed to the emergence of a global corporate law as the ‘new lex mercatoria’ (Zubizarreta 2009), providing multinational corporations with binding coercive and enforceable trade and investment rights against which international human rights law becomes fragile. Finally, as pointed out elsewhere (Garcia 2017), this article presents a critique of the political economy of investment agreements in support of ‘BRICS from below’ (Bond and Garcia 2015), ie the position of those negatively impacted by and resisting the overall loosening of trade restrictions associated with the economic rise of the BRICS in other countries and regions of the Global South. Brief history of the BITs debate According to UNCTAD, a BIT is an agreement between two countries concerning the promotion and protection of investment by enterprises of each country in the territory of the other. Most IIAs are BITs. Within the category of BITs, there are also FTAs that contain structuring clauses on investment (UNCTAD n.d.a). 4 A. SAGGIORO GARCIA AND R. CURTY PEREIRA The first BITs were negotiated in the post-World War II period. These were essentially non-reciprocal and asymmetric agreements, as they were drafted by a developed country and offered to a developing one (Vandevelde 2009, 14). The geopolitical context was determinant: on the one hand, decolonisation processes made newly independent countries more nationalistic in economic terms; on the other hand, the emergence of the Soviet bloc in this period was founded on nationalisations and expropriations of private and foreign assets. In the 1970s, the declaration for a New International Economic Order at the United Nations (UN) stipulated that states had sovereignty over their natural resources and economic activities and had the right to nationalise, expropriate or transfer foreign property as long as they offered appropriate compensation (Vandevelde 2009, 13). The heart of BITs lies in the dispute settlement clause, which allows an investor to take a state to an international court of arbitration for disputes concerning an investment. In general, disputes arise around the payment of compensation for expropriation, or the fact that investors sometimes consider national legislation and public policies as measures equivalent to expropriation, frustrating their expectations of future profits (Godinho and Cozendei 2015). In 1965, the Washington Convention established the International Centre for Settlement of Investment Disputes (ICSID) as a forum for the arbitration of disputes between an investor and the host country, on the grounds that judicial systems in Third World countries would not be impartial. As a result, foreign investors no longer exhausted domestic courts before resorting to international arbitration (Arroyo and Ghiotto 2017). With the end of the Cold War, the number of trade and investment agreements proliferated (UNCTAD 2015). BITs were seen as vectors of globalisation as they were expected to be fundamental for increasing investment flows. Thus, the rise in the number of BITs resulted from the ideological conviction around the ‘need’ to create friendly conditions for foreign investors (Vandevelde 2009, 22). In this period, trade in goods and services was combined with provisions on investment protection in the scope of new treaties. At the same time, there was a significant growth in agreements between developing countries, as some of them were also becoming exporters of capital to other developing countries. By the end of 2006, more than a quarter of all existing BITs were between developing countries.3 The negative effects of BITs have led to many criticisms of an economic, social or political nature. One of them concerns the non-verification of the causal link between maintaining a BIT and increasing investment flows in a country. The expectation that countries would attract greater investment flows by ensuring legal guarantees for foreign investors has not come to fruition (Arroyo and Ghiotto 2017, 40). Another problematic aspect concerns the evident preponderance of investor protection vis-à-vis host states, with the consequent reduction of the space for nationally defined public policies. This aspect is particularly evident regarding investor–state dispute settlement, where the foreign investor can turn to the ICSID and escape national forums (Morosini and Ratton 2018, 3; Morosini and Xavier 2015, 426). Moreover, Zubizarreta (2015) points to the normative asymmetry that ensures transnational corporations binding commercial rights in the face of which international human rights law becomes fragile. In LAC, social movements have played a leading role in the debate over and critical incidence of investment and free trade agreements, leading important resistance campaigns throughout the 1990s and 2000s (Arroyo and Ghiotto 2017, 52). According to Remmer (2019), LAC are disproportionately represented in the international arbitration system (see Figure 1), having been involved in 31% of a total of 