International Arbitration

The News and Events published every week include conferences, major developments in the field of International Economic Law in Africa at the national, sub-regional and regional levels as well as relevant case law.

The News and Events published every week include conferences, major developments in the field of International Economic Law in Africa at the national, sub-regional and regional levels as well as relevant case law.

August 2, 2021

The AEA-Prelim Training and Competition 2021

The News and Events published every week include conferences, major developments in the field of International Economic Law in Africa at the national, sub-regional and regional levels as well as relevant case law.

The News and Events published every week include conferences, major developments in the field of International Economic Law in Africa at the national, sub-regional and regional levels as well as relevant case law.

We are delighted to welcome Munia El Harti Alonso as a Contributing Editor. Munia brings a unique expertise in international arbitration and Investor State Dispute Settlement.

As an essential outcome of strengthening the state control over natural wealth and resources, Tanzania has brought natural resource contracts into the purview of its domestic legal system. In doing so, some countries have exercised their sovereign rights to natural resources as the basis for denouncing international adjudication of investment claims based on such contracts. Indeed, biases perceived by Tanzania concerning international arbitration fora have played a great role in bringing natural recourse contracts into the purview of Tanzanian legal system. The goal of the reforms is to mitigate such partialities through using domestic dispute resolution mechanisms.

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.

If Africa is genuinely interested in the reforms of ISDS then the words of the Kenyan delegation at the UNCITRAL working group must be our yards stick; the desired outcome will only be achieved when we begin to consider the substantive issues in an open, frank, free, and transparent manner, noting the need to fast track the conclusion of a holistic reform process of the ISDS. Perceptions and plausible folk theories aimed at nothing but creating hegemony in ISDS must be shunned. My crystal ball tells me that ISDS is here to stay, thus we must make no mistakes, but shape ISDS to suit our future interests.

Tension between investment protection and right to regulate has not been resolved yet and it is even more dangerous when States take measures in order to target health, social and economic effects of the covid-19 pandemic. Facing investor-State dispute resolution reform, an approach from Martha Fineman's vulnerability theory is imperative. Placing human being (vulnerable subject) as the center of the analysis, right to regulate protection should be a pre-stage for building resilience from social institutions. Therefore, States would not be at risk of compromising their budgets in international arbitration or experiencing “regulatory chill