BIT

The draft Pan-African Investment Code (PAIC) or (Code) was released in 2015 with the objective of fostering cross-border investment flows in Africa. While the draft code currently serves as “guiding instrument”, it remains a valuable blueprint for solving the long-standing investment problems plaguing the region. It is therefore imperative that African countries hasten their efforts to ensure its implementation as a binding treaty document. The decision to develop the Code was welcomed by experts as an opportunity to create a binding legal framework to oversee Africa’s industrial and structural transformation. The Code was also expected to balance the lopsided nature of the relationship between investors’ rights and host states’ obligations.

The AU’s focus should be to design the AfCFTA investment protocol as an instrument that will treat all investors equally, and that will also foster harmonisation at continental level from the top down. My argument is still valid although my solution will not resolve questions such as divergent policies and views with regard to whether investor state disputes should be referred to arbitration or litigation. Central to this issue is that African states have different levels of the rule of law. This means that under circumstances where the rule of law is poor, obliging investors to refer disputes to the courts of a host state riks denial of justice.