626 dispute cases by mid-2015. Twenty-two countries in the region have been brought to arbitration at the ICSID THIRD WORLD QUARTERLY 5 Figure 1. Comparison of the number of cases (responding state × requesting state) in the ICSID by region (1987–2020). Authors’ preparation based on data from UNCTAD (n.d.c). by private investors, with 73% of the cases involving Argentina, Venezuela, Ecuador, Peru and Bolivia (Bárcena et al. 2020, 130). The results of treaty arbitration in Latin America and the Caribbean have been significantly less favourable to states than in other regions. LAC countries also stand out negatively for the magnitude of financial damages awarded to investors, with Ecuador being a party to the highest cause awarded in ICSID history, valued at US$1.8 billion, to Occidental Petroleum (Remmer 2019, 797). Argentina, meanwhile, was ordered to pay US$9.2 billion in total for 40 cases decided in favour of private investors (Bárcena et al. 2020, 131). Growing dissatisfaction with BITs and the international arbitration regime has led many countries to seek to reformulate new parameters for foreign investments. Bolivia, Venezuela and Ecuador withdrew from the ICSID convention, revising their existing BITs, with Ecuador going further by creating a Commission for the Global Audit of Investment Treaties and the Arbitration System (Arroyo and Ghiotto 2017, 41–42). Moreover, the government of El Salvador reformed its national investment law after being sued by Pacific Rim Mining to prevent further claims from being brought to the ICSID (Bárcena et al. 2020, 133). UNCTAD (2018) currently identifies a ‘new generation’ of agreements being created, which contain clauses aimed at sustainable development, the preservation of regulatory space by decreasing exposure to international arbitration, and more careful regulations on dispute settlement, by excluding or restricting the investor–state clause to some specific areas (UNCTAD 2018, 5). According to Morosini and Ratton (2018, 4–5), much of the innovation in the international investment regime has been driven by countries of the Global South, among which are some of the countries that make up the BRICS. Brazil drafted a new model of Cooperation and Investment Facilitation Agreement (ACFI, in Portuguese) that limited the definition of investment, excluded investor–state arbitration, and provided for compensation only for direct expropriation (Morosini and Ratton 2018, 18–19). South Africa terminated old investment treaties and revised its domestic law after finding that certain BIT provisions violated its post-apartheid 6 A. SAGGIORO GARCIA AND R. CURTY PEREIRA constitution. South Africa’s new Investment Protection Act of 2015 tends to create a more level playing field between foreign and domestic investors regarding arbitration (Singh 2015). Similarly, India has developed a new BIT model that requires the exhaustion of domestic remedies before resorting to international courts (Morosini and Ratton 2018, 5; Singh 2015). Thus, Brazil, South Africa and India have been pushing for reforms in the international investment regime. In this, they differ from China, which has adapted to the existing regime, maintaining certain flexibility when dealing with different partners (Morosini and Ratton 2018, 18). China is the only BRICS signatory to the ICSID convention, despite having few cases before the court. China has been promoting mechanisms for facilitating (beyond protection) investment through a proposal under the World Trade Organization (WTO) and the Belt and Road Initiative (Slipak and Ghiotto 2019, 48). BRICS investment protection agreements in LAC BRICS as a bloc lacks a common policy towards LAC. An important moment of rapprochement was the Regional Outreach Meeting held during the 6th BRICS Summit in Fortaleza, Brazil, in 2014, which brought together leaders of the bloc, the member states of the Union of South American Nations (UNASUR) and the Community of Latin American and Caribbean States (CELAC) (Zhao and Lesage 2020). During the joint session, the BRICS expressed their support for the South American integration process (Cutrera 2020), as the summit final declaration stated: We reaffirm our support for the South American integration processes and recognize in particular the importance of the Union of South American Nations (UNASUR) in promoting peace and democracy in the region, and in achieving sustainable development and poverty eradication. We believe that strengthened dialogue among BRICS and South American countries can play an active role in enhancing multilateralism and international cooperation, for the promotion of peace, security, economic and social progress and sustainable development in an interdependent and increasingly complex, globalizing world. (BRICS 2014) Notwithstanding the bloc’s support for South American integration and Brazil’s leadership in multiple editions of the Leaders’ Summit, there has been no common space for dialogue between BRICS and LAC.4 Thus, for