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Implications of ‘BITs’ for Cross-border Insolvency Regulation in Sub-Saharan Africa

Implications of ‘BITs’ for Cross-border Insolvency Regulation in Sub-Saharan Africa BENHAJJ SHAABAN MASOUD I. INTRODUCTION There is a clear nexus between the bilateral investment treaties (BITs) and crossborder insolvency regulations. This article takes this point further by examining the principles and standards that emerge from the standardised form of the BITs as they link and implicate cross-border insolvency regulations in subSaharan African (SSA) where the majority of BITs have been concluded with developed countries. Lessons drawn from several BITs are used to assess the policy space left by the BITs to host SSA countries in making cross-border insolvency policy choices commensurate with their situations. The article argues that although BITs do not explicitly provide for cross-border insolvency, they embody general principles of law that dictate the nature and content of SSA countries' cross-border insolvency regulations and enhance the potential for crossborder insolvency through the interactions of SSA countries with multinational enterprises in international business. The article invokes cross-border insolvency theories to determine the theoretical nature and type of regulatory approach to which the regime established by BITs point, and issues for consideration that emerge. It is consequently submitted that the workings of BITs effectively pull cross-border insolvency frameworks in SSA countries towards a universalist stance and away from http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

Implications of ‘BITs’ for Cross-border Insolvency Regulation in Sub-Saharan Africa

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Publisher
Edinburgh University Press
Copyright
© Edinburgh University Press 2016
Subject
Articles; African Studies
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2016.0140
Publisher site
See Article on Publisher Site

Abstract

BENHAJJ SHAABAN MASOUD I. INTRODUCTION There is a clear nexus between the bilateral investment treaties (BITs) and crossborder insolvency regulations. This article takes this point further by examining the principles and standards that emerge from the standardised form of the BITs as they link and implicate cross-border insolvency regulations in subSaharan African (SSA) where the majority of BITs have been concluded with developed countries. Lessons drawn from several BITs are used to assess the policy space left by the BITs to host SSA countries in making cross-border insolvency policy choices commensurate with their situations. The article argues that although BITs do not explicitly provide for cross-border insolvency, they embody general principles of law that dictate the nature and content of SSA countries' cross-border insolvency regulations and enhance the potential for crossborder insolvency through the interactions of SSA countries with multinational enterprises in international business. The article invokes cross-border insolvency theories to determine the theoretical nature and type of regulatory approach to which the regime established by BITs point, and issues for consideration that emerge. It is consequently submitted that the workings of BITs effectively pull cross-border insolvency frameworks in SSA countries towards a universalist stance and away from

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Feb 1, 2016

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