Analysis

The Analysis Section of Afronomicslaw.org publishes two types of content on issues of international economic law and public international law, and related subject matter, relating to Africa and the Global South. First, individual blog submissions which readers are encouraged to submit for consideration. Second, feature symposia, on discrete themes and book reviews that fall within the scope of the subject matter focus of Afronomicslaw.org. 

Book Symposium Introduction: South-South Migrations and the Law from Below: Case Studies on China and Nigeria

International court decisions, the corruption of the elite in the Global South, and the refusal of states to uphold their obligations towards people who are excluded from the privileges of citizenship shape how migrants experience law, as well as how they forge their paths to justice, recognition, and access. This book and symposium contribute to efforts to understand and document how international law impacts migrant communities, but also how these communities fill the lacunae created by law and migrant status through their acts of contestation and innovative approaches. It delves into the evolving approaches to migration and international obligations in the two states as they face new migration-related challenges.

Good Governance, People-Centeredness and Transparency on the Spot: Somalia's Mysterious Journey Towards EAC Membership

This analysis dives deep into the Somalia's admission to the East Africa Community (EAC), with the objective of dissecting the admission procedure and analyzing Somalia's Accession Treaty, while scrutinizing the EAC Verification Mission Report. It was noted that while the EAC Treaty declares key principles like good governance, people-centeredness, transparency, and democracy, the specific procedures and rules that it provides for, do not do justice to those principles. This blog therefore, calls for a reform of the EAC institutions by moving the institutions further away from elitism and bureaucracy and bring it closer to the people-centeredness envisaged by the Treaty.

Book Review: Sixty Years after Independence, Africa And International Law: Views from a Generation

This long-awaited book provides a fresh view of how international law is forged, implemented and practiced in Africa, offering a global vision of the position that the African continent presently occupies in the international legal order. In addition to some contributions by European authors, the book mostly gathers young African scholars (including the editor, one of the most promising African international lawyers of our times) who consider different aspects of international law.

Nigeria v P&ID and its Effect on UNCITRAL Model Law Arbitration

Justice Robin Knowles’ decision in the Nigeria v. P&ID case has received, rightly so, its fair share of international attention from arbitrators, scholars, legal practitioners and commentators alike. The decision has had a seismic effect, if not drawing significant attention, on the international arbitration landscape, for two reasons. Firstly, while the subject award is not the first to be set aside on account of fraud and/or breach of public policy of the seat of arbitration, such decisions are rare and far in between. One would have to go back years, if not decades, to find an award set aside on these grounds. Secondly, the decision has significantly redefined arbitration as we understand it, shaking it to the core, reigniting discussions on its viability and suitability, particularly in matters regarding investor-state disputes.

The Proposed Multilateral Investment Court vis-a-viz sub-African Investment Interests for the settlement of International Investment Disputes

Globalisation of commercial activity extends into international investments, evidenced by over 2,500 bilateral investment treaties (BIT) or International Investment Agreements (IIA) in the international investment regime. Within these BITs is an embedded Investment State Dispute Settlement (ISDS) system executed through an Arbitration Mechanism. The ISDS system serves as a dispute resolution tool for achieving the purpose of the IIA. The purpose of the IIA is for the protection of foreign investment from the harmful policies and governance of host states. In addition, many IIAs contain certain common standards and principles that regulate the investment relationship, such as the notorious fair and equitable treatment (FET), stabilization clauses, and so on. Thus, the overarching aim behind the norms and principles of international investment management is the creation of a system of legal safeguards against the actions of the host states. This simplistic paradigm of international investment law regime has become increasingly problematic due to the expansion and inclusion of various indirect stakeholders in the investment agreements, the growing recognition of public socio-economic realities like regulatory rights, and development rights, that are being pushed for larger consideration from ignored stakeholders mostly like the public.

The AfCFTA’s Digital Trade Rules are Not Fit for Africa

African heads of state are slated to meet this weekend for the 37th Ordinary Session of the Assembly of the African Union and they could be prompted to make an unforced error that could weigh heavily in the continent’s plans to promote digital industrialization and the bridging of the digital divide.

Another blow to ECOWAS’ regional governance architecture….?

As has previously been noted, unconstitutional change of government by other means have led the bloc - and the African Union - to where we are today by undermining both continental and regional governance agendas. If ECOWAS really wants to be serious about governance going forward, it needs to put aside meaningless bluffs, and instead focus on cleaning house, both by updating and refining its instruments and taking a firmer stand against all forms of unconstitutional changes of government. 

Towards an effective and efficient Multilateral Investment Court in Sub-Saharan Africa: Combating Corruption.

Although the problem of corruption is widespread, in Sub-Saharan Africa, corruption is endemic. There is surmounting evidence that corruption is rapidly impairing political, economic and social development in the Sub-Saharan region of Africa. The effects of corruption on economic growth and economic efficiency have discouraged foreign investment in that part of the African continent. Given the prevalence of corruption, the establishment of a Multilateral Investment Court (MIC) would be noble and timeous in Sub-Saharan Africa. The MIC would offer a platform for a strong dispute-resolution mechanism in dealing with corruption, and this would be mutually beneficial to foreign investors and Sub-Saharan African states. Foreign investors need to hedge their investments and the African states need foreign investment for their economies to grow. An assurance of an independent and efficient corruption-related dispute settlement mechanism would boost investor confidence, thereby attracting investment and development in the region.

Africa’s Perception of International Courts: Lessons for Multilateral Investment Court

The process of the establishment of the Multilateral Investment Court (MIC), to replace or operate in parallel to the current Investor State Dispute Settlement System (ISDS) system, is ongoing under the auspices of the United Nations Commission Trade Law (UNTRAL) Working Group III (Working Group III). In this forum, parties are invited to make submissions with a view to building support for on the establishment of the court. As expected, the submissions reveal varying concerns, perceptions and interests of states.

Harmonising International Investment Law with International Law Through the Framework of the Multilateral Investment Court (MIC)

The aim of this post is to illustrate how the MIC can be used as a tool for harmonising international investment law (IIL) with general international law and other branches of international law. The increase in investor state arbitrations has led to a growing increase in the overlap between investment obligations and environmental, human rights and other international obligations. This may cause conflicts between the different branches of international law where more than one branch of international law is implicated in the investment dispute. This has led to the fragmentation of international law with calls to rebalance the system to allow for the consideration of broader public international law in the settlement of investor-state disputes.