the purposes of this article, a proper analysis of investment agreements requires the individual treatment of relations between each BRICS country and their counterparts in the region. Figure 2 displays the IIAs between the BRICS and LAC countries in maps. We start with China, with the largest number of agreements and the largest volume of investments, continuing in descending order to South Africa. China is the member of the BRICS with the largest number of investment agreements in the region, reflecting its position as the first country in the world in number of BITs.5 According to Bath (2018), China made concessions within the North–South treaty framework to attract investments and, more recently, negotiate better market access and more protection as a capital-exporting country. This shows that China works within the international investment regime (Bath 2018, 47), distancing itself from the reform agenda carried out by the other BRICS. In LAC, the country maintains 15 BITs and three FTAs (see Table 1). China’s BITs with LAC countries follow the traditional model, with few variations found in the agreements with Mexico, Colombia and Chile.6 These three, however, also have THIRD WORLD QUARTERLY 7 Figure 2. IIAs between BRICS and Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). Table 1. China’s investment agreements in Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). # Type 1 BITa 2 BIT 3 BIT 4 BIT 5 BIT 6 BIT 7 BIT 8 BIT 9 BIT 10 BIT 11 BIT 12 FTAb 13 BIT 14 BIT 15 BIT 16 FTA 17 BIT 18 FTA a Bilateral Investment Treaty b Free Trade Agreement Country Bolivia Argentina Uruguay Ecuador Chile Peru Jamaica Cuba Barbados Trinidad and Tobago Guyana Chile Costa Rica Mexico Colombia Peru Bahamas Costa Rica Status In force In force In force Terminated Terminated In force In force In force In force In force In force In force In force In force In force In force Signed In force Signed in 1992 1992 1993 1994 1994 1994 1994 1995 1998 2002 2003 2005 2007 2008 2008 2009 2009 2010 In force since 1996 1994 1997 1997 1995 1995 1996 1996 1999 2004 2004 2006 2016 2009 2013 2010 – 2011 differentiated BITs with other BRICS countries, indicating that they are the promoters of change in these cases. Chinese BITs protect investments against expropriation, nationalisation or equivalent measures, except in cases of public interest, through legal procedure without discrimination and under compensation. In addition, the free transfer of funds is a standard in Chinese BITs, with exceptions in the cases of Colombia and Chile.7 Regarding dispute settlement, Chinese treaties provide for international arbitration through an ad hoc tribunal based on the ICSID or the United Nations Commission on International Trade Law (UNCITRAL) rules, thus reflecting the same terms as traditional treaties. Finally, China’s BITs with LAC countries do not include social or environmental responsibility clauses, which now exist in some ‘new generation’ agreements. China is still the only BRICS country that is a contracting member of the ICSID, although its companies have low participation in this forum. To date, there has been only one international arbitration case between China and a Latin American country, initiated in 2017. The case concerns a dispute between a Chinese investor, Tza Yap Shum, and the Republic of Peru, in the food manufacturing sector. Mr Shum claimed indirect expropriation through the cancellation of his bank account due to non-payment of taxes. The court ruled in favour 8 A. SAGGIORO GARCIA AND R. CURTY PEREIRA of the investor, ordering compensation of US$780,000 by the government of Peru (UNCTAD n.d.d). According to Red ALC-China, the stock of Chinese FDI in the region in 2019 was US$134.770 billion (Dussel Peters 2020, 6). Brazil, Peru, Chile, Argentina and Mexico together received 81% of total Chinese FDI in the region since 2000,8 with Brazil receiving 36% of total investments (Dussel Peters 2020, 7). Through the Going Global strategy of internationalising its companies, China sought to secure access to natural resource and energy markets (Menezes and Bragatti 2020, 450). According to the China Global Investment Tracker, the energy sector concentrated 57% of Chinese investment stock in the region between 2005 and 2019, which includes investments in both fossil fuels and renewable energy sources. The mining and metallurgy sectors concentrated 28%, and agriculture 4%.9 In the framework of the China–CELAC Forum, the country established its official policy for the region through the so-called ‘1 + 3+6’ strategy. This foresees a cooperation plan put into practice through three mechanisms – trade, investment and credit – in six priority sectors: energy and natural resources, infrastructure construction, agriculture, manufacturing, scientific and technological innovation, and information technology (MFA of China 2016). Trade between China and LAC has grown through demand for raw materials, which marked the period of high commodity prices. In 