TTIP, CETA, AND THE LAND: ON THE EFFECTS OF INVESTMENT TREATIES FOR THE REAL ESTATE SECTOR IN AFRICAN EMERGING ECONOMIES

Abstract

“Caveat real estate investor”: The currently negotiated Transatlantic Trade and Investment Partnership (TTIP) represents 60% of global GDP and 850 million consumers (and potential investors). The German government is – even after the 14th round of negotiations which ended on 15th of July 2016 – a key advocate in favor of TTIP within the negotiation process between the European Commission and the US Administration. A core element of TTIP is the protection of property and investment expectations which are enforced by mechanisms such as bidding procedures. Investment (mirrored by the “I” in TTIP) protection is the raison d´ etre of the treaty as the new potential transatlantic corporate bill of rights. Originally designed as an extraterritorial, geo-strategic, and extrajudicial instrument to eliminate trade restrictions and to invent global standardization processes, TTIP could lead to diversified real estate investments. TTIP is a “game changer” such as NAFTA, but with overwhelming geostrategic implications since the EU and the US harmonize their trade and investment preference schemes for sub-Saharan Africa. Either as part of or as a complement to their partnership pact (Hamilton and Blockmans 2015), leading to harmonized public procurement for building construction services, land policies, land management structures, and monopolized landownership regimes in the member states. Can land policy under the influence of TTIP prospective be interpreted as a sub-category of investment planning rather than a foresighted, comprehensive spatial planning or as a vehicle of (just) managing real estate asset investment?dispute settlement tribunals and litigation, with the possibility to avoid interventions of national governments and courts. Domestic constitutional courts are avoided by investors and the ability is given to keep negotiations, investment decisions, arbitration cases and disputes over the violation of the fair and equitable treatment standard as a secret.Unlike yet undisputed Bilateral Investment Treaties (BITs) and the TTIP-sibling CETA, the transatlantic trade and investment partnership is unique in respect of the competency to “overrule” national laws and to introduce standards, norms and regulations in favor of regulatory convergence to the detriment of national parliament’s legislation and the democratic legislative legitimacy. TTIP is not a “carte blanche” for undisturbed investments in Europe, the United States, and in emerging economies (Thiel 2016). However, there are challenges and institutional changes for the land policies in all TTIP member states if the free trade agreement will be ratified. Nowadays, real estate development has to be conceived of in a complex and contemporary fashion. If TTIP comes into force, it will make no sense (anymore) to have diverse and differing access arrangements for companies from emerging countries such as Africa and Asia investing in the EU and the US – and vice versa.Indeed, “law and land matter”, more than ever. There should be no illusions about the difficulties involved in achieving a global treaty or an “open architecture” such as TTIP. A clash of norms, property solutions, and the invention of indirect expropriation can be foreseen if the investment treaty comes into force in Europe and the US. TTIP is seen as a “platform” (Froman 2014) and will also likely influence emerging economies in Africa. Thus, TTIP is far more than a WTO+ agreement; it might bring fresh air into the Doha round, and represents the third generation of investment treaties that include arbitration and investor-state-dispute settlement. TTIP could create a new (global) legal order that is autonomous in relation to domestic law, to its legislative production processes, and their democratic legitimacy. Arbitration councils are seen as “parallel justice in the name of money”. CETA and TTIP are unique due to their binding for the Member States, especially the obligation of decisions made by