The international law framework for foreign investment protection: an analysis of African treaty practice

JX International law

Lebero, Richard Karugarama ; Tams, Christian J. T.

University:University of Glasgow

Department:School of Law

关键词: Investment law, international law, dispute resolution, investor, arbitration;   

Others  :  http://theses.gla.ac.uk/3833/1/2012LeberoPhD.pdf

来源: University of Glasgow

【 摘 要 】

Traditionally, African states have played an active and relevant role in the formulation and development of international investment law. Generally, the contribution of African states is demonstrated through the active participation of African states in deliberations of the Non-Aligned Movement, the role of African states in the creation of specialized institutions such as UNCTAD and the strategic use of numerical strength by African states to sponsor numerous United Nations Resolutions. During the epitome of Africa’s active participation, African states aggressively resisted the internationalization of foreign investment rules. However, the practice of African states appears to have changed through the conclusion of BITs containing far-reaching treaty provisions.On the basis of the foregoing, the thesis reviews the types of BITs concluded by African states with the objective of establishing the investment treaty practice of African states. In so doing, the thesis examines whether African treaty practice conforms or differs from general investment law. While reviewing the treaty practice of African states the thesis also explores the extent to which the emerging investment treaty practice interferes or restrains legitimate policy making of African states. This thus raises awareness to (i) African specific concerns with respect to the international law of foreign investment (ii) the controversy entrenched in substantive treaty standards (iii) the suitability of treaties concluded by African states and (iv) the possibility of drafting more acceptable rules that balance the interests of African states vis-à-vis interests of foreign investors.The thesis argues that there has been a paradigm shift in the investment treaty practice of African states. Specifically, the present treaty practice of African states suggests that African states have retreated from previously held positions augmenting for state sovereignty to a more peculiar position of acquiescence. Broadly, the current state of African investment treaty practice is all surprising when contrasted with the fierce resistance African states mounted against the internationalization of foreign investment rules in the last century. The thesis demonstrated the extent to which African treaty provisions restrain legitimate policy making and suggests how African states can contribute to the further development of international investment law.