Petrobras in Bolivia: Is There a Rule of Law in the 'Primitive' World?

Global Private International Law: Adjudicating Without Frontiers (Horatia Muir Watt & Diego Fernández-Arroyo eds., Edward Elgar Publishing Forthcoming)

11 Pages Posted: 17 May 2018

See all articles by Fabio Costa Morosini

Fabio Costa Morosini

Universidade Federal do Rio Grande do Sul (UFRGS) - Faculdade de Direito

Michelle Ratton Sanchez Badin

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

Date Written: May 3, 2018

Abstract

What might lie behind a heterodox approach to legal disputes arising in the struggle for energy resources? Here, the State parties turn to bargained solutions, instead of reaching for remedies available in contracts and in investment treaties, as suggested by the mainstream literature on rule of law of the investment regime. The First Part of this case-note explores the main regulatory instruments put in place between Brazil and Bolivia in relation to the regulation of hydrocarbons, which include documents as diverse (from a normative perspective) as memorandum of understandings, gentlemen’s agreements, standard treaties, contracts and exchange of diplomatic letters. Part II explores the political momentum in Bolivia that gave rise to a referendum and later the Decree expropriating foreign corporations operating in the country, and introduces the legal remedies available to Brazil and Petrobras. Part III explores the aftermath of the case, describing the new contractual arrangements between Petrobras and YPFB and theorizing on the rule of law format that has employed through public-private negotiated processes. The case is concluded with a word of caution: mainstream explanations of what constitutes winning a case in international law and the legal processes involved therein need to be reconceptualized to include more holistic approaches and alternative legal formats.

Suggested Citation

Morosini, Fabio Costa and Sanchez Badin, Michelle Ratton, Petrobras in Bolivia: Is There a Rule of Law in the 'Primitive' World? (May 3, 2018). Global Private International Law: Adjudicating Without Frontiers (Horatia Muir Watt & Diego Fernández-Arroyo eds., Edward Elgar Publishing Forthcoming), Available at SSRN: https://ssrn.com/abstract=3173139

Fabio Costa Morosini

Universidade Federal do Rio Grande do Sul (UFRGS) - Faculdade de Direito

Av. João Pessoa, 80.
Porto Alegre, Rio Grande do sul 90.040-000
Brazil

Michelle Ratton Sanchez Badin (Contact Author)

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

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