Bilateral Investment Treaties

I am delighted to present this symposium for my textbook entitled: International Investment Law: National, Regional and Global Perspectives (Wolf Legal Publishers, Nijmegen, the Netherlands: 2020). The textbook could not have come at a better time given the compelling need for scholars from the Global South, particularly Africa, to contribute to international investment law scholarship to help reshape and redefine international investment law for the mutual advantages of foreign investors/enterprises and the host States.

Probably buoyed by its relatively open-ended nature, the fair and equitable standard (FET) of protection of foreign investors has become a much more invoked arsenal than the claim of direct or indirect expropriation. As Professor Sornarajah notes in his foreword to the book, very few scholars have dealt with the impact that the relatively opaque, if not expansive interpretations of the FET standard by arbitrators has had on the host States, particularly those from the global South. Professor Rumana Islam’s work is a notable exception to this.

The overarching argument made in the book is that there is a pressing need to reconceptualize the interpretation of the FET standard, taking into account the particular developmental circumstances of the developing countries in investor-State disputes. The book explores these challenges and issues that the developing countries face arising from overly broad interpretations of the FET standard.

It was reported that before the operating plant was due to operate in 2008, Egypt implemented new measures requiring the Arabian Cement Company to pay additional licensing and electricity fees. The essence of the case concerned the Egyptian authorities failure to provide gas and electricity supply to the cement plant, as well as the denial of justice by the Egyptian judiciary. Claimants consequently requested USD 236 Million in damages.

The focus of the Conference was to promote Alternative Dispute Resolution (ADR) as a viable mechanism for dispute resolution in Africa and to discuss ways to ensure that disputes originating from, and terminating in Africa, are resolved within the continent. This will in turn boost the African economy and promote arbitration law and practice in the region.

This paper engages in a critical legal analysis of Professor Ian Taylor’s article, Sixty Years Later: Africa’s Stalled Decolonization. It is not meant to be an exhaustive analysis but will provide a limited legal perspective of the article’s foundational arguments on the underlying causes of Africa’s economic underdevelopment, through a legal lens rooted in intellectual property (IP) law and international investment law (IIL).

The optional subjects being offered at SAU also have considerable number of readings that focus on South Asia. They also include the works of South Asian scholars and Third World scholars. All the optional courses offered at SAU address international issues of relevance to South Asia, in varying degrees. Discussions on general topics include special reference to South Asia in most of the courses. Thus, the LL.M. course at SAU is heralding in a South Asian approach to IL.

There is a need to strip the teaching of PIL of its Eurocentric cognitive and civilisational conceits. ‘There is something profoundly wrong when syllabi designed to meet the ends of colonialism continue well into the [postcolonial] era’.

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.

In addition to BITs and IP laws, the Nigerian government can rely on the international law principle of necessity to justify taking measures such as compulsory licencing, yet the successful use of this principle depends on satisfying various conditions. Meanwhile, applicability of the customary doctrine of police powers to the claims arising under BITs has been accepted. This means that ISDS tribunals should thus attach normative propriety to state regulation in an epidemic.