Traditionally, transnational investments are the economic field in which consensus for legal standards is the most difficult to achieve. The efforts for construing multilateral legal basis for investments have failed compared to the achievements relating to international trade law. WTO, for example, has ruled investments to the point that they are related to trade in the Agreement on Trade-Related Investments Measures (TRIMs). The consequence is that bilateral treaties – known as the Bilateral Investments Treaties (BITs) or by other nomenclatures – reflects the wide accepted practice to govern investments’ relations. BRICS’ countries have resorted to this sort of treaties, mostly after 1990’s. In case of Russia and India, it is said that those treaties have been profitable to revert the protectionist pattern of previous period. BITs are also present in Chinese policies, in which south-to-south feature – characterized by the submission of investment’s relations to the host state’s legal order – is regarded to represent its difference to western standards. In case of Brazil, the Argentinian crisis has led the country to not ratifying the BIT’s signed in 1990’s.
Currently, Brazil has begun to conclude other forms of treaties aimed to fix bilateral legal standards. In case of South Africa, there was a first generation of BITs concluded with the greater economic powers, containing draconian provisions that was contrary to South African’s Constitution, leading the country to terminate the said generation of treaties and to enact national legislation addressing investments’ relations.Although investment’s relations are crucial to all the five BRICS’s economies, the group has not established a common position over the matters usually covered by investments’ protection treaties, such as the standards of compensation in case of expropriation, national treatment, most-favored nations (MFN) clause or if the protection comprises the measures taken before and after investment’s entrance, even if those contends are verified in their bilateral treaties.
However, since 2015, BRICS’ countries have prepared common economic strategies, announcing the major desiderata of economic policies to be held by the group. Investments are concerned in those documents, mostly to proclaim transparency and to facilitation in administrative procedures as a way to improve cooperation. In the Strategy for BRICS Economic Partnership 2025, dated of November 2020, it has been affirmed some goals – much of them already presented in the previous versions – such as the enhancement of investments to foster industrial development, the promotion of financial instruments for public-private partnerships, the improving of competition and the attraction of investments in infrastructure projects by resorting to New Development Bank instruments. BRICS’ economic strategies incorporates the group’s way to consolidate their joint position: far from directly questioning all the traditional solutions coming from developed countries’ intelligibility, which would hardly lead to a consensus within the group, it has been guided by creating formulas for increasing cooperation among the five economies. Investments’ policies would be touched by virtue of straightening cooperation, comprising the relevant activity of financing projects in infrastructure as a mechanism for consecrating industrial policies.It refrains from adopting a one-size-fits-all policy and most of joint visions are inclined to reaffirm national sovereignty, focused in expanding the fields of cooperation as a tool to consolidate BRICS’ position in the world.