2017, primary products accounted for 72% of the region’s exports to China (CEPAL 2018). The loans provided by the China Development Bank to the region have been directed primarily to Venezuela, Brazil, Ecuador and Argentina, particularly to the oil and infrastructure sectors (Gallagher and Myers 2020). This dynamic reveals great coordination between China’s main economic cooperation mechanisms and a logic based on unequal and dependent trade and investment relations (Menezes and Bragatti 2020, 450), serving to guarantee China’s access to raw materials and to promote the opening of markets for the sale of high-tech products and services from Chinese companies (Slipak and Ghiotto 2019, 11). As underscored by Gray and Gills (2016, 565), this near-colonial trade pattern between China and developing countries hinders partnerships for development in the Global South. The actions of Chinese companies in primary sectors have also caused new social and environmental conflicts in LAC territories. In another article, we reviewed 57 conflicts caused by Chinese companies in the region (Curty Pereira and Garcia 2021; EJAtlas 2020; FIDH 2019; Martínez 2014; Ray et al. 2015), with the majority concentrated in the energy, mining and infrastructure sectors. Such conflicts tend to oppose the interests of affected populations and environmental conservation advocates, of which indigenous communities, environmental groups, and residents in general are prominent representatives (Curty Pereira and Garcia 2021). In turn, Brazil is a powerhouse within the region, despite its small number of investment agreements. The country has signed 27 BITs and 19 other agreements with investment provisions (UNCTAD n.d.e). Among the BITs, 14 were signed between 1994 and 1999, but were never approved by the Brazilian Congress because some of their clauses were considered unconstitutional. The other 13 make up the new ACFI model and began to be signed in 2015 (Hees, Cavalcante, and Paranhos 2018; Morosini and Xavier 2015). Brazil changed its position throughout the 2000s, when it began to promote its own companies abroad through public funding and a foreign policy focused on South–South relations. Thus, Brazilian multinational companies pressured the government to create a new agreement model that would help to prevent disputes (Morosini and Ratton 2018, 4–5; 18–19). Table 2 shows Brazil’s investment agreements in Latin America. THIRD WORLD QUARTERLY 9 Table 2. Brazil’s investment agreements in Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). # Type Country Status Signed in In force since 1 ACFIa Mexico Signed 2015 2018 2 ACFI Colombia Signed 2015 – 3 ACFI Chile Signed 2015 – b 4 ETEA Peru Signed 2016 – 4 Intra-MERCOSUR Protocol MERCOSUR Signed 2017 2019 5 ACFI Suriname Signed 2018 – 6 FTAc Chile Signed 2018 2022 7 ACFI Guyana Signed 2018 – 8 ACFI Ecuador Signed 2019 – a Acordo de Cooperação e Facilitação de Investimentos [Cooperation and Investment Facilitation Agreement] b Economic and Trade Expansion Agreement c Free Trade Agreement Brazil’s ACFIs with Latin American countries present innovations in relation to the traditional model of BITs.10 These agreements do not incorporate the principle of fair and equitable treatment, despite including the principles of national treatment and most favoured nation. In addition, they exclude the commitment to compensation for indirect expropriation from their scope and establish an institutional governance mechanism for dispute avoidance. This mechanism is composed of a Joint Committee, formed by the governments of the two countries, and an ombudsman, composed of the countries’ Focal Points, which will effectively act in the execution of the agreement, exchanging information, and foreseeing and facilitating the resolution of disputes. One of the ACFIs’ main innovations is the absence of the investor-to-state clause, foreseeing only the dispute between states. Thus, conflicts and disputes caused by a Brazilian multinational in the host state will be extended to the Brazilian state, which must bear the political and economic burden of resolving the conflict. We argue, in this sense, that public and private interests merge and may result in a foreign policy issue (Garcia and Torres 2021). Additionally, ACFIs also innovate by containing corporate social responsibility clauses, which are, however, not binding. The ACFI is thus exemplary of the ‘new generation’ of agreements pointed out by UNCTAD (2018). According to the Central Bank of Brazil, in the year 2018 Brazil’s investment abroad totalled US$378 billion, while direct investment in the country amounted to US$738 billion (BCB 2019). Regarding the operations of multinational companies, CEPAL (2020) and UNCTAD (2020) confirm Brazil’s place as the main recipient of foreign investment in Latin America and the main origin of investments from the region. In LAC, the largest destinations of Brazilian FDI are Chile, Argentina and Uruguay.11 Seven of the top 10 destinations of the