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.

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 special issue aims to spot the incommensurable potential of African heritage and encourage its local protection for the benefit of local communities and sustainable development. It also aims to highlight the promises and pitfalls of current international cultural heritage law in safeguarding African cultural heritage and harnessing its potential for promoting sustainable development. International cultural heritage law has developed using European conceptions of cultural property protection. As a result, it rarely reflects current African realities. Are there ways to adapt or use the existing legal frameworks to promote cultural protection and sustainable development in Africa? Discussions on alternatives for protecting African cultural heritage at the regional and continental levels, or reviews of any such extant mechanisms, are encouraged. Good practices that African countries can learn from or export to other countries are also welcome. Pertinent case studies are welcome too.

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.

Febuary 13, 2024

As you might be aware, and as per our discussions during the 8th World Investment Forum in Abu Dhabi, UNCTAD and the Academy of International Business (AIB) now accept policy-oriented papers on international investment in development from PhD students and early-career researchers with no more than 5 years of experience.

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. 

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.

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.

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.

Most in the International Investment Law community would be aware of the ongoing work by the United Nations Commission on Transnational Trade Law’s (UNCITRAL’s) Working Group III on reforming the Investor-State Dispute Settlement (ISDS) system. This work has been actuated by criticisms of the ISDS system (or, more precisely, the Investor-State Arbitration (ISA) system). A major proposed reform is the establishment of a standing Multilateral Investment Court (MIC) to replace or co-exist with the ISA system.