Canadian Investment Treaties with African Countries: What Do They Tell Us About Investment Treaty Making in Africa?

Abstract

Between 2013 and 2015, Canada signed nine (9) bilateral investment treaties (BITs) with countries in Africa, making Canada one of the most active participants in BIT negotiations on the continent. This paper demonstrates that Canada was remarkably successful in imposing its model investment treaty on its African partners. Canada’s success might be considered surprising in light of several factors that should have encouraged African countries to be more aggressive in asserting their own priorities in BIT negotiations. The increasing number of highly public Investor-state arbitration cases have made clear the strong binding character of BITs compared to other international obligations and the corresponding need for host states to ensure that treaties reflect their own investment policy priorities. In seeking to do so, African countries would have been able look to African regional initiatives, such as the COMESA Investment Agreement and the SADC Model Bilateral Investment Treaty for expressions of made in African investment policies. Innovations from developed country practice have been incorporated in these initiatives but so have a variety of distinctive features. African negotiators would also have had the benefit of the substantial work done by UNCTAD and others to promote understanding of investment treaties and to provide options for new forms of international investment rules to make BITS more supportive of sustainable development, especially in developing countries. Despite stronger incentives for African countries to assert themselves in BIT negotiations and more resources for them to draw on, however, recent BITS with Canada suggest that political and economic power continue to define the outcome of negotiations.