In This Article Africa’s International Investment Law Regimes

  • Introduction
  • General Overview

International Law Africa’s International Investment Law Regimes
by
Won Kidane
  • LAST MODIFIED: 22 April 2020
  • DOI: 10.1093/obo/9780199796953-0209

Introduction

Unified by a long history of a subordinate position within the global economic and political hierarchy, African nations have had a remarkably similar reckoning of international investment laws and institutions. Apart from the incidence of geography, the historical experience and existing economic conditions have allowed an integrated treatment of Africa’s investment law regimes in the literature with some success. The existing writings on Africa and international investment law generally attempt to accomplish two principal objectives: (1) situate Africa in the global and regional international investment legal order, and (2) postulate emerging trends in the governance of Africa’s economic relationship beyond its traditional economic partners. Corresponding to the two general areas, writings on Africa’s international investment law tend to focus on Africa’s historical experience with the treatment of foreign investment at the multilateral level and with its traditional economic partners of the Western world. In this regard, the most important source of materials discussed in the literature relating to the substantive rules comes from the more than 135 international investment law cases involving African states in the investor-state arbitrations constituted under the International Centre for the Settlement of Investment Disputes (ICSID). Such discussions are African, however, inasmuch only as they feature treaties and fact patterns originating in Africa. The more recent literature puzzles over Africa’s circumstances in attracting and retaining foreign investment beyond its traditional economic partners in the West such as China and India, and speculates about the suitability of the traditional rules and institutions for the ordering of intra-Africa and other Africa-related South-South economic relations. Significantly, the Africa-specific literature on international investment law is a critique of the existing rules and institutions and the evaluation of emerging trends. Overall, the general literature in the area of international investment law suggests that Africa-related matters are an integral part of the doctrinal underpinnings, the substantive rules, and dispute settlement mechanisms at the global level. Each major work in the area of international investment law generally profiles African treaties and cases as an essential and inextricable part of the existing and emerging global international investment law regime.

General Overview

Book-length treatment of any aspects of international investment regime specific to Africa is rare. However, almost all notable works in international investment law and dispute settlement cover Africa related issues in remarkable detail, primarily because African states have been active players in the field of investment law and investor-state arbitration in significant numbers with more than 135 International Centre for Settlement of Investment Disputes (ICSID) cases involving African states. The most notable of these major works are The Oxford Handbook of International Investment Law (Muchlinski, et al. 2008), Dolzer and Schreuer 2012, and Schreuer 2001. At the more general doctrinal level, Sornarajah 2017 offers a special focus on southern perspectives. Elias 1988 provides general theoretical context of Africa’s position in the development of international law. The most recent and most notable Africa-specific work is Adeleke 2018, which focuses on policy, human rights, and dispute settlement. Of the very few Africa-specific books on investment law, Fru 2011 deals with the economic aspect. Others focus on investment dispute settlement as a part of general discussions on international dispute settlement, such as Bosman 2013. Hindelang and Krajewski 2016 and Sauvant and Sachs 2009 include specific commentary assessing international treaties in the African context.

  • Adeleke, Fola. International Investment Law and Policy in Africa: Exploring a Human Rights Based Approach to Investment Regulation and Dispute Settlement. Abingdon, UK: Routledge, 2018.

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    Explores the human rights dimension of international investment treaties with a focus on African bilateral and regional agreements. Heavier on the side of dispute settlement and policy than on substantive rules. It is notable for the breadth of its coverage rather than its depth. Although relatively brief, it is the only book-length treatment of African international investment law, dispute settlement, and policy.

  • Bosman, Lise. Arbitration in Africa: A Practitioner’s Guide. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2013.

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    A collection of country-specific essays with each containing a section on investor-state arbitration. Practice-oriented guide with useful information on veracious African jurisdictions. It also contains a list of all African bilateral investment treaties (BITs) and also a list of all ICSID Africa cases up to 2013.

  • Dolzer, Rudolf, and Christoph Schreuer. Principles of International Investment Law. 2d ed. Oxford: Oxford University Press, 2012.

    DOI: 10.1093/law/9780199651795.001.0001E-mail Citation »

    Heavy on historical context and core substantive rules, it features African treaties and cases as an integral part of international investment law generally without any geographic focus. Very good for core substantive concepts such as fair and equitable treatment and expropriation.

  • Elias, Taslim O. Africa and the Development of International Law. The Hague: Martinus Nijhoff, 1988.

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    Written closer in time to the gaining of independence of most African countries and the establishment of institutions such as ICSID and the African Development Bank, it provides an excellent historical and theoretical context in relation to Africa’s position under international law generally and includes a specific chapter on investment law (pp. 237–247). Excellent for historical and theoretical background research.

  • Fru, Valentine Nde. The International Law on Foreign Investments and Host Economies in Sub-Saharan Africa. Münster, Germany: Lit Verlag, 2011.

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    Beyond its description of the general framework of international investment law and relevant institutions, this work shows its interaction with the domestic investment regimes of selected sub-Saharan African countries, mainly Cameroon, Kenya, and Nigeria. It also contains useful discussion of some of the institutional and substantive features of international investment law.

  • Hindelang, Steffen, and Marku Krajewski, eds. Shifting Paradigms in International Investment Law. New York: Oxford University Press, 2016.

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    Contains several chapters by independent authors, taking a developmental approach. It also includes a chapter specific to South Africa’s attempt at resolving the dilemma of investment treaties granting broader protection than permitted under domestic law. One of the best descriptions of the genesis of South Africa’s decision to move away from BITs. (See the chapter by Sean Woolfrey, pp. 266–290).

  • Muchlinski, Peter, Federico Ortino, and Christoph Schreuer, eds. The Oxford Handbook of International Investment Law. New York: Oxford University Press, 2008.

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    The thirty-one chapters contributed by various authors provide a comprehensive coverage of foundational issues, substantive issues, and procedural issues. In each one of the three parts, African cases and Africa-related matters make an integral part.

  • Sauvant, Karl P., and Lisa E. Sachs, eds. The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows. New York: Oxford University Press, 2009.

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    In this collection, around sixteen out of twenty-four essays assess the promise of investment treaties. Written by leading academics and practitioners, it is probably the only volume where this number of commentaries, including commentaries about African states, discuss the effectiveness of investment treaties. An example of such studies that test the impact of BITs on investment attraction including some African countries is found in pp. 225–294.

  • Schreuer, Christoph. The ICSID Convention: A Commentary. New York: Cambridge University Press, 2001.

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    Provides extensive commentary on the ICSID Convention, which came into force largely because of support from African nations, with the first fourteen ratifications coming from Africa.

  • Sornarajah, Muthucumaraswamy. The International Law on Foreign Investment. 4th ed. Cambridge, UK: Cambridge University Press, 2017.

    DOI: 10.1017/9781316459959E-mail Citation »

    This is one of the leading critiques of the international investment law regime, taking a public international law and policy perspective. It is the leading book about the southern dimension featuring African treaties, institutions, and cases as an integral part of the general norms discussion. In the overall balance of things, doctrinally, it is the best articulation of Africa’s predicaments, although none of the discussions are specifically identified as such.

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