Analysis

While procedural reforms are important, substantive reform should be foregrounded. If substantive reforms cannot take place then African states should exit the ISDS scene.

It is a special day when open scepticism by some African states towards investor-state dispute settlement (ISDS) is likened to hegemony. This characterization suggests that critical voices, once banished to the outskirts of ongoing discourse tabling reforms to ISDS in particular and to international investment law (IIL) more generally, now occupy the center of action and claim the mantle of thought leaders. But instead of cherishing this potential turning point for international law development by African states, we are urged to deny and disregard the views from Africa.

In the opinion of this contribution, African States must be more radical in their approach to investment treaty and ISDS reforms. First, they must retain the role of domestic courts in the resolution of investment disputes in line with their national constitutions. Second, where the case for an international dispute settlement mechanism is made, they must consider a state-state trade and investment dispute settlement bodies at the regional and continental levels for all transnational business disputes. Appeals from domestic courts could lie before regional appellate bodies and from a regional appellate to a continental dispute settlement body. This should provide assurance to investors and other business entities that their disputes can and must be resolved within the African continent.

If Africa is genuinely interested in the reforms of ISDS then the words of the Kenyan delegation at the UNCITRAL working group must be our yards stick; the desired outcome will only be achieved when we begin to consider the substantive issues in an open, frank, free, and transparent manner, noting the need to fast track the conclusion of a holistic reform process of the ISDS. Perceptions and plausible folk theories aimed at nothing but creating hegemony in ISDS must be shunned. My crystal ball tells me that ISDS is here to stay, thus we must make no mistakes, but shape ISDS to suit our future interests.

We are excited about our forthcoming symposium which centres the voices of amazing scholars from the Global South on the Investor-State Dispute Settlement Reform.

On March 9 2018, the African Union Ministers of Trade approved the Declaration establishing the Agreement establishing African Continental Free Trade Area Agreement (AfCFTA); a move that marked the creation of the largest Free Trade Area in the World. The Agreement seeks to create a single market for goods, services and movement of persons and investment among African countries thereby fostering intra-African trade, facilitating structural transformation of African economies and promoting sustainable and inclusive socio-economic development across the African continent. Whether this would turn out to be a significant positive development within the continent may largely depend on whether the broader issue is addressed- The continuous inclination of African States to explore the forest rather than tend the garden.

This Indaba focuses on Trust Funds, a development finance vehicle, and in responding to Global Health challenges.

This article will briefly examine this dynamic across three interconnected dimensions:  (1) flexibility and innovation in IEL agreement models, with a focus on trade agreements, that better integrate economic and social development goals and allow parties to adapt to new circumstances or phase in commitments on a more incremental basis; (2) flexibility in implementation of trade disciplines and agreements; and (3) legal and regulatory innovation that can both define and flow from IEL agreements.  These three dimensions take into account both treaties themselves and how they relate to changes in law and regulation in practice, drawing a link between international agreements and their operation that is particularly important in times of change or uncertainty.  In assessing dimension three, legal and regulatory innovation, which has been a focus of my work over the past decade,

This webinar will focus on what possible directions what the ideal paths lie for a US/Kenya FTA that will benefit Kenya in all the areas it is negotiating with the United States. The experts leading the discussion will consider what constraints and possibilities the negotiating framework in the United States means for Kenya’s goals in the negotiations. In addition, the experts will consider what lessons Kenya can learn from the United States, Mexico and Canada, (USMCA), Free Trade Agreement and how those lessons can translated into positive outcomes for Kenya.

In fulfilling this 'global' role, I highlight a growing propensity of sub-national governments to challenge the status quo. More importantly, I argue that as the intermestic nature of trade and investment norms are becoming more evident, the COVID-19 Pandemic offers us an opportunity to reflect on the changing role of sub-national governments as activists and sites of resistance against inequalities in international trade and investment rules.