Reclaiming African Agency: The Right to Regulate, the Investor-State Dispute Settlement and the 'Africanisation' of International Investment Law

Abstract

The paper explores the idea of “Africanisation” of the International Investment Law based on some recent instruments adopted by African States: The Pan-African Investment Code (PAIC), the Economic Community of West African States Common Investment Code (ECOWIC), the Southern African Development Community Protocol on Finance and Investment (SADC FIP) Annex 1 and the Morocco-Nigeria BIT. Taking the Right to Regulate as a starting point, it traces the historical power imbalances, bias of the existing instruments towards large investors, flaws of the ISDS system and the regulatory chill. Putting the analysed instruments in the perspective of global trends, the paper outlines three dimensions of Africanisation: the reform of the substance of investors’ guarantees, their interpretation and enforcement, and – most importantly – the restoration of African agency.

Keywords: International Investment Law - Bilateral Investment Treaties - Right to Regulate - ISDS - Pan-African Investment Code - ECOWAS Investment Law - SADC Finance and Investment Protocol - Morocco-Nigeria BIT - Regulatory Chill - Fair and Equitable Treatment