largest Brazilian multinationals are Argentina, Mexico, Colombia, Peru, Chile, Uruguay and Paraguay (Barakat et al. 2017, 64). Between 2007 and 2015, the National Bank for Economic and Social Development (BNDES) was the main source of financing for the international projects of Brazilian infrastructure companies. Credit for engineering service exports from Brazilian companies was contracted by Argentina, Costa Rica, Cuba, Ecuador, Guatemala, Honduras, Mexico, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela, totalling US$2.162.728 million (BNDES n.d.).12 However, the political and economic crisis in Brazil since 2015 has led the Bank to suspend financing contracts for construction projects abroad (Carvalho 2018). In addition, conflicts with social actors involving construction companies (such as Odebrecht in Ecuador and OAS in Bolivia), oil and mining companies (such as with 10 A. SAGGIORO GARCIA AND R. CURTY PEREIRA Petrobras in Bolivia and Argentina, Vale in Chile, Peru and Colombia, etc.) have been widely documented (eg Garcia 2015; Articulação Internacional dos Atingidos pela Vale 2021; Delgado 2017; IRLS et al. 2009), leading some analysts to revitalise the category of ‘sub-imperialism’ (Luce 2007; Zibechi 2013). India has 19 BITs with countries around the world and 13 other IIAs (UNCTAD n.d.f), of which six are with LAC countries (see Table 3). Historically, the country has sought to combine foreign investor protection with national development strategies (Nedumpara 2018, 199). However, an arbitration case initiated by the Australian mining company White Industries in 2010 prompted India to review its BITs parameters. While retaining a traditional treaty model, the new Indian BITs exclude most favoured nation provisions and require the exhaustion of domestic courts, aiming to increase its policy space (Nedumpara 2018; Singh 2015). As a result of these changes, since 2015, India has been terminating BITs with countries around the world (Singh and Ilge 2016), including LAC countries, except for its agreement with Colombia. Among the IIAs between India and Latin American and Caribbean countries, there are two economic cooperation protocols, with Mercosur and Chile, aimed at creating a free trade area (UNCTAD n.d.g, n.d.h). Apart from the ACFI with Brazil and the BITs with Colombia and Mexico, India’s investment agreements in LAC follow the traditional model: they include the principles of fair and equitable treatment and most favoured nation, as well as the provision of free transfer of funds.13 In cases of dispute between an investor and the host state, an ad hoc arbitration forum based on ICSID, the Stockholm Chamber of Commerce Arbitration Institute, or UNCITRAL procedures can be established. Despite this, no cases of arbitration between Indian companies and Latin American countries are recorded. According to the Exim Bank of India and the Inter-American Development Bank (IDB), Indian investments in LAC accounted for only 1% of total Indian FDI between 2008 and 2018, totalling US$704 million, of which one-third went to Brazil (33.5%), followed by the Bahamas, Panama and Mexico (Giordano et al. 2019, 20). Other sources estimate, however, that India’s FDI in LAC grew to US$12 billion between 2003 and 2016 because of the investment of approximately 150 Indian companies (Pérez-Restrepo 2017, 194). More recently, in 2020 and 2021, the British Virgin Islands, a fiscal paradise in the Caribbean, featured amongst the main destinations of Indian FDI outflow, accounting for 8% of US$18.6 billion (India Exim Bank 2022, 16). Despite the low volume of FDI, the Exim Bank of India maintained 22 lines of credit in the LAC region, totalling US$301.2 million distributed across six countries: Cuba, Guyana, Honduras, Jamaica, Nicaragua and Suriname (India Exim Bank 2018, 53). In addition, the Indian Ministry of Commerce and Industry has developed a special programme to promote investments in the region, the Focus LAC Program, which is also responsible for Table 3. India’s investment agreements in Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). # 1 2 3 4 5 6 7 8 a Type BITa Framework agreement Framework agreement BIT BIT BIT BIT ACFIb Country Argentina Mercosur Chile Trinidad and Tobago Mexico Uruguay Colombia Brazil Status Terminated In force Signed Terminated Terminated Terminated Signed Signed Signed in In force since 1998 2003 2005 2007 2007 2008 2009 2020 Bilateral Investment Agreement Acordo de Cooperação e Facilitação de Investimentos [Cooperation and Investment Facilitation Agreement] b 2002 2009 – 2007 2008 – – – THIRD WORLD QUARTERLY 11 creating and maintaining preferential trade agreements with Mercosur, Brazil and Chile. In recent years, Indian FDI has gone to the oil and sugar production sectors, mainly in Brazil and Venezuela (CEPAL 2016, 56). Latin American exports to India are concentrated in a few primary products (oil and copper accounted for more than 50% of trade in 2017), while 85% of Indian exports to the region were manufactured goods (Giordano et al. 2019, 15). In turn, Russia entered the international investment regime during the Soviet Union period but accelerated its economic opening throughout the 1990s. Today, the country maintains 79 BITs and six other IIAs with countries around the world, of which six are with LAC countries (see Table 4) (UNCTAD n.d.i). Russia’s BITs with countries in the region follow the traditional model, including fair and equitable treatment; free transfer of resources; the most favoured nation principle; and protection of investments against expropriation, nationalisation, and measures equivalent to expropriation, except in cases of public interest, under the law, without discrimination and with immediate, adequate and effective compensation corresponding to market values.14 The Russian agreements allow arbitration between investors and the state, establishing ad hoc tribunals following UNCITRAL rules. In the case of the agreement with Venezuela, the Stockholm Chamber of Commerce Arbitration Institute is also included. The ICSID is foreseen as a forum only in the agreement with Guatemala. Russia signed the Washington Convention on accession to the ICSID in 1992 but has not enforced it. There are no reported cases of Russian multinationals against LAC countries. Relations between Russia and LAC date back to the Cold War period. However, more recently, the country has employed new rapprochement efforts, such as holding military exercises in Nicaragua and Venezuela and strengthening relations with countries of the Bolivarian Alliance of the Americas (Ellis 2015, 2–6). Between 2000 and 2018, there were 16 visits by heads of state to the region and 26 ministerial visits, with Cuba, Venezuela, Nicaragua and Brazil hosting most of them (Miles and Rosario 2018). Russia plays an important role as an economic partner of countries that suffer from US embargoes, such as Cuba and Venezuela. Furthermore, between 2000 and 2017, the country accounted for about 20% of Latin American arms imports, competing with the US as the region’s main supplier (Gurganus 2018, 9). In 2016, Russian FDI flows to LAC equalled US$10 million, primarily going to Brazil and Mexico (Miles and Rosario 2018, 3). Despite the low volume of investments, the region is strategic for Russia in terms of its energy reserves (SELA 2013; Miles and Rosario 2018). Bauxite mining in Guyana and Jamaica by Russian aluminium producer Rusal was marked by labour conflicts and strikes, as well as tensions with local governments (SELA 2009; Ellis 2015, 45–47). Russia’s financial presence in LAC is limited to a few strategic geopolitical partners, such as Venezuela, Ecuador and Argentina. Venezuela received US$4 billion in credit from a joint Table 4. Russian investment agreements in Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). # 1 2 3 4 5 6 a Type BITa BIT BIT BIT BIT BIT Country Cuba Ecuador Argentina Venezuela Nicaragua Guatemala Bilateral Investment Agreement Status In force Signed In force In force In force Signed Signed in In force since 1993 1996 1998 2008 2012 2013 1996 – 2000 2009 2013 – 12 A. SAGGIORO GARCIA AND R. CURTY PEREIRA Russian–Venezuelan bank initiative to purchase arms in 2012 and 2013, while Ecuador and Argentina were offered financial support from Russia’s Vnesheconombank to the advancement of hydroelectric projects in their territories (Ellis 2015). Nonetheless, Russian credit in the region is very limited, especially when compared to China’s. Finally, South Africa is the member of the BRICS with the least significant presence in LAC. Interestingly, the only South African BIT signed by the apartheid regime was with Paraguay in 1974, under Strossener’s dictatorship (Forere 2018). After the end of apartheid, the country opened its economy and in 1994 it entered the international investment regime. Currently, it has 39 BITs and 11 other IIAs, among which three are with LAC countries (see Table 5) (UNCTAD n.d.j). However, in the recent period, South Africa has terminated treaties and reformed its domestic legislation through the new Investment Protection Act of 2015. That is because traditional BITs were incompatible with the constitutional guarantees of the Black Economic Empowerment Act, which aims to redress racial inequalities by guaranteeing a percentage share to historically disadvantaged black South Africans in companies and their assets. The country was taken to international arbitration by investors who understood that the application of this law would constitute expropriation. After the reform, the new law expands the state’s space for sovereign action by requiring foreign investors to exhaust domestic forums (Morosini and Ratton 2018, 20; Forere 2018). South African BITs with LAC countries follow the traditional investment protection model:15 they provide for free transfer of resources,16 fair and equitable treatment, the most favoured nation17 principle, protection against direct and indirect expropriation except in