World Bank

This post argues for greater collaboration between African countries and the Conference to ensure the continuing development of private international law on the continent, especially in fields of commercial significance. There are a number of important subject areas such as the enforcement of judgements, choice of law and jurisdiction agreements for which domestic reforms could be inspired by some of the Conference’s work.

Although recognised in the constitution since 1988, town planning has remained dogged by institutional and organisational failures, which in combination with a lack of commitment at federal and state levels to the funding of coherent and integrated development planning policy has, of necessity, led to greater reliance upon external resources (Ramon, 2017). Hence funding infrastructure development, in the given context presents difficulty as in many jurisdictions, whether developed or developing, given the multiple claims for funding that governments find they have to resource. 

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.

Illicit Financial Flows (IFFs) are one of several impediments to achieving sustainable development in developing countries across the world. While there is no globally accepted definition of IFFs, there is global acceptance that IFFs undermine the efforts of developing countries to generate domestic revenues to finance their national development agendas. According to the United Nations (UN), developing countries face an estimated annual funding gap of $2.5 trillion to deliver on Agenda 2030. In Africa, the continent loses approximately $100 billion annually through IFFs that are generated in and moved from the continent to tax havens.

By bringing forward this interlegal sensibility, ALIC invites the investor to think of their own best interest in broad term and to take the time to understand already-existing, pluralist socio-legal expectations and practices. It also implicitly reminds the investor to take the time to build a relationship with local communities that is buttressed by an iterative understanding of fairness (a core tenet of commercial law). Without such a relationship and appropriate due diligence, ALIC in effect recommends to the investor and the local community to not pursue the deal – no one benefits from a land transaction that is only made possible by disrupting local people’s lives or dislocating them from their homeland.

In his contribution to this symposium on Eleanor Fox and Mor Bakhoum’s book, Making Markets Work for Africa: Markets, Development, and Competition Law in Sub-Saharan Africa (OUP, 2019), Jasper Lubeto notes the omission of Nigeria, Africa’s largest economy, as a case study in the book. This excellent book went to press before Nigeria’s competition law came into force in January this year. To add to the rich discussion in this symposium, this essay discusses the historical development of Nigeria’s new competition law as well as the players and forces that shaped it. Finally, it reflects on the challenges and opportunities open to the new agency established to oversee competition law and policy in Nigeria. This essay also precedes two other essays on Nigerian competition law in the next two days.

The book provides helpful examples of the challenges faced in terms of the financial and human capital needs for effective competition law enforcement as well as challenges of corruption and political pressure. Having set out these challenges, the authors document how some countries have very admirably dealt with them, showing how some competition authorities have risen to find effective solutions, making competition law worth much more than the paper it is written on.

The book provides illuminating insights on the contrasting historical and economic imperatives that drove the development of competition law and policy in the US, post World War II Europe and in selected countries on the African continent.  The authors explain that in the US, the development of antitrust law was a response to the industrial revolution and in its wake, large enterprises.  For almost a century, the US courts, interpreted antitrust law “to protect the weak from the strong.”  There was a significant shift in US antitrust law under the Reagan administration “away from economic democracy and towards efficiency” as the US focused on global competitiveness and economic power.

Local communities, for their part, consider investor responsibility a necessary part of the fabric of international law and politics. While the AU works towards framing business and human rights in Africa along with global developments regarding a treaty on business and human rights and treaties such as the Morocco/Nigeria BIT, African peoples and communities continue to adopt available mechanisms as avenues for communicating their positions on these important issues and exercising agency on a subject that is of utmost importance to their wellbeing.

Over the last decade, and especially in the mining sector, African state actors have begun to denounce unequal mining contracts, and are increasingly reviewing mining contracts accordingly. While African host states are seemingly taking it upon themselves to remedy real and perceived imbalances vis-à-vis investors in their mining contracts, a key question remains what structural reasons have led to such imbalances in the first place, and whose responsibility it is to address these structural issues: host states, investors, home states, international financial institutions, or all the above? This brief discussion contextualizes how responsibilities to redress unequal mining contracts may be shared.