Morocco-Nigeria BIT

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.

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.

African countries can, and should facilitate, access to international arbitration by their citizens whose interests are harmed by foreign investors by procuring investors’ consent to such arbitration, and by including in their IIAs investor obligations. Allowing HSCs to be able to seek remedies through international arbitration has a number of benefits.

This book symposium is about a new era of international investment norms in Africa. The discussion focuses on how to foster cooperation between African states and foreign investors in implementing sustainable development objectives and addressing global challenges. Several traditional investment treaties offer investors broad rights and protections that are backed by strong dispute settlement mechanisms. In the same vein, States have historically committed to non-reciprocal obligations in investment treaties that are seen as significantly limiting the policy space of states.