Promoting Equality, Black Economic Empowerment, and the Future of Investment Rules

South African Journal on Human Rights, Forthcoming

40 Pages Posted: 23 Mar 2010

See all articles by David Schneiderman

David Schneiderman

University of Toronto - Faculty of Law

Date Written: March 16, 2010

Abstract

It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This paper explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa’s plan to generate a new black middle class via a program of Black Economic Empowerment, it turns out, was a contributing factor to the scuttling of treaty negotiations. It is suggested that powerful OECD states such as the US are less likely to tolerate divergence from their model of investment protection even where divergence arguably is mandated by constitutional commitments to the promotion of equality elsewhere.

Keywords: international investment law, equality promotion

Suggested Citation

Schneiderman, David, Promoting Equality, Black Economic Empowerment, and the Future of Investment Rules (March 16, 2010). South African Journal on Human Rights, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1572885

David Schneiderman (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-2677 (Phone)
416-978-7899 (Fax)

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