cases of public interest, under legal procedure, without discrimination and under compensation. All provide for the settlement of disputes between investor and state through international arbitration. The BITs with Argentina and Chile establish the ICSID or an ad hoc tribunal that follows UNCITRAL procedures as possible forums for dispute settlement. The BIT with Cuba provides for submissions to the Court of Arbitration of the International Chamber of Commerce or to an ad hoc tribunal based on UNCITRAL guidelines. There are no international arbitration cases involving South African companies in Latin American and the Caribbean. South Africa reinforces the other BRICS’ tendency to concentrate investments in primary sectors. The main South African mining companies – in particular Minera Gold Fields Peru S.A., a subsidiary of Gold Fields, and AngloGold Exploracion Peru S.A., owned by AngloGold Ashanti – concentrate activities in Peru and Chile (UNCTAD 2012; Minería Chilena 2018). AngloGold Ashanti is the third largest gold mining company in the world and currently has operations in three Latin American countries: Argentina, Brazil and Colombia (AngloGold Ashanti n.d.). In Colombia, the company has a history of conflicts over violations of environmental legislation at La Colosa gold deposit (in Cajamarca), where a plebiscite was called that resulted in the disapproval of the project by the majority of the population (Andrade 2017). Table 5. South African investment agreements in Latin America and the Caribbean. Authors’ preparation based on data from UNCTAD (n.d.b). # 1 2 3 a Type BITa BIT BIT País Cuba Argentina Chile Bilateral Investment Agreement Status In force Signed Signed Signed in 1995 1998 1998 In force since 1997 2001 – THIRD WORLD QUARTERLY 13 In addition to South Africa’s low volume of investment in LAC, we were not able to find information on its financial presence, which indicates that South African banks are either not present or still very scarce in the region. Conclusion In this article, we analysed international investment agreements between BRICS and Latin American and Caribbean countries from an international political economy perspective. We offered a comprehensive overview of BRICS–LAC relations, backed by the triangulation of different methods and a thorough review of peer-reviewed and grey literature. Historically, the international investment regime was created and sustained by the countries of the Global North but, in the recent period, more and more bilateral investment treaties have been signed between developing countries. Among the BRICS, China is now an economic powerhouse and the country with the most BITs in the world. Despite this, Chinese multinationals do not participate to the same extent in the international arbitration system. We have argued that China acts within the current investment regime, adapting the existing rules to its own investment protection needs. In turn, Brazil, India and South Africa have made relevant innovations in the investment regime, by recovering the policy space jeopardised by the previous models. We highlight Brazil’s new cooperation and investment facilitation agreement (ACFI, in Portuguese), South Africa’s new Investment Protection Act, and the new Indian model. Despite these efforts, it is clear that, politically, these countries continue to seek to facilitate the entrance of foreign investments and maintain the credibility and attractiveness of their markets to international corporations. In LAC, a review of 25 years of investment and free trade treaties reveals that these countries have granted extraordinary legal privileges to foreign investors and their home countries, increasing the power of multinational corporations in the region (Ghiotto and Laterra 2020). More recently, some Latin American countries have sought to place limits on the reproduction of the investment regime based on traditional treaties. This is the case for countries such as Chile, Colombia and Mexico, which, even before the recent changes observed in the BIT models, were already able to obtain more restrictive agreements with countries such as China, Russia and India. Other important actions were the process of revision and termination of Ecuador’s BITs and its withdrawal, in 2009 (together with Bolivia and Venezuela), from the Washington Convention that underlies the ICSID, a process which has been reversed in 2021 by the government of Guillermo Lasso. Nonetheless, these initiatives show a reaction to the over-representation of Latin American and Caribbean countries in disputes initiated by multinational companies in international courts of arbitration. Our research has shown that, despite recent changes promoted by South Africa and India in their investment agreement models, Brazil is the only country in the bloc that has truly signed alternative agreements with LAC countries. China and Russia continue to utilise traditional BIT models, while India and South Africa have yet to implement