Abstract
Africa is abundantly endowed with natural resources, such as minerals, oil and gas. To exploit those resources and bring them to the market, it has been necessary to involve foreign multinational extractive companies that have the required technical and managerial expertise. While the terms on which these companies undertook such projects were determined for long by brute force, the instrument of choice today is the web of treaties, contracts, and institutions that may be collectively termed international investment law. This article examines the complex relationship between this body of international law, on the one hand, and the sovereignty of states over their natural resources, on the other, from the perspective of African countries. Adopting historical, theoretical and jurisprudential analyses, this contribution argues that the competition between developed countries and developing countries for control of extractive resources defined both the content and the evolution of international investment law. This article further finds that contemporary international investment law significantly erodes the state’s sovereignty over its natural resources by, at the minimum, (1) limiting its legislative jurisdiction through the doctrine of internationalisation of the investment contract and stabilisation clauses, and (2) virtually eliminating its judicial jurisdiction through the almost uniform adoption of international arbitration as the means to settle investment disputes. The article concludes by calling on African countries to work together through their regional and continental institutions, develop common positions, conduct a comprehensive review of their respective bilateral and other investment treaties and related national legislation and natural resources contracts, terminate those that undermine their national interests or renegotiate them based on regionally- and/or continentally-harmonised policy frameworks.
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- 1.
The 2012 US Geological Survey reported that Africa “ranks first or second among the continents in share of world reserves of bauxite, chromite, cobalt, ilmenite, industrial diamond, manganese, phosphate rock, platinum-group metals (PGM), rutile, soda ash, vermiculite, and zirconium.” See Yager et al. (2012).
- 2.
As the Africa Progress Panel (APP) observed, on a per square kilometer basis, Africa spends less than a tenth of what major producers such as Australia and Canada spend on exploration. See Africa Progress Panel (2013), p. 41.
- 3.
See African Development Bank (2012).
- 4.
The Economist (10 January 2015).
- 5.
As the Africa Progress Panel put it, “there is no automatic relationship between resource wealth and progress in human development. What counts is well-designed public policy, backed up by government commitment.” APP Report (2013), 19.
- 6.
Throughout this paper, I use the term ‘natural resources’ to mean hydrocarbons and minerals.
- 7.
See Stevens et al. (2013), p. x.
- 8.
This picture is changing with the arrival of major resource companies from emerging countries, such as Brazil, China and Malaysia, but by far the dominant players in the sector still come from the OECD.
- 9.
For more on this, see World Bank (2009). UNCTAD also reported ‘a strong link between dependence on natural resources and the risk of civil war and other conflicts and their prolongation’, as well as ‘detrimental impacts of natural resource dependence on governance and human rights, … particularly in sub-Saharan Africa. Oil and diamonds in Angola, diamonds in Sierra Leone and Liberia, cobalt and other minerals in the Democratic Republic of the Congo and oil in Sudan have fuelled lengthy civil wars.’ See UNCTAD (2008), p. 95.
- 10.
See Vernon (1971).
- 11.
- 12.
There is a large and growing body of literature in this area. For an authoritative and critical analysis of the investment regime, see Sornarajah (2004).
- 13.
See, e.g. Domingo (2009), noting at 1557 that sovereignty is ‘a property inherent to any state, which gives it supreme power in its territory, control of its legal system, and the right to recognize external bodies or entities that establish contact with it.’
- 14.
International financial institutions, such as the World Bank and regional development banks, could also provide some limited financing for natural resources projects, but they often put the involvement of foreign mining or oil and gas companies as a condition for financing such projects. As Professor Wälde noted three decades ago, ‘financial institutions are unwilling to contribute capital if they are not assured that an experienced mining company will be in charge of operations and will assume strict completion guarantees.’ Wälde (1983), p. 245.
- 15.
To attract foreign investment, World Bank advice to resource-rich countries would emphasise the need to put in place a guarantee of mining rights before starting exploration, to institute a well-established mining code and a system of contractual stability, a stable fiscal regime, accelerated depreciation and amortisation, opportunities for profit repatriation, and access to foreign exchange at realistic rates. See World Bank (1992), p. 17.
- 16.
The World Bank also observed that “[a]n investment agreement is often an indispensable condition for foreign investors for major projects in developing countries where the risk of unilateral changes by the government to the investment rules is considered unduly high by investors because of political circumstances, lack of track record and economic difficulties.” See World Bank (1992), p. 25.
- 17.
For a recent survey of stabilisation clauses, see Shemberg (2009).
- 18.
The World Bank noted that average return on equity required or targeted on investment in developing countries was 25–30%, with a payback of 2–4 years as opposed to 20% and a payback of 5–6 years in industrialised countries. See World Bank (1992), p. 17.
- 19.
Through these contracts, firms win “special privileges or exemptions regarding taxes and foreign exchange regulations”. See World Bank (1992), p. 30.
- 20.
According to Coll, ‘Chad’s take of less than two thirds of revenue after expenses compared to rates closer to 90 percent in Nigeria’. Coