Bilateral Investment Treaties and Regional Investment Regulation in Africa: Towards a Continental Investment Area?

Páez, Laura

doi:10.1163/22119000-12340046

Cited by 3 publications

(2 citation statements)

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“…However, most of the IIAs signed by African states were with non-African states (Paez, 2017) [18] and because of the imbalance of economic power, African states have largely been takers of model IIAs from their counterparts. Furthermore, African arbitrators have been largely under-represented in the investment arbitral "club".…”

Section: Contributions At the Global Levelmentioning

confidence: 99%

Africanisation of international investment law for sustainable development: challenges

Laryea

Fabusuyi

2021

JITLP

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Purpose The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent. Design/methodology/approach The study analyses the move by African countries to “Africanise” IIL by incorporating specific and innovative provisions and features in their international investment agreements (IIAs) for the benefit of African economies. This is evidenced by provisions in African regional investment instruments such as the 2007 Common Market of Eastern and Southern Africa Investment Agreement and the 2008 Economic Community of West African States Supplementary Act on Investments produced by the different African regional economic communities (RECs), new-generation IIAs such as the 2016 Nigeria-Morocco IIA and the China-Tanzania IIA and the African Union’s Pan-African Investment Code 2016. The common features of these instruments include linking the objective of investment promotion and protection to sustainable development; excluding portfolio investments; including provisions on investor-obligations; and reserving wide scope of regulatory space for host-states, including the ability to take emergency measures without incurring liability to investors. Some of these provisions are rare in IIAs. Findings The study finds that, while the efforts are commendable, there are real challenges. Firstly, there are inconsistencies in the regimes existing on the continent due to differences in the contents of the international investment instruments promulgated by the different RECs, and also differences in the content of IIAs signed by some member-states of the RECs with countries external to the RECs. Secondly, there are governance gaps and a lack of enforcement in practice, which would undermine the effectiveness of the laws being forged. Thirdly, the Africanised IIL alone would not attract investment if other important determinants, such as critical infrastructure, remain lacking. Fourthly, there is under-representation of Africa in the arbitral institutions that develop and enrich the laws, which, if it continues, would undermine the effectiveness of the Africanisation provisions being included in IIAs. Research limitations/implications While the research discusses both law and policy, more is discussed of the law, owing to space limitation. Practical implications It is anticipated that this research will impact the content of the investment protocol under the African continental free trade area and beyond and will prompt review of existing and future IIAs by member states of the various RECs to align them for consistency. It is also hoped that this research will impact the review of various investment instruments of the RECs with the aim of harmonising them. It is further hoped that this research would contribute to addressing the challenges that militate against the achievement of the goals of Africanising ILL for sustainable development. Originality/value The study is original. It has not been published previously and the authors have found no existing publication that addresses the issues covered in this study.

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Section: Contributions At the Global Levelmentioning

confidence: 99%

Africanisation of international investment law for sustainable development: challenges

Laryea

Fabusuyi

2021

JITLP

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“…Despite the burgeoning interest in analysing the impact of BITs on FDI, very few empirical studies on their effectiveness have been conducted in Africa, with a few having a legal background. Páez (2017) reviewed BITs signed by African countries and discussed regional investment regulations within the context of harmonizing investment regimes to establish that the African continental free trade area would be a viable alternative to challenges with current investment regimes. A survey by the Economic Commission for Africa (2016) reported that investment treaties do not attract much FDI since most investments came from countries without BITs.…”

Section: Theoretical Underpinnings and Empirical Literaturementioning

confidence: 99%

Impact of bilateral investment treaties on foreign direct investment in Africa

Beri

Nubong

2021

African Development Review

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Africa continues to face several challenges that make its share of global foreign direct investment (FDI) to be infinitesimal. These include the prevalence of fragmented investment policies, information asymmetry and high sovereign risk. Bilateral investment treaties (BITs) can help overcome some of these encumbrances by signalling the host country's willingness to protect FDIs. This study hypothesizes that BITs can play an augmentation role and investigates their impact on FDI attraction using data across 48 African countries from 2000 to 2018. In contrast to the previous theoretical and most empirical literature, results based on the two-step systems generalized method of moments (GMM) show that ratified BITs do not perform a significant role in FDI attraction. Nonetheless, the additional analyses allowed us to make some rather non-trivial conclusions about the possible effects of BITs concluded with France on FDI. The study recommends that countries should participate in some BITs, although governments need to be cautious when tying their hands with BITs because of susceptibility to damaging litigations that sometimes follow, irrespective of the less than commensurate benefits.

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The Growing Tendency of Including Investment Chapters in PTAs

Usynin

Gáspár-Szilágyi

2018

Netherlands Yearbook of International Law

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Bilateral Investment Treaties and Regional Investment Regulation in Africa: Towards a Continental Investment Area?

Cited by 3 publications

References 0 publications

Africanisation of international investment law for sustainable development: challenges

Africanisation of international investment law for sustainable development: challenges

Impact of bilateral investment treaties on foreign direct investment in Africa

The Growing Tendency of Including Investment Chapters in PTAs

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