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113 J.L. Pol'y & Globalization 1 (2021)

handle is hein.journals/jawpglob113 and id is 1 raw text is: ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.113, 2021 115% Africanacity of International Investment Law: A Reflection on Investment Agreements in Africa Ally Possi* Abstract In recent times, we have been witnessing the re-making of international investment law (IIL) architect maiden from Africa. The reforms shift the IIL paradigm by establishing adequate policy space to the host state, reiterating state sovereignty and, significantly, introducing obligations imposed on the foreign investors. Alongside these reforms, Africans are persistently negating the speculative imbalanced international investor- state dispute settlement (ISDS) system by suggesting local alternatives. These reforms can be traced to the Pan African Investment Code of 2016, which shapes the African IIL agenda. Thus, this monograph discusses Africa's recent surge of reforms on IIL which transform the traditional regime. These commendable reforms give African states an opportunity to regulate IIL and guard their own interests. Yet the reforms are already showing some signs of incoherence, particularly on the binding nature of investment treaty models and on ISDS mechanisms, which may potentially negate the thrust of what this monograph dubs as the Africanacity of IIL. Keywords: Africanacity, International Investment law, Investment Treaty Model, ISDS, RECs, Sub-regional. DOI: 10.7176/JLPG/113-01 Publication date: September 30th 2021 1. Introduction In recent decades, African states have been transforming international investment law (IIL) through treaty reforms and the enactment of domestic law.1 These reforms provide a genuine gesture of what this monograph dubs as the Africanacity of IIL. The reforms redirect the historical path that most African countries have had to follow as constrained by the unexpected outcomes of receiving foreign investment. The current developments in investment law and policy in Africa are driven by Africa and permeate through bilateral, regional and global international instruments. Ordinarily, the IIL regime is subject to customary international law, bilateral, regional, and multilateral investment treaties, and free trade agreements (FTAs) with specific investment provisions or chapters.2 In this monograph, the stated reforms are dubbed as the Africanacity of IIL. The term is used in the sense of preserving African interests in establishing investment policy, legal and institutional frameworks that govern IIL. There is a surge of IIL transformation through regionalism in the entire world, 3 and African intergovernmental organisations are not to be left behind as this takes place. It comes at a time when most of the investment agreements in Africa were endorsed during the post-colonial era, the time in which African states were desperate to reinvent their economies.4 During that period the field was notorious5 (in fact, it still is) for the complicity of investors in the host states and the controversies they generated,6 including the jurisprudence emanating from the arbitral tribunals. IIL in Africa is dominated by bilateral investment treaties entered into between African countries and LLB (Mzumbe); LLM (UCT); LLD (Pretoria) Post-Doctoral Fellow (North-West University, South Africa); Advocate of the High Court of Tanzania/Zanzibar; Deputy Permanent Secretary, Ministry of Information, Culture, Arts and Sports - United Republic of Tanzania (allv.possi(tthotmail.com). Views expressed in this article do not in any way express views of the Government of the United Republic of Tanzania. ' See Akinkugbe, O.D., Africanization and the reform of international investment law, Case Western Reserve Journal ofInternational Law, 53.1, 2021, pp. 7-32. For novelty on Africanisation of International investment law see: Nagar D. & Mutasa C., Africa and the world: bilateral and multilateral international diplomacy, Cham: Springer, 2018; Mbengue M. M & Ngangjoh-Hodu Y. (eds), African perspectives in international investment law . Manchester, Manchester University Press, 2020; Schill S.W., The New African Regionalism in International Investment Law, Journal of World Investment & Trade, 18.3, 2017, pp. 367-369; Gathii J.T., Agreement Establishing The African Continental Free Trade Area, International legal materials, 58.5, 2019, p. 1028-1083; Adeleke F., International investment law and policy in Africa: exploring a human rights based approach to investment regulation and dispute settlement, Oxon: Routledge, 2017; Odularu G. & Bamidele A., Negotiating south-south regional trade agreements: economic opportunities and policy directions for Africa, Cham, Springer Nature, 2017; Nwankwo C.M., Balancing international investment law and climate change in Africa: assessing vertical and horizontal norms, Manchester Journal of International Economic Law, 17.1, 2020, p. 48-63; Collins D., An Introduction to international investment law, Cambridge: Cambridge University Press, 2017 at 39. 2 Investment policies and bilateral investment treaties in Africa: implications for regional integration, United Nations Economic Commission for Africa (Feb. 2016), https://www.uneca.org/sites/default/files/PublicationFiles/en (accessed 24 July 2021). s Akinkugbe O.D., Theorizing developmental regionalism in narratives of African regional trade agreements, African Journal of International Economic Law, 1.1, 2020, pp. 291-320. 4 Mbengue M.M. & Schacherer S., The 'Africanization' of international investment law: the pan-African investment code and the reform of the international investment regime, Journal of World Investment & Trade, 18.3, p. 437-448, at 437. 5 See Sornarajah M., The international law and foreign investment, Cambridge: Cambridge University Press, 2004. 6 See generally, Odumosu IT., The antinomies of the continued relevance of ICSID to the third world, San Diego International Law Journal, 8.1, 2007, pp. 345-384, at 346. 1 Journal of Law, Policy and Globalization Iisllste.Or,

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