Symposium Posts

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The Proposed Multilateral Investment Court vis-a-viz sub-African Investment Interests for the settlement of International Investment Disputes

Globalisation of commercial activity extends into international investments, evidenced by over 2,500 bilateral investment treaties (BIT) or International Investment Agreements (IIA) in the international investment regime. Within these BITs is an embedded Investment State Dispute Settlement (ISDS) system executed through an Arbitration Mechanism. The ISDS system serves as a dispute resolution tool for achieving the purpose of the IIA. The purpose of the IIA is for the protection of foreign investment from the harmful policies and governance of host states. In addition, many IIAs contain certain common standards and principles that regulate the investment relationship, such as the notorious fair and equitable treatment (FET), stabilization clauses, and so on. Thus, the overarching aim behind the norms and principles of international investment management is the creation of a system of legal safeguards against the actions of the host states. This simplistic paradigm of international investment law regime has become increasingly problematic due to the expansion and inclusion of various indirect stakeholders in the investment agreements, the growing recognition of public socio-economic realities like regulatory rights, and development rights, that are being pushed for larger consideration from ignored stakeholders mostly like the public.

Africa’s Perception of International Courts: Lessons for Multilateral Investment Court

The process of the establishment of the Multilateral Investment Court (MIC), to replace or operate in parallel to the current Investor State Dispute Settlement System (ISDS) system, is ongoing under the auspices of the United Nations Commission Trade Law (UNTRAL) Working Group III (Working Group III). In this forum, parties are invited to make submissions with a view to building support for on the establishment of the court. As expected, the submissions reveal varying concerns, perceptions and interests of states.

Harmonising International Investment Law with International Law Through the Framework of the Multilateral Investment Court (MIC)

The aim of this post is to illustrate how the MIC can be used as a tool for harmonising international investment law (IIL) with general international law and other branches of international law. The increase in investor state arbitrations has led to a growing increase in the overlap between investment obligations and environmental, human rights and other international obligations. This may cause conflicts between the different branches of international law where more than one branch of international law is implicated in the investment dispute. This has led to the fragmentation of international law with calls to rebalance the system to allow for the consideration of broader public international law in the settlement of investor-state disputes.

The Proposed Multilateral Investment Court: A Missing Issue of Importance to Africa

Most in the International Investment Law community would be aware of the ongoing work by the United Nations Commission on Transnational Trade Law’s (UNCITRAL’s) Working Group III on reforming the Investor-State Dispute Settlement (ISDS) system. This work has been actuated by criticisms of the ISDS system (or, more precisely, the Investor-State Arbitration (ISA) system). A major proposed reform is the establishment of a standing Multilateral Investment Court (MIC) to replace or co-exist with the ISA system.

Project-Affected Local Communities, Africa and the Multilateral Investment Court

This essay discusses the opportunity the proposed multilateral investment court (‘MIC’) presents for states to holistically address the imbalances in international investment law by granting local communities a binding international remedy for corporate human rights violations and other investment-related harms. It argues that concerns about granting local communities such a right are overstated especially since it can be done with sufficient guardrails to prevent an upset to the ISDS system. For African states, this should be a priority in the MIC negotiations given corporate abuses of their local communities, especially in natural resource-rich areas, and their obligation under Article 21(5) of the African Charter on Human and Peoples’ Rights 1981 (‘African Charter’) to prevent or remedy such exploitation.

Revolutionizing Investment Dispute Resolution in Africa: Towards a Balanced Multilateral Approach

In March 2018, African nations embarked on a historic journey to reshape their trade landscape through the African Continental Free Trade Area (AfCFTA). Originally scheduled for implementation in mid-2020, a pandemic-induced delay pushed the launch to January 2021. Aggregating over 1.2 billion people, the AfCFTA promises to create a massive market with a combined GDP of over $3 trillion. With 54 signatories and 47 countries ratifying the agreement, the AfCFTA aims to foster a pan-African free trade zone, enhance regional development prospects, and promote intra-African trade. Key mechanisms are progressively dismantling trade barriers and promoting investment. This blog post delves into the current state of investment dispute settlement (ISDS) mechanisms across Africa, the potential of the AfCFTA and its investment protocol to catalyse change, and the need for a balanced multilateral approach. Through collaboration, innovation, and a commitment to equity, Africa can create a new paradigm for investment dispute resolution that truly reflects the continent's values and aspirations.

Consistently Inconsistent Awards: An African Perspective on Consistent Awards Under A Multilateral Investment Court

The Investor-State Dispute Settlement (ISDS) system in its current form has been viewed as being malignant to the Global South. Africa in particular, has been a strong critic of the system with the most radical action against ISDS coming from South Africa, which has stated that investment arbitration awards are “directly opposed to the legitimate, constitutional and democratic policies of the country”. The United Nations Commission on Trade Law (UNCITRAL) has now mandated its Working Group III (WG3) to lead ISDS reform efforts. One of the key areas of reform under the purview of WG3 is the inconsistency, incoherency, unpredictability and incorrectness of investment arbitration awards.

Making the Multilateral Investment Court Beneficial for African Local Communities

This contribution has looked at the extent to which the MIC can improve the participation of African local communities in ISDS and ensure a better protection of their rights and interests. It started by discussing the current participation of these communities in ISDS with a view of identifying the challenges these communities are facing before analyzing how the MIC can address some of these challenges. Emphasis should be placed on the selection of MIC members and encourage the appointment of members with broad expertise in (public)international law and public issues and not experts with only commercial background. Indeed, most recent investment agreements contain provisions that protect local communities. The challenge therefore lies in how these agreements are interpreted and applied. In addition, the MIC investment advisory centre should extend its services to local communities and assist them in the drafting and submission of their briefs to investment tribunals.

Africa and the (Mis-)Promise of Green Finance

This post critiques the extent to which the present green finance rush embraces laws and policies that are largely externally motivated prescriptions designed, mandated, or foisted on resource-rich African countries through creative channels of geopolitical norm diffusion. These contradictions need to be questioned to avoid the charge of greenwashing.

Green Deals and Reproductive Justice: A Promise of Just Transition

Research has linked climate change and reproductive rights, as demonstrated by the increased exposure of women to sexual assault as they collect firewood or search for water. Such sexualized violence is prevalent in women-led rural households and highly vulnerable settings. For example, humanitarian contexts, slums, and arid areas have high rates of sexual violence due to water scarcity and poor lighting as women and adolescent girls travel long distances to access water. From an African socio-cultural context, fetching water and firewood are mainly feminine roles. Thus, energy distribution and water scarcity associated with climate change interact with gender dynamics to provide a setting for enacting sexualized violence. Freedom from sexual violence is an integral aspect of reproductive justice, a state where people have bodily autonomy and live in a safe and healthy environment that protects and upholds their reproductive rights and decisions. The question that arises is - can green projects, including the EU Green Deal, address climate change in a manner that addresses the associated sexual and reproductive justice issues in Sub-Saharan Africa?