Investor-state arbitration and African states: a proposal for a Pan-African investment court

This thesis proposed for the reform of Africa’s Investor-State Dispute Settlement (ISDS) landscape through the establishment of a Pan-African Investment Court (PAIC) as a mechanism for the resolution of Investor-State Disputes. This proposal is influenced by the findings of my investigation on the functioning of Investor-State Dispute Settlement (ISDS) through the deployment of Investor-State Arbitration to resolve Investor-State Disputes between African states and foreign investors.

This research is motivated by the criticisms of the Arbitration mechanism by a broad spectrum of constituencies within international investment law. These criticisms are primarily anchored on the legitimacy crises of ISDS, a dissatisfactory notion that denounces the deployment of the private mechanism and privity of contract ingrained investment arbitration framework to resolve publicly-inclined investor-state disputes. Ancillary to this critical holy grail are further dissatisfactions on the practical functionality of investment arbitration in aspects of high volume of cases against developing states, lack of diversity in the appointment of arbitrators and curtailment of sovereignty of host states through the intrusion of provisions of International Investment Agreements on legitimate internal decision-making powers.

Consequently, this thesis investigated the practical functioning of ISDS in African states. After the study of the experiences of Egypt, South Africa and Tanzania; it was found that the legitimacy crises of ISDS also impacts on African states, and does not support their socio-economic and sustainable developmental aspirations. As a remedy, I proposed for a reform to an Investment Court System (ICS) through the establishment of a Pan-African Investment Court (PAIC). An evaluation of this recommendation was conducted that evidenced potential challenges that may mitigate its feasibility, thus leading to the advancement of two secondary reform alternatives vis the reform and retention of the current investor-state arbitration framework and engagement in innovative treaty-making practices by African states.

To the best of my knowledge, this thesis has not been previously submitted in any higher institution or published by another person. The contents of this thesis are my ideas. Where the materials of others were used, due acknowledgement and reference was provided.
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