International Investment Arbitration

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.

“You want to tell us you don’t want to sow, you want to reap” asked the Nigerian appointed arbitrator, Chief Bayo OJO, during oral argument in the arbitration proceedings, to which Nigerian counsel, Chief Ayorinde, responded: “You cannot reap where you do not sow. That is a very Nigerian saying.” (Nigeria v. Process & Industrial Development, para. 360). The Chair of the Tribunal, Lord Hoffmann, then intervened with his own cultural reference and said: “There is a passage in I think it is Shakespeare’s Henry VI where one of the rebels says: ‘Isn’t it terrible that people should be able to get into such trouble just by signing a document? Let’s kill all the lawyers.’” (Nigeria v. Process & Industrial Development, para. 360). Perhaps, underneath all the arbitral extravagance and incalculable network of disturbing corruption lurks a least appreciated cultural milieu worth $11 billion dollars.

Ecuador’s relationship with the Investment Treaty Regime is an unsettled issue deeply contested by dueling actors and narratives battling to annihilate each other. Ecuador is one of the top investment disputes’ respondent. ISDS awards have been particularly detrimental to its public coffers, and the country has attempted a tailored made constitutional approach to limit the reach of ISDS. Yet, none of this has been enough to reach a minimum consensus and understanding regarding the breadth of foreign investment protection. Remarkably, this endless struggle has paved the way for an increasing confluence of players that put in plain display the multiple transnational interests that shape foreign investment protection.

To mark the 2021 International Women’s Day themed #Choose to Challenge, Afronomicslaw.org celebrates Dr Dilini Pathirana’s brilliant contributions to International Investment Law. Dr Pathirana is a Senior Lecturer at University of Colombo, a founding committee member of South Asia International Economic Law Network (SAIELN), an editorial board member of Sri Lanka Journal of International Law (SLJIL) and a contributing editor on Afronomicslaw.org.

In this book, the author took the interdisciplinary approach to explore the application of the FET clause in the IIAs between developed and developing countries as well as its subsequent effects on the socio-economic context of the developing state. The main aim of this book as stated in p. 171 is to re-conceptualize the FET clause from the perspective of the host States with comprehensive consideration of their social, political, and economic conditions.

Probably buoyed by its relatively open-ended nature, the fair and equitable standard (FET) of protection of foreign investors has become a much more invoked arsenal than the claim of direct or indirect expropriation. As Professor Sornarajah notes in his foreword to the book, very few scholars have dealt with the impact that the relatively opaque, if not expansive interpretations of the FET standard by arbitrators has had on the host States, particularly those from the global South. Professor Rumana Islam’s work is a notable exception to this.

The book flees from a Manichean vision of international investment law. It is not written against foreign investors and in favor of developing States. With a scientific caution, the author reflects on how bridges can be built between these two actors with the aim of upholding development priorities without undermining investors’ protection — thereby hinting at a fair and equitable treatment for host developing States

The overarching argument made in the book is that there is a pressing need to reconceptualize the interpretation of the FET standard, taking into account the particular developmental circumstances of the developing countries in investor-State disputes. The book explores these challenges and issues that the developing countries face arising from overly broad interpretations of the FET standard.

I propose that it is our current and future battles that will determine the meaning and impact of decolonisation in Africa and beyond. As things stand now, the dead are certainly not safe. Let me elaborate on this claim drawing from Professor Taylor’s work: his piece draws from the classics of Third Worldist Marxism and dependency theory to provide a sober account of Africa’s nominally post-colonial present.