The Reform of the International Investment Regime: An African Perspective

Abstract

The international legal framework for investment in Africa is complex, consisting of a large number of bilateral investment treaties (BITs) and regional investment agreements. This is in addition to a number of non-binding regional investment instruments and models that influence African countries' investment policy directions. Looking at the numbers, African countries have concluded over 860 BITs of which 160 are intra-African treaties. This represents around 28 percent of the BIT universe. For over 50 years African countries have been signing BITs that have core elements developed by third countries. Little attention has been given to the implications of these treaties on African countries' right and duty to regulate investment in their territories. The result is a web of legally binding and broadly formulated commitments on investment protection. Today, African countries are taking a more active approach in the formulation of their international investment commitments at the national, bilateral and regional levels. Africa is becoming a laboratory for innovative and sustainable development-oriented investment policymaking. While these reform efforts occur in parallel and sometimes overlap with one another, they all converge in their attempt to formulate a new approach to investment policies that aims at safeguarding the right and duty of African countries to regulate and to reflect emerging sustainable development imperatives. The challenge remains in the existing stock of outdated African BITs and in the investor-State dispute system. Tribunals have broadly interpreted BIT commitments in ways that were not foreseen by African countries. The system that was originally developed to foster legal predictability in investment relations between countries has today become a source of legal uncertainty, debate and controversy. So far, African countries have been observing proposals and discussions for the reform of the ISDS system, including through the establishment of a Multilateral Investment Court (MIC) from a distance. They have been allowed to raise concerns, propose ideas and suggestions, but were not included in the original construction of the concepts and structures of any of the proposed solutions.