Rule-Takers or Rule-Makers? A New Look at African Bilateral Investment Treaty Practice

TDM Special Issue on Int'l Arbitration involving Commercial and Investment Disputes in Africa (Forthcoming)

24 Pages Posted: 10 Jun 2016  

Wolfgang Alschner

University of Ottawa - Common Law Section

Dmitriy Skougarevskiy

Graduate Institute of International and Development Studies (IHEID) - Department of Economics, Students; European University at St. Petersburg (EUSP)

Date Written: June 7, 2016

Abstract

Who are the rule-takers and rule-makers in the African BIT universe? Using computational measures of textual similarity this paper provides a nuanced empirical answer to this question. First, we find that African states tend to be rule-takers in North-South relations, yet enjoy greater agency in negotiations of South-South BITs. Only few African countries, however, use their greater say in intra-African negotiations to include public policy exceptions in BITs. Indeed, recent North-South BITs contain more policy space than their Southern counterparts in Africa. Second, rule-makers and rule-takers also exist within the African South-South BIT landscape. Yet, in contrast to North-South relations, negotiation outcomes seem to be shaped more by expert knowledge than by power asymmetries. Powerful states like Egypt fail to dominate negotiations, while small-island-state Mauritius with its strategic investment policy agenda succeeds in setting the terms of investment agreements. This paper thus provides a more nuanced view of the African treaty landscape, points to new areas of research and highlights the importance of technical expertise in achieving coherent treaty networks.

Suggested Citation

Alschner, Wolfgang and Skougarevskiy, Dmitriy, Rule-Takers or Rule-Makers? A New Look at African Bilateral Investment Treaty Practice (June 7, 2016). TDM Special Issue on Int'l Arbitration involving Commercial and Investment Disputes in Africa (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2791474 or http://dx.doi.org/10.2139/ssrn.2791474

Wolfgang Alschner (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Dmitriy Skougarevskiy

Graduate Institute of International and Development Studies (IHEID) - Department of Economics, Students ( email )

Geneva
Switzerland

HOME PAGE: http://graduateinstitute.ch/economics

European University at St. Petersburg (EUSP) ( email )

3 Gagarinskaya Street
St. Petersburg, 191187
Russia

HOME PAGE: http://eu.spb.ru

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