Multilateral Investment Treaties in Africa and the Antagonistic Narratives of Bilateralism and Regionalism

By Repousis, Odysseas G. | Texas International Law Journal, October 1, 2017 | Go to article overview

Multilateral Investment Treaties in Africa and the Antagonistic Narratives of Bilateralism and Regionalism


Repousis, Odysseas G., Texas International Law Journal


TABLE OF CONTENTS

ABSTRACT..........................313

INTRODUCTION........................315

I. BILATERALISM IN AFRICA AND ITS CHARACTERISTICS ......................321

A. An Overview of BIT Conclusion in Africa...........321

B. Bilateral Investment Models in Africa.............325

II. Multilateral Investment Treaties in Africa......330

A. Arab and Muslim States............................330

1. The CAEU Investment Agreement (1970)..................331

a. General Characteristics. ..............................331

b. Standards of Treatment.................................333

c. Exceptions and Other Relevant Provisions..............334

d. Dispute Settlement.....................................334

2. The CAEU Investment Agreement and the Agreement on the Settlement of Investment Disputes (2000)..................335

3. The Unified Agreement for the Investment of Arab Capital(1980)...........

a. General Characteristics.....................336

b. Standards of Treatment.....................337

c. Exceptions and Other Relevant Provisions..............338

d. Dispute Settlement.................339

4.The Investment Agreement of the Organization of the Islamic Conference (1981)................340

a. General Characteristics.............340

b.Standards of Treatment................341

c. Exceptions and Other Relevant Provisions.................342

d. Dispute Settlement..................342

B. Early African Multilateralism: The CEPGL Community Investment Code.........343

a. General Characteristics.......345

b. Standards of Treatment.............345

c. Exceptions and Other Relevant Provisions...........345

d. Dispute Settlement...............346

C.Transplanting Western Standards in African Multilateralism....346

1. The Arab Maghreb Union Investment Agreement (1990) .........347

2. The ECOWAS Energy Protocol (2003)...........348

a. General Characteristics.............348

b. Standards of Treatment.............348

c. Exceptions and Other Relevant Provisions............349

d. Dispute Settlement..............349

D. The Emergence of African Regionalism. .........349

1. The Protocol on Finance and Investment of the SADC (2006).......... 350

a. General Characteristics.......... 350

b. Standards of Treatment............... 350

c. Exceptions and Other Relevant Provisions............. 350

d. Dispute Settlement................ 351

2. The Investment Agreement of the COMESA Common Investment Area (2007). .......353

a. General Characteristics..........353

b. Standards of Treatment...........353

c. Exceptions and Other Relevant Provisions........355

d. Dispute Settlement..................355

3. The ECOWAS Supplementary Act on Investment (2008).............355

a. General Characteristics.............355

b. Standards of Treatment...........356

c. Exceptions and Other Relevant Provisions............356

d. Dispute Settlement................357

III. THE EMERGING AFRICAN MODEL?.358

IV. PARALLELISM AS A RESTRAINING FACTOR OF AFRICAN REGIONALISM....361

CONCLUSION.367

INTRODUCTION

International investment law is now traversing one of its most controversial and ambivalent times. While various moves have been made toward the modernization of international investment law and the "transparencization" of investor-state arbitration proceedings,1 this field of law is increasingly marked by regional, and in many regards antithetical, trends.2 The latest of such trends is the stance of the European Union (EU) to push for permanent investor-state courts in its free trade agreements3 while eliminating intra-EU investment treaties. 4 This development is significant when viewed through the prism of mega-regionalism, until recently advanced by prominent endeavors such as the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP), and the EUCanada Comprehensive Economic and Trade Agreement (CETA). …

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