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The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent.

The study analyses the move by African countries to “Africanise” IIL by incorporating specific and innovative provisions and features in their international investment agreements (IIAs) for the benefit of African economies. This is evidenced by provisions in African regional investment instruments such as the 2007 Common Market of Eastern and Southern Africa Investment Agreement and the 2008 Economic Community of West African States Supplementary Act on Investments produced by the different African regional economic communities (RECs), new-generation IIAs such as the 2016 Nigeria-Morocco IIA and the China-Tanzania IIA and the African Union’s Pan-African Investment Code 2016. The common features of these instruments include linking the objective of investment promotion and protection to sustainable development; excluding portfolio investments; including provisions on investor-obligations; and reserving wide scope of regulatory space for host-states, including the ability to take emergency measures without incurring liability to investors. Some of these provisions are rare in IIAs.

The study finds that, while the efforts are commendable, there are real challenges. Firstly, there are inconsistencies in the regimes existing on the continent due to differences in the contents of the international investment instruments promulgated by the different RECs, and also differences in the content of IIAs signed by some member-states of the RECs with countries external to the RECs. Secondly, there are governance gaps and a lack of enforcement in practice, which would undermine the effectiveness of the laws being forged. Thirdly, the Africanised IIL alone would not attract investment if other important determinants, such as critical infrastructure, remain lacking. Fourthly, there is under-representation of Africa in the arbitral institutions that develop and enrich the laws, which, if it continues, would undermine the effectiveness of the Africanisation provisions being included in IIAs.

While the research discusses both law and policy, more is discussed of the law, owing to space limitation.

It is anticipated that this research will impact the content of the investment protocol under the African continental free trade area and beyond and will prompt review of existing and future IIAs by member states of the various RECs to align them for consistency. It is also hoped that this research will impact the review of various investment instruments of the RECs with the aim of harmonising them. It is further hoped that this research would contribute to addressing the challenges that militate against the achievement of the goals of Africanising ILL for sustainable development.

The study is original. It has not been published previously and the authors have found no existing publication that addresses the issues covered in this study.

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.

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.

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).

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.

This chapter proposes that social clauses within International Investments Agreements shall explicitly refer to the Global Compact initiative to be more effective at engaging foreign investors with the sustainable development policies of recipient States. Therefore, it analyzes the interaction between investment treaties and sustainability, evidencing an ongoing trend aimed at including corporate social responsibility provisions into these instruments, in order to address social goals from the perspective of foreign investors and Transnational Corporations.

The argument of this chapter relies mostly on literature review, but it also takes into account evidence provided by some selected International Investment Agreements. It is out of these sources that I infer that the Global Compact initiative can contribute the most to engage investors with the promotion of sustainable development goals within States recipient of Foreign Direct Investment.

The main finding of this chapter is that labor and environmental provisions in International Investment Agreements should make explicit reference to the U.N. Global Compact initiative. Certainly, because of its universality, legitimacy, and flexible implementation, this initiative constitutes the best approach for helping host States to achieve their sustainable development goals without losing their allure for foreign investors.

Although there are some International Investment Agreements whose labor and environmental clauses call for the voluntary adoption of corporate social responsibility provisions among foreign investors and Transnational Corporations, none of them makes explicit reference to the U.N. Global Compact initiative nor reflects the universal scope of its 10 principles. Thus, this chapter could serve as a departing point to discuss the inclusion of the U.N. Global Compact principles within International Investment Agreements.

Even though there is literature about the inclusion of instruments of corporate social responsibility in International Investment Agreements, the originality of this chapter consists in approaching this subject matter from the perspective of the U.N. Global Compact initiative.

The aim of this paper first is to go beyond the static effects of bilateral investment treaties (BITs) and empirically estimate the marginal effects of the stock of BITs on foreign direct investment flows.

These statistical models use a gravity equation.

