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.

This essay discusses the opportunity the proposed multilateral investment court (‘MIC’) presents for states to holistically address the imbalances in international investment law by granting local communities a binding international remedy for corporate human rights violations and other investment-related harms. It argues that concerns about granting local communities such a right are overstated especially since it can be done with sufficient guardrails to prevent an upset to the ISDS system. For African states, this should be a priority in the MIC negotiations given corporate abuses of their local communities, especially in natural resource-rich areas, and their obligation under Article 21(5) of the African Charter on Human and Peoples’ Rights 1981 (‘African Charter’) to prevent or remedy such exploitation.

In March 2018, African nations embarked on a historic journey to reshape their trade landscape through the African Continental Free Trade Area (AfCFTA). Originally scheduled for implementation in mid-2020, a pandemic-induced delay pushed the launch to January 2021. Aggregating over 1.2 billion people, the AfCFTA promises to create a massive market with a combined GDP of over $3 trillion. With 54 signatories and 47 countries ratifying the agreement, the AfCFTA aims to foster a pan-African free trade zone, enhance regional development prospects, and promote intra-African trade. Key mechanisms are progressively dismantling trade barriers and promoting investment. This blog post delves into the current state of investment dispute settlement (ISDS) mechanisms across Africa, the potential of the AfCFTA and its investment protocol to catalyse change, and the need for a balanced multilateral approach. Through collaboration, innovation, and a commitment to equity, Africa can create a new paradigm for investment dispute resolution that truly reflects the continent's values and aspirations.

The Investor-State Dispute Settlement (ISDS) system in its current form has been viewed as being malignant to the Global South. Africa in particular, has been a strong critic of the system with the most radical action against ISDS coming from South Africa, which has stated that investment arbitration awards are “directly opposed to the legitimate, constitutional and democratic policies of the country”. The United Nations Commission on Trade Law (UNCITRAL) has now mandated its Working Group III (WG3) to lead ISDS reform efforts. One of the key areas of reform under the purview of WG3 is the inconsistency, incoherency, unpredictability and incorrectness of investment arbitration awards.

This contribution has looked at the extent to which the MIC can improve the participation of African local communities in ISDS and ensure a better protection of their rights and interests. It started by discussing the current participation of these communities in ISDS with a view of identifying the challenges these communities are facing before analyzing how the MIC can address some of these challenges. Emphasis should be placed on the selection of MIC members and encourage the appointment of members with broad expertise in (public)international law and public issues and not experts with only commercial background. Indeed, most recent investment agreements contain provisions that protect local communities. The challenge therefore lies in how these agreements are interpreted and applied. In addition, the MIC investment advisory centre should extend its services to local communities and assist them in the drafting and submission of their briefs to investment tribunals.

The first Global Stocktake took place at COP 28. The findings were concerning but not surprising. The Paris Agreement’s goal of keeping global average temperature well below 2oC above pre-industrial levels and aiming for 1.5oC remains out of reach. 2023 is set to be the warmest year on record. Only about one fifth of the total carbon budget for a 50% probability of limiting global warming to 1.5oC remains. Adaptation responses remain fragmented, inadequate, and unequally distributed.

It remains imperative for both the executive and lawmakers to find the political will to push for judiciousness in debt management; thus, eliminating the danger of excessive and unproductive debt. The government of Nigeria must adopt responsible borrowing practices in order to arrive at a sustainable debt stock. As it stands, the Ways and Means advances facility may be prone to abuse if Presidents can easily approach the CBN for loans without repaying and transferring the burden to the average citizen. The AfSDJN recommends that the Tinubu administration only approaches the Central Bank as a “lender of last resort” in strict conformity with Section 38 (1) of the CBN Act. The Federal Government must devise more proactive ways of raising revenue to reduce such borrowing activities as it increases Nigeria’s debt servicing burden as highlighted. Convened by Afronomicslaw.org with the support of Open Society for Southern Africa, (OSISA), the AfSDJN's activities are tailored around addressing the threats that sovereign debt poses for economic development, social cohesion and human rights in Africa. It advocates for debt cancellation, rescheduling and restructuring as well as increasing the accountability and responsibility of lenders and African governments about how sovereign debt is procured, spent and repaid.

The sponsoring organizations of the International Conference on the Future of African Trade and the AfCFTA invite submissions and participant nominations for a collaborative exchange and discussion at a two-day hybrid conference to take place on May 16 and 17, 2024. The conference working language will be English and will include paper presentations on topics detailed below.

The webinar brings two together the authors of two new books on the subject of international investment law in Africa and three expert panelists to interrogate thematic issues that arise from the books; their implication for contemporary practices of international investment law in Africa and beyond; and what insights we may draw on them for the future of the regimes on investment law in Africa.