Developing Countries

We have an outstanding opportunity for an Adviser, Trade Competitiveness Section in our Trade, Oceans and Natural Resources Directorate

Although developing countries are very eager to attract FDI through BITs, for most parts, they deliberately water down the environmental concerns. However, recently we have witnessed the incorporation of environmental standards and provisions in BITs. This ambitious effort however is usually frustrated by decisions of international arbitration tribunals.

This paper aligns with Godwell Nhamo who states that ‘if the SDGs are to be a vehicle for poverty eradication in Africa, then the continent needs to do more for itself, including domestic mobilization of financial resources’. In essence, effective partnerships or collaborations (e.g. between government, academia, public sector, private sector, civic society and local communities amongst others) need to be developed in order to achieve sustainable SDGs outputs.

In short, the SDGs and its interesting set of targets are a fertile ground not only to reimagine past UN led decade themed goals and their implications for (sustainable) development, but, to also situate them in contemporary discourse of the activities of nations, transnational corporations and other non-state actors. As part of the 2019 Purdy Crawford Workshop, the contributions to the symposium on “Sustainable Development Goals, Trade, Investment, and Inequality” critically examine these goals from the vantage point of each contributor’s scholarly expertise.

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.

The Guide should better take into account that land deals and their potential negative impacts go beyond contract law, and require a more consistent incorporation of human rights and environmental law. Even though strengthening legal frameworks and standards at national and international level might be outside of the Guide’s scope, it needs to be clear about the institutional and legal context that is required to protect and guarantee human rights, as well as the importance of cooperation between states, including needed regulations in commercial and administrative law at national and international levels.

In the grander scheme of things, amidst the crisis of climate change in which the vulnerability of Africa continues to unravel, Africa remains a preferred choice of FDI in agriculture for the export of green energy and for food. This situation raises concerns about displacements, conflicts, shrinking traditional landraces and continental food security writ large. The traction for agricultural FDI comes through the scheme of large scale agricultural land acquisitions, which activists framed as agricultural “land grabs”.

Fox and Bakhoum contextualize competition law by describing (in chapters 2 and 3) the structure and other key characteristic of markets in numerous African countries, including the economic and political history of those countries and their markets, as well as the legacies of colonization and decolonization – and by highlighting more broadly the economic challenges and needs of the people of Africa.

Arguably, Fox and Bakhoum’s Making Markets Work for Africa does more than take part in this literature, it helps bring it into focus, crystallizing its insights and articulating a number of its internal debates.  Perhaps this assessment should be nuanced a bit.  Despite their extensive footnotes and their admirable collaborative scholarship and drive to work from and with African sources (for instance with the Quarterly Competition Review produced by CCRED), the book is focused more on the policy problem than on the existing literature about the problem.  This is not a book about books; it is a book about identifying a complex economic situation with challenges and opportunities and charting and driving a particular line in favour of a better life for Africa’s population.

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.