The focus of the Conference was to promote Alternative Dispute Resolution (ADR) as a viable mechanism for dispute resolution in Africa and to discuss ways to ensure that disputes originating from, and terminating in Africa, are resolved within the continent. This will in turn boost the African economy and promote arbitration law and practice in the region.
Bilateral Investment Treaties
This paper engages in a critical legal analysis of Professor Ian Taylor’s article, Sixty Years Later: Africa’s Stalled Decolonization. It is not meant to be an exhaustive analysis but will provide a limited legal perspective of the article’s foundational arguments on the underlying causes of Africa’s economic underdevelopment, through a legal lens rooted in intellectual property (IP) law and international investment law (IIL).
The optional subjects being offered at SAU also have considerable number of readings that focus on South Asia. They also include the works of South Asian scholars and Third World scholars. All the optional courses offered at SAU address international issues of relevance to South Asia, in varying degrees. Discussions on general topics include special reference to South Asia in most of the courses. Thus, the LL.M. course at SAU is heralding in a South Asian approach to IL.
There is a need to strip the teaching of PIL of its Eurocentric cognitive and civilisational conceits. ‘There is something profoundly wrong when syllabi designed to meet the ends of colonialism continue well into the [postcolonial] era’.
In the opinion of this contribution, African States must be more radical in their approach to investment treaty and ISDS reforms. First, they must retain the role of domestic courts in the resolution of investment disputes in line with their national constitutions. Second, where the case for an international dispute settlement mechanism is made, they must consider a state-state trade and investment dispute settlement bodies at the regional and continental levels for all transnational business disputes. Appeals from domestic courts could lie before regional appellate bodies and from a regional appellate to a continental dispute settlement body. This should provide assurance to investors and other business entities that their disputes can and must be resolved within the African continent.
In addition to BITs and IP laws, the Nigerian government can rely on the international law principle of necessity to justify taking measures such as compulsory licencing, yet the successful use of this principle depends on satisfying various conditions. Meanwhile, applicability of the customary doctrine of police powers to the claims arising under BITs has been accepted. This means that ISDS tribunals should thus attach normative propriety to state regulation in an epidemic.
In this brief post, I want to make sense of Prabhash Ranjan’s brief critique of TWAIL perspectives on international investment law. My main aim is not to mount a defense of TWAIL project(s) on investment law because that might be done more eloquently by others. Instead, I want to make some brief comments about the political valence of, and the assumptions behind, the reservations that Professor Ranjan articulated in this post, and which also appear in his recent book on India and Bilateral Investment Treaties.
Coal extraction is a lucrative industry in Colombia for the transnational corporations operating in the country. One of the most aggressive projects against local communities today is the Cerrejon coal mine in la Guajira, which has been a site for large-scale coal extraction since 1970. In 1976 the Colombian government signed a contract with Intercor (a subsidiary of Exxon) to explore, exploit and commercialize the Northern Zone. Under this agreement, both the exploitation and commercialization of coal would have a duration of 23 years, from which both the mine and the railroad, the port, the buildings, other properties, contracts and fixed assets that are necessary for the development of the business would return to Carbocol, a state-owned enterprise.
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.
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.