Dispute Resolution in the AfCFTA Investment Protocol: a Preliminary Assessment and Proposal for Business and Human Rights Arbitration

Abstract

Abstract This paper examines whether the Investment Protocol to the African Continental Free Trade Area (AfCFTA) Agreement aligns with international human rights law’s (IHRL) standards on the right to equality, non-discrimination, and access to an effective remedy. It argues that the Protocol’s dispute resolution model, which tilts towards ISDS, is incompatible with IHRL. This paper recommends incorporating the Hague Rules on Business and Human Rights Arbitration (Hague Rules) into the Protocol to create an IHRL-compatible dispute system, especially regarding enforcing human rights, environment, and climate obligations against investors and states. As African countries finalize the annex to the Protocol, they must replace ISDS with a BHR Arbitration framework as the dispute settlement regime within which investment players must enforce their rights.