This paper finds that BITs is subject to diminishing returns measured in terms of FDI flows. Diminishing returns are more pronounced among country-pairs that have not signed BITs but have their own BIT network than among country-pairs with their own BITs.

The subsidiary finding is that a measure of a country’s BIT network characteristic, capturing conditions favorable for a mix of horizontally and vertically integrated activities, may be the limiting force underlying the diminishing returns of the stock of BITs.

For a given country’s BIT network, a multinational enterprise finds more value in investing where a bilateral treaty is in place. This suggests either stronger property-rights protection or greater latitude to use the host country as an export platform.

This study examines the effect of host government interference with foreign investors’ assets on foreign direct investment (FDI) inflow. The author hypothesizes that the relationship between host government interference and FDI inflow takes the form of an inverted U shape. The author tests this hypothesis using data from the International Centre for Settlement of Investment Disputes between 1996 and 2017. The results support the above hypothesis. While host government interference with the assets of a few foreign investors may not deter FDI inflow, frequent interferences, which result in an increasing number of host state–foreign investor disputes, reduces FDI inflow in a host country. The analysis also shows that when faced with an increasing host country uncertainty, investors adopt a wait and see strategy. However, how long investors wait depends on the economic situation of the host country. For high-income countries, investors wait until approximately 10 disputes before reducing investments level in a host country, while for low-income countries, this waiting period is a mere two disputes. The findings of this study suggest that countries seeking to attract more FDI should not interfere with the activities of foreign investors, however, if they do, disputes should be settled at home, not in international arbitration courts, because doing so frequently may poison the host environment and deter other foreign investors from investing in the host country.

The purpose of this study is to examine the nature of the protection afforded to foreign investors and whether this protection has been exercised to the detriment of host states. In other words, is the regulatory authority of host states being compromised by the content of the investment agreements entered into? If so, is there scope for reform? The need to reform investor-state arbitration was recently pushed forward by the European Union Commission in the Transatlantic Trade and Investment Partnership.

It is conceptual.

It proposed an investment court system as a replacement for investor-state arbitration. However, there is great ambivalence on whether these reforms would result in a rebalance of investment agreements in favour of host states. Thus, this paper provides a range of solutions to the challenges posed by investor-state arbitration through proposals for a regional and world investment court.

The findings made in this research will inform both academics and practitioners in the field of international law on whether the investment court proposal will bring about the desired changes.

Secondary sources

Given the inconclusive evidence in the literature on the impact of Bilateral Investment Treaties (BITs) on Foreign Direct Investment (FDI) flows, as well as dearth of literature on this subject matter as regards West Africa and the European Union (EU), the purpose of this paper is to investigate the extent to which BITs and preferential trade and investment agreements (PTIAs) triggered foreign investment flows particularly between the Economic Community of West African States (ECOWAS) countries and the EU.

Trend analysis was used to trace the link between FDI and BITs, while panel regression models were used to investigate the impact of BITs on FDI during 1980‐2010.

Econometric results indicate that, as in most previous studies, BITs have strong positive impact on FDI in West Africa, with this impact significant at a higher level (1 per cent) for FDI flow than stock (5 per cent). The impact of BITs on FDI is significant even with the state of internal factors (such as capital account liberalisation, trade openness, high inflation rate and poor governance) in West African countries. The findings suggest that in the absence of BITs, West African countries would have suffered adversely from poor FDI inflows given their poor macroeconomic stability and governance. On the contrary, the PTIAs did not have significant impact on both FDI flows and stock. The results also show that FDI inflow to West Africa is both market and resources seeking.

Sensitivity analysis may not have been sufficient. For instance, not tested was the impact of the signalling effect of BIT, as well as other vertical FDI such as those from the USA.

The implication of the findings is that West Africa countries need to design policies and programmes that will enable them to maximise the technological spill‐over from FDI in order not to be perpetual suppliers of primary products and purchasers of manufactured goods. Further, they have to maintain macroeconomic stability and good governance. They need to understand the type of provisions in the BITs that constituent states signed and compare with the provisions of the PTIAs, with a view to discerning what is responsible for the superior response of FDI to BITs.

