Abstract:
On the 7th of July 2019, African Leaders marked the launch of the operational phase of the
African Continental Free Trade Agreement (AfCFTA). Among its main objectives, this
Agreement aims to contribute to the movement of capital and to facilitate investment building
on the initiatives and developments in the State Parties and Regional Economic Communities
(RECs). It also seeks to resolve the challenges of multiple and overlapping membership to
RECs, with the overall goal of enhancing and deepening greater regional integration. The
upcoming drafting of an Investment Protocol under the Protocol presents an apt opportunity
for the Continent to address the concerns of many African States with the Current Investor
State Dispute System (ISDS) which is centred on international arbitration most frequently
under the auspices of ICSID. Although globally there has been growing dissatisfaction with
this system, the arguments of African States against it are nuanced to their overall weaker
economic positions in the global economy. It is the view of many African States and the
Global South at large that this system presents extensive costs which have led to regulatory
chill particularly in environmental matters, that the system lacks African representation and
finally that the power imbalance fostered is in favour of investors against States. Such
discontent has been signalled over the past decade by a trend by both individual States and
RECs to withdraw from this system in favour of the resolution of investment disputes at
National levels. This has resulted in a mirage of investment dispute resolution laws on the
Continent coupled by several regional dispute resolution principles under the RECs, which do
not always correspond or complement one another. Recognising that a clear investor
protection regime and more particularly a clearly delineated and trusted dispute resolution
mechanism is significantly influential towards the attraction of Foreign Direct Investment
(FDI), this research will ascertain how the continent through the adoption of a binding
Investment Protocol can address the concerns of Member States with the current ISDS
system without compromising investor security. This will be achieved through a study of the
lessons of the RECs in addressing this problem and reconciling the experiences of the RECs
with the leading proposals from African 5 scholars. In a final analysis a plausible model for
the harmonisation of Investor-State Dispute Resolution for the continent will be forwarded.
