Arbitral Tribunals

If Africa is genuinely interested in the reforms of ISDS then the words of the Kenyan delegation at the UNCITRAL working group must be our yards stick; the desired outcome will only be achieved when we begin to consider the substantive issues in an open, frank, free, and transparent manner, noting the need to fast track the conclusion of a holistic reform process of the ISDS. Perceptions and plausible folk theories aimed at nothing but creating hegemony in ISDS must be shunned. My crystal ball tells me that ISDS is here to stay, thus we must make no mistakes, but shape ISDS to suit our future interests.

The present state of international economic law leaves much to be desired. Anchored by the multilateral General Agreement on Tariffs and Trade, which led to the creation of the World Trade Organization, and complemented by a vast network of bilateral and multilateral investment treaties and free trade agreements, international economic law is drawn from diffuse sources. Additionally, the WTO Dispute Settlement Body and Appellate Body, which interpret the GATT provisions, and arbitral tribunals, which interpret investment protection agreement provisions, shape the content of international economic law. However, the patchwork of treaty text and dispute settlement rulings into a body of law is unraveling.

Though promising, trade and investment relations between African and Caribbean countries remain under-tapped. Indeed, according to UNCTAD’s IIA Navigator, there are only twelve signed bilateral investment treaties (BITs) between Caribbean and African countries, of which only four are in force. Recently, however, there have been budding signals of interest on both sides of the Atlantic in deepening commercial relations. This article examines the current Africa-Caribbean investment treaty network and proposes three possible options for transforming Africa-Caribbean investment relations.

A common African position could also facilitate a strong African influence in the international IIA and ISDS reform discussions that are paralysed by diametrically opposed positions of the different players. A prerequisite is to coordinate and put into effect the African reforms in African REIOs – ideally through the AU-, and to speak with one voice in international for a such as the UNCITRAL Working Group III. While the US, EU, and China are caught up in trade wars, this could be an opportunity for Africa to become a rule-maker rather than a rule-taker in making international investment law more sustainable - an opportunity that should be used

Courts in Africa must construe arbitrability through a narrow interpretation of public policy, loyalty to the doctrine of Kompetenz-Kompetenz, and severability in international commercial arbitration. A proactive judicial approach should be based on distinctive arbitration practices that reflect Africa’s socio-economic background as well as contemporary arbitral trends around the world, as this is a viable means to reduce the influence of public policy on questions of arbitrability in Africa.