Given the absence of literature on the impact of BITs on FDI flows between West Africa and EU, it becomes imperative to investigate this issue with a view to motivating the investment component of the EPA, as investment is one of the Singapore issues that were removed from WTO's Doha Round.

This study aims to analyze tax revenue in the presence of double tax treaties affecting social welfare of the inhabitants in the Sub-Saharan African (SSA) developing economies, whose fiscal regimes are being branded as responsible for exacerbating poverty for the inhabitants. This paper seeks to determine if double tax treaties are negatively impacting on human development of the host countries.

This study analyses 21 SSA countries from 1996 to 2016 using panel models and bootstrapped quantile regression. It uses a devised mathematical model which introduces the interaction between tax revenue and double tax treaties and measures the social welfare impact using the human development index (HDI).

The findings have broadly shown that (i) the net effect from the complementarity between tax revenue and double tax treaty (DTTs) in influencing the human development is for the most part negative (ii) the impact of tax revenue from international trade has the most positive net effect as compared to other tax revenues when interacted with the DTT and (iii) the DTT complements the tax revenue from income, profits and capital gains to progressively increase human development in the upper quartiles of HDI.

This study has examined how the presence of double tax treaties has impacted the effect of tax revenue on human development in 21 SSA countries for the period 1996–2016. A mathematical model was devised and bootstrapped quantile regression was used owing to the specificities of the sample. In accordance with recent literature on net effects, the results were interpreted.

It is evident that further research is required on whether double tax treaties are indirectly responsible for poverty on the rise in SSA countries or on the contrary, they bring FDI alongside with other positive spillovers which in the end contribute to a rise in the human development aspect of societies in developing host economies.

The HDI is an important measure used nowadays for human development as a proxy for social welfare. This research will use an HDI mathematical model devised by Sinha and Sengupta (2019) and adapt it to the context to testing econometrically whether double tax treaties have an impact on welfare or poverty reduction. The empirical results will help determine whether tax treaties are impacting the social welfare positively or negatively.

This result is the first research attempt to consider both the impact of tax revenue (which is expected to have a positive impact on social welfare of the people of the host developing countries) and the impact of double tax treaties simultaneously. It is the first empirical study focusing on the impact of tax revenue on human development in the presence of double tax treaties. Its methodology is original and adds to the current literature to benefit policymakers and academia.

Governments throughout the world have sought, and are seeking, to attract foreign direct investment (FDI) and, for that purposed, have liberalized their national regulatory frameworks for FDI and established a strong international investment law regime. However, there are signs that, as a result of a number of important developments (which are being discussed in some detail in this chapter), governments are re-evaluating their stance toward FDI, or at least certain types of it. This re-evaluation has found its expression in a number of regulatory changes that may eventually lead to a regime that balances the rights of investors and host countries in a manner that places more emphasis on maintaining policy space for host-country governments while still protecting foreign investors.

The policy choices of Eurasian states whether to form a coalition along with the “Eurasia Initiative” can be explained by the cooperative game theory. While the each bilateral relationship before making a binding agreement seems to be a non-cooperative game, the coalitions with many other states through a binding agreement of Mega-FTA would be a cooperative game. Despite the lack of numerical data, this study at least tries to show the possibility of applying the game theory to analyze the “Eurasia Initiative” and it’s the impacts of Mega-FTAs on this ambition. While the Eurasia Initiative necessarily involves some economic projects requiring enough investment promotion, Korea can strategically set up the policies linked with the development of Mega-FTAs. To utilize the investment promotive effect of Mega-FTAs, Korea has to assure that the core of the cooperation game would be the grand coalition of a Mega-FTA. If it continues to search for the best policies to maximize the superadditivity of this cooperative game, Korea will finally be able to achieve the co-promotion of Mega-FTAs and the Eurasia Initiative.