their most recent models in partnerships with countries in the region. Due to these limitations, the changes promoted by Brazil, India and South Africa have yet to cause a significant impact on the investment regime in the region. The extractive and infrastructure sectors are those that receive the most investments from companies from the BRICS and make up the international trade agenda for Latin American countries. As we have shown, the traditional division between producers and exporters of 14 A. SAGGIORO GARCIA AND R. CURTY PEREIRA primary and manufactured products permeates investments and trade between the region and the BRICS, and not only China. Ghiotto (2020, 29) argues that FTAs have deepened the primary-exporter model in LAC as the region remains dependent on the export of primary resources but is deprived of the collection of taxes on its exports when it signs such agreements. In Brazil, the Kandir law, which exempts exporters of raw materials from paying export taxes (benefiting mainly soy and iron ore exporters), is an example of this process. We conclude that LAC–BRICS relations could support the diversification of economic partnerships, with the potential to counterbalance the US presence and neocolonial relations with European countries. However, this does not necessarily result in a new development strategy that succeeds in transforming unequal and dependent relations on the part of Latin American countries. New spaces for social struggles are opening up in the dispute for other forms of development and rights for the populations who live in these territories. Disclosure statement The authors report there are no competing interests to declare. Notes on contributors Ana Saggioro Garcia is Assistant Professor at the International Relations Institute of the Pontifical Catholic University of Rio de Janeiro in Rio de Janeiro, Brazil. She is also Professor in the Social Sciences Graduate Programme at the Federal Rural University of Rio de Janeiro. She has published in the areas of international political economy, critical theory, Gramsci, hegemony, imperialism, multinational corporations and South–South relations. Rodrigo Curty Pereira is a PhD Candidate in Geography at the University of Waterloo in Waterloo, Canada. He has a bachelor’s degree in international relations from the Federal Rural University of Rio de Janeiro. His research interests include critical political economy, political ecology of health, and global health in general. Notes 1. 2. 3. 4. 5. 6. See https://investmentpolicy.unctad.org/international-investment-agreements/by-economy (accessed December 2021). https://investmentpolicy.unctad.org/international-investment-agreements. Notably, UNCTAD’s World Investment Report for the year 2006 had direct foreign investments from developing countries and economies in transition as its central theme. See https://unctad.org/en/Docs/wir2006_en.pdf. We may note that Uruguay joined the BRICS NDB along with Bangladesh, the UAE, and Egypt in 2021 (NDB 2021). Under the current presidency of China, Argentina has made efforts to join the NDB and the BRICS group itself, but the outcome of negotiations is uncertain (Mercopress 2022). China currently has 124 bilateral treaties and another 24 agreements with investment provision. See https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china (accessed December 2021). We analysed China’s BITs with all LAC countries whose treaties were available either in English or Spanish, or both, at https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china (accessed 15 September 2020). THIRD WORLD QUARTERLY 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 15 China’s treaty with Colombia excludes, among indirect expropriation measures, those related to public health, safety and environmental protection. Authors’ own calculations based on Dussel Peters (2020, 7). Authors’ own calculations based on data from China Global Investment Tracker, available at https://www.aei.org/china-global-investment-tracker/ (accessed 26 September 2020). We analysed Brazil’s ACFIs with Chile, Colombia, Mexico, Suriname, Guyana and Ecuador. Calculations based on data from BCB (2019). According to BNDES, in 2003, because of Resolution 44 approved by the Trade Council of Ministers, Argentina, Ecuador, Venezuela and the Dominican Republic had their financing costs reduced, because the norm mitigated the credit risks of operations in the proportion of up to 7 (worst score) to 1 (best score). However, as of January 2018, payment defaults arose for Venezuela (US$374 million) and Cuba (US$62 million) (BNDES 2019). We analysed India’s BITs with Argentina, Colombia, Mexico and Uruguay. We analysed Russia’s BITs with Guatemala, Nicaragua and Venezuela. We analysed South Africa’s BITs with Chile, Argentina and Cuba. Chile’s BIT presents some particularities. The agreement with Chile provides for a one-year restriction on the transfer of invested capital. 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