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Investor-State Dispute Settlement in Sub-Saharan Africa: Suggestions for Reform

Investor-State Dispute Settlement in Sub-Saharan Africa: Suggestions for Reform INVESTOR-STATE DISPUTE SETTLEMENT IN SUB-SAHARAN AFRICA: SUGGESTIONS FOR REFORM MEREDITH A. STRIKE I. INTRODUCTION Investor-state dispute settlement (ISDS) has been increasingly scrutinised – and criticised – in recent years. The existing system of ISDS ‘borrowed its main elements from the system of commercial arbitration’, despite the fact that investor- state disputes often raise public interest issues usually absent from international commercial arbitrations. These public interest issues require tribunals to ‘determine the state’s basic power, the extent of the state’s ability to regulate in the public interest, and the state’s capacity to make basic socioeconomic and political choices.’ For example, in the sub-Saharan African context, arbitral claims brought by European investors challenging governmental measures to address racially unequal distributions of land and minerals – in Zimbabwe and South Africa respectively – raise the question of the scope of governments’ abilities to enact policy measures without incurring significant liabilities under bilateral investment treaties (BITs). The tension between the public law aspects of investor-state disputes and the largely private, contract-oriented nature of the existing dispute settlement system has led to a perception of illegitimacy. Indeed, investor-state arbitration ‘is facing challenges to its legitimacy that are unlikely to be resolved without ∗ JD, http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

Investor-State Dispute Settlement in Sub-Saharan Africa: Suggestions for Reform

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Publisher
Edinburgh University Press
Copyright
Copyright © American Meteorological Society
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2019.0263
Publisher site
See Article on Publisher Site

Abstract

INVESTOR-STATE DISPUTE SETTLEMENT IN SUB-SAHARAN AFRICA: SUGGESTIONS FOR REFORM MEREDITH A. STRIKE I. INTRODUCTION Investor-state dispute settlement (ISDS) has been increasingly scrutinised – and criticised – in recent years. The existing system of ISDS ‘borrowed its main elements from the system of commercial arbitration’, despite the fact that investor- state disputes often raise public interest issues usually absent from international commercial arbitrations. These public interest issues require tribunals to ‘determine the state’s basic power, the extent of the state’s ability to regulate in the public interest, and the state’s capacity to make basic socioeconomic and political choices.’ For example, in the sub-Saharan African context, arbitral claims brought by European investors challenging governmental measures to address racially unequal distributions of land and minerals – in Zimbabwe and South Africa respectively – raise the question of the scope of governments’ abilities to enact policy measures without incurring significant liabilities under bilateral investment treaties (BITs). The tension between the public law aspects of investor-state disputes and the largely private, contract-oriented nature of the existing dispute settlement system has led to a perception of illegitimacy. Indeed, investor-state arbitration ‘is facing challenges to its legitimacy that are unlikely to be resolved without ∗ JD,

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Feb 1, 2019

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