Africa’s International Investment Law Regimes

Abstract

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.