The Investment Treaty Regime and Public Interest Regulation in Africa

Foreign direct investment (FDI) in Africa has increased, but investment treaties limit states' ability to regulate in the public interest. The Investment Treaty Regime and Public Interest Regulation in Africa presents the Imperatives Theory to reevaluate the legal status, making, and reform of investment treaties and dispute settlement in Africa, with implications for the global investment treaty regime.

Format: Hardback
Length: 400 pages
Publication date: 11 August 2022
Publisher: Oxford University Press

In recent decades, Africa has witnessed a significant influx of foreign direct investment (FDI), which has brought about both positive and negative consequences for the region. While these investments have the potential to stimulate economic growth and development, they can also have adverse effects on the environment, human rights, and social well-being. Moreover, investment treaties, which African states have entered into to promote and protect FDI, often limit their ability to regulate these activities in the interests of affected communities.

While these tensions have sparked global debate, there has been limited attention paid to the legal status of many of these investment treaties and whether African states, given their constitutional and customary international law obligations to act in the public interest, truly possess the capacity to conclude treaties that contain standards of investment protection that expressly prevent or unduly abridge their regulatory authority.

To address this critical question, The Investment Treaty Regime and Public Interest Regulation in Africa presents The Imperatives Theory: a legal, normative, and principled framework for rethinking the legal status, making, and reform of investment treaties and investment dispute settlement in Africa. This framework has significant implications for the global investment treaty regime as well.

The Imperatives Theory posits that investment treaties should be designed to promote sustainable development, protect human rights, and ensure the effective regulation of FDI. It emphasizes the importance of balancing the interests of investors and host states, and proposes a range of measures to achieve this balance.

One of the key principles of The Imperatives Theory is the recognition of the right of host states to regulate FDI in the public interest. This includes the right to impose environmental and social standards, protect labor rights, and regulate public services. Investment treaties should be tailored to accommodate these regulatory interests, rather than imposing restrictions that hinder the ability of host states to fulfill their obligations to their citizens.

Furthermore, The Imperatives Theory advocates for a more transparent and accountable investment treaty regime. This includes the establishment of independent dispute settlement mechanisms, the promotion of public participation in treaty negotiations, and the adoption of best practices for treaty drafting and implementation.

The Imperatives Theory also recognizes the importance of developing a legal framework that promotes investment in renewable energy and other sustainable sectors. This includes the provision of incentives for investment in these sectors, as well as the protection of intellectual property rights and the promotion of technology transfer.

In conclusion, The Investment Treaty Regime and Public Interest Regulation in Africa presents The Imperatives Theory as a legal, normative, and principled framework for rethinking the legal status, making, and reform of investment treaties and investment dispute settlement in Africa. This framework has significant implications for the global investment treaty regime as well, as it seeks to balance the interests of investors and host states, promote sustainable development, protect human rights, and ensure the effective regulation of FDI. By adopting these principles, African states can better position themselves to attract investment while also protecting the interests of their citizens and the environment.

Weight: 754g
Dimension: 166 x 239 x 31 (mm)
ISBN-13: 9780192896179