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The Public Interest Safeguards in Arbitration in Ghana

The Public Interest Safeguards in Arbitration in Ghana Investor-state dispute settlement (ISDS) claims mostly challenge public interest regulatory measures. This has led to efforts to reform international investment agreements (IIAs), with some states terminating them. Orthodox capital protection-centred scholarship maintains support for IIAs, claiming they are necessary to attract investment for development. Policy space-centred critical scholarship rejects or is critical of IIAs saying their limitations on regulatory autonomy are unjustifiable because private capital alone cannot lead to development. An assessment of public interest safeguards in public-private arbitration in national constitutions and statutes is missing in this scholarship. Accordingly, I analyse the constitutional foundations of public-private arbitration in Ghana and show that in conformity with the constitutional role of public institutions, arbitration legislation safeguards the public interest. Therefore for Ghana and similarly placed African states to retain their right to regulate, arbitral tribunals must respect and uphold the protections accorded the public interest constitutionally and in arbitration legislation. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

The Public Interest Safeguards in Arbitration in Ghana

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Publisher
Edinburgh University Press
Copyright
Copyright © American Meteorological Society
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2020.0345
Publisher site
See Article on Publisher Site

Abstract

Investor-state dispute settlement (ISDS) claims mostly challenge public interest regulatory measures. This has led to efforts to reform international investment agreements (IIAs), with some states terminating them. Orthodox capital protection-centred scholarship maintains support for IIAs, claiming they are necessary to attract investment for development. Policy space-centred critical scholarship rejects or is critical of IIAs saying their limitations on regulatory autonomy are unjustifiable because private capital alone cannot lead to development. An assessment of public interest safeguards in public-private arbitration in national constitutions and statutes is missing in this scholarship. Accordingly, I analyse the constitutional foundations of public-private arbitration in Ghana and show that in conformity with the constitutional role of public institutions, arbitration legislation safeguards the public interest. Therefore for Ghana and similarly placed African states to retain their right to regulate, arbitral tribunals must respect and uphold the protections accorded the public interest constitutionally and in arbitration legislation.

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Nov 1, 2020

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