Overview

A large amount of foreign direct investment (FDI) has been poured into Africa in recent decades and these investments can come with adverse effects on the environment, human rights, and development. At the same time, investment treaties, entered into by African states and aimed at promoting and protecting FDI, seriously limit those states' ability to regulate such activities in the interests of affected communities. Whilst these tensions have generated global debate, little attention has been paid to the legal status of many of these investment treaties, and whether - given their constitutional and customary international law obligations to act in the public interest - African states truly have the capacity to conclude treaties which contain standards of investment protection expressly preventing or unduly abridging the exercise of their regulatory authority. Focusing on this question, The Investment Treaty Regime and Public Interest Regulation in Africa presents The Imperatives Theory: a legal, normative, and principled framework for rethinking the legal status, making, and reform of investment treaties and investment dispute settlement in Africa, with relevant and significant implications for the global investment treaty regime.

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9780192896179

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The question of how constitutional, human rights and environmental law limit government powers to conclude investment agreements, provide legal and economic privileges to foreign investors, and limit regulatory freedoms and duties has remained under-researched, notably outside Europe. This book enriches the investment law literature by comparative studies of the constitutional and human rights obligations of African countries and of their frequent neglect in investment treaties, adjudication and arbitration practices. It raises a host of new legal, policy and research questions that will become increasingly important for economic, environmental and 'survival governance' in times of health pandemics, climate and technological changes and related economic and human rights crises. * Emeritus Professor Ernst-Ulrich Petersmann, European University Institute, Italy * In this path-breaking book, Dominic Dagbanja raises the important issue whether states which are constitutionally required to promote the public interest can make investment treaties which constrain their power to do so. Dagbanja has explored the issue in the context of the constitutional provisions of several African states. He considers the issue in the context of international obligations in the areas of human rights, the environment, development and judicial sovereignty. The conclusions he draws have global significance. The work provides a powerful case for the re-examination of the existing system of investment treaties. It will illumine discussions on this important area of international law for many years to come. * Emeritus Professor Muthucumaraswamy Sornarajah, National University of Singapore, Singapore. * In the best TWAIL traditions, Dagbanja challenges the primacy of foreign investors' interests over states' constitutional responsibilities to their people. This thoughtful, meticulous and at times provocative analysis for Africa offers a significant contribution to broader international investment treaty reform, including for the Global North. * Professor Jane Kelsey, The University of Auckland, New Zealand * With careful and detailed analysis, Dominic Dagbanja has defended the role and responsibility of any state to protect its people. As he demonstrates compellingly, a state cannot, by concluding an investment treaty, alter this essential purpose of its existence. While Dagbanja focuses on African states, his analysis is relevant to all states and indeed all people. Above all, Dagbanja shows carefully and credibly that human survival and wellbeing are the top priority of the state in law and how those interpreting and applying international investment law must recognize this essential truth for any of its legitimate goals to be realized. * Professor Gus Van Harten, York University, Canada * Even literature which is critical of the scope and effect of international investment treaties often takes their legal status for granted. By contrast, this book connects policy failures and power imbalances to fundamental questions of domestic constitutional authority and international legal validity. Its radical move is to take seriously what state constitutions say about the purpose and functions of the state (the protection and advancement of the welfare of the people). For Dagbanja, these broad constitutional provisions, together with principles of international law (especially concerning human rights and the environment), ground substantive limits on the legal power of states to bind themselves to treaties which restrict their ability to regulate in the public interest. Combining a novel and ambitious theoretical framework (the 'Imperatives Theory') with detailed case-study analysis (focusing on Cameroon, Egypt, Ghana, Kenya, Nigeria and South Africa), the book questions the capacity of the developmental state in Africa to perform dutifully the role international economic law prescribes for it. The book challenges mainstream conceptions of what the state is for, whose interests it serves, and how best to understand the limits of its legal authority, and with it, the limits of international law - precisely by invoking (and then pushing on) their most conventional premises. Essential reading for scholars and practitioners of international economic law interested in the effect and legality of international investment treaties in Africa and beyond, the book's powerful arguments open up compelling new horizons for thinking in the field. * Dr Richard Joyce, Monash University, Australia *

Author Information

Dominic Npoanlari Dagbanja is a Senior Lecturer (International Investment Law) at The University of Western Australia Law School; Research Fellow, African Procurement Law Unit, Department of Mercantile Law, Stellenbosch University, South Africa, and Associate Director of Community Engagement of UWA Africa Research and Engagement Centre. He was an Investment Policy Consultant to the United Nations Conference on Trade and Development, Postdoctoral Research Associate at The University of Manchester Law School and Lecturer in Law at Ghana Institute of Management and Public Administration. Dominic Npoanlari Dagbanja has published extensively in International Investment Law and Public Procurement Law and Policy in reputable peer-reviewed international law journals including: African Journal of International and Comparative Law, Cambridge Law Review, Oxford University Commonwealth Law Journal, Public Procurement Law Review, Transnational Corporations and Transnational Legal Theory.

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