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Bilateral Investment Treaty
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.
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.
A coordinated African voice on FDI would likely enhance the continent’s global competitiveness, prevent destructive competition among countries, help strengthen Africa’s position in investment agreements, and ultimately result in increased FDI flows to the continent.
Reforming domestic law is critical to ensuring countries capture the benefits of their natural resources wealth. In addition, it is increasingly being recognized in investment treaty reform processes as well as in investor-state dispute settlement proceedings that investor compliance with domestic law is a prerequisite to entertaining investor claims against states.
The last two decades has seen Intellectual Property, (IP), increasingly regulated by bilateral and regional free trade agreements, (FTAs), rather than through multilateral forums like the WTO. This trend is evidenced in trade between China and African countries, which is dominated by bilateral trade agreements.