National Treatment

This post engages with the Global Value Chain Development (GVCD) reports co-published by the World Trade Organization and the World Bank. It focuses on one central claim these reports have made about the development-related benefits of firms’ participation in GVCs, and on the policy recommendations that follow. The claim is that by inserting themselves into global value chains (GVCs) and technologically upgrading, firms can move up the value-added ladder and capture a greater share of the economic rewards, thereby also benefiting workers and their states in terms of employment, income and taxation.

World Trade Organization (WTO) member states are moving towards increased reliance on renewable energy and are enacting domestic policies to encourage investment in renewable energy technology. These domestic policies have not escaped the scrutiny of other WTO members, who in some cases have commenced dispute resolution processes to resolve claims of non-compliance with WTO Agreements. This commentary discusses relevant decisions of the WTO dispute resolution bodies and the possible effect of these decisions on renewable energy in Africa.

This analysis addresses the question whether it is constitutional and prudent for African states to agree to a treaty term such as national treatment, which limits their sovereign and constitutional powers to regulate in the public interest without having to account to foreign investors. The constitutions of many African states endorse the principle that sovereignty resides in the people.

Investors have shown time and time again that they will not hesitate to challenge regulatory measures not matter what a states’ underlying intent is. Only when the COVID-19 dust has settled will it be known which states had robust, well-crafted COVID-19 regulatory measures that can survive investor claims.

Although developing countries are very eager to attract FDI through BITs, for most parts, they deliberately water down the environmental concerns. However, recently we have witnessed the incorporation of environmental standards and provisions in BITs. This ambitious effort however is usually frustrated by decisions of international arbitration tribunals.

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.

At the heart of the WTO system is the commitment to the foundational principles of MFN and national treatment. But in a world predicated upon national interest and economic power, the most powerful may not consider multilateral rule-based commitments to be optimal to the achievement of their national interests. One feature of the WTO dispute settlement system is that every Member of the WTO is entitled to have their dispute determined under agreed rules. This is a basic feature of rules-based dispute settlement. The rules, impartially applied, have no regard to the economic power of the parties. The settlement of disputes by recourse to rules of general application yield outcomes that do not depend upon which member is more powerful.

The huge investments in the extractive sector should, in principle, be a catalyst for economic growth, job opportunities, and development. Often, these investments have been a source of environmental degradation, socio-economic malaise and despair. Equatorial Guinea, for instance, is a classic example of the ‘resource curse mystery in Africa. To leverage extractive resources for development, African countries are faced with legal, fiscal, implementation, infrastructure, regulatory and institutional challenges. This contribution addresses state and investor responsibility in the sustainable development of Africa’s extractive sector. It highlights four responsibility indices that will guide states and investors in fostering a shared value approach to an inclusive and sustainable development of Africa’s extractive sector.