The intervener in her classical procedural technicalities attack strategy at the domestic level, argued that the court lacked jurisdiction over a decision of the apex court of a partner State. She argued that the EACJ could not exercise appellate jurisdiction over a decision by the Kenyan Supreme Court. The court ruled that this argument would fail as the Court had jurisdiction over States for the State’ internationally wrongful acts of any of its State organs including the judiciary.
Decolonial thinking urges us to go beyond questions of public / private dichotomy, in which key transnational private actors for the global economy participate. Instead, decolonial thinkers suggest the need to transcend the notion of “development”, which continues to influence the actions of the global south and permanently reinserting them into a subordinate position within the “Euro-American capitalist / patriarchal-modern / colonial world-system”.
Based the observation from Ghana and Kenya, there is the need to improve the efficiency and effectiveness of investment tax incentives to ensure transparency, accountability, reduce associated costs, and check abuse.
One of the key points of departure of this book is that ‘the prevailing investment treaty based rules regime institutionalises neoliberalism, which argues for a lesser involvement of the state in the market’ (p. 19), and that ‘despite neo-liberalism’s aversion to the role of the state in economic matters, the state is responsible for the public interest and is the highest authority and a reduction in its economic functions’ (p. 19). It is on this basis that Adeleke theorises a harmonisation between the neoliberalist attitudes of international investment law on the one hand, and the public interest objectives of human rights law on the other.