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European/Southern African Development Community (SADC) states' bilateral investment agreements (BITs) for the promotion and protection of foreign investments vs post‐apartheid SADC economic and social reconstruction policy

Ben Chigara (Brunel Law School, Brunel University, London, UK)

Journal of International Trade Law and Policy

ISSN: 1477-0024

Article publication date: 13 September 2011

Abstract

Purpose

This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of foreign investments in light of the latter's recent inauguration of Black Economic Empowerment (BEE) as a basic norm of regional customary international law and strategy for countering the social and economic legacy of apartheid rule on their territories for over half a century.

Design/methodology/approach

The approach taken is textual analysis and deconstruction of emergent SADC BEE legislation, substantive BIT legislation provisions, dispute settlement mechanisms and emergent jurisprudence on the tensions between BEE policy and BIT obligations.

Findings

The strong elements of exclusivity between European/SADC BIT dispute settlement mechanisms on the one hand, and the “ouster clauses” of SADC BEE legislation and regulations on the other, are mutually incompatible. This incompatibility threatens the sustainability of the EU/SADC states' BIT dynamic for the promotion and protection of foreign direct investments (FDIs).

Originality/value

Demonstration of BEE as SADC's emergent basic norm of social reconstruction for countering the social and economic legacy of apartheid rule in affected states and implications of that for EU/SADC policy on the promotion and protection of FDIs.

Keywords

Citation

Chigara, B. (2011), "European/Southern African Development Community (SADC) states' bilateral investment agreements (BITs) for the promotion and protection of foreign investments vs post‐apartheid SADC economic and social reconstruction policy", Journal of International Trade Law and Policy, Vol. 10 No. 3, pp. 213-242. https://doi.org/10.1108/14770021111165508

Publisher

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Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited