The Investment Treaty Regime and Public Interest Regulation in Africa

Abstract Regulatory autonomy inheres in state sovereignty. Legally, it arises out of states’ primary duties to regulate in the public interest which are sourced from national constitutions and general international law. Accordingly, states commonly invoke national constitutions and general international law in defence of measures challenged in investor-state arbitration. The capacity of states to make treaties is equally founded on these legal norms which are necessary for the coming into existence, legal status and juridical consequences of a treaty. The premise of this book, then, is that an analysis of investment treaties and states’ right to regulate must start with the legal and normative limits to states’ capacity to conclude investment treaties. Thus, based on a constitutional-general international law imperatives analysis, this book develops the imperatives theory as a legal and principled framework for explaining the intersection of investment treaties and regulatory autonomy, and the legal status of investment treaties and investor-state arbitration in Africa. It addresses, and answers affirmatively, the a priori question of whether fundamental constitutional and general international law obligations of African states towards citizens place limitations on their competence to conclude investment treaties. It makes a case for the public interest to be prioritised in Africa’s participation in international investment rule-making and for investment treaties to be concluded subject to states’ public interest obligations. This book, a form of resistance towards the investment treaty regime, presents revolutionary perspectives on the necessity, making and reform of investment treaties and investor-state arbitration in Africa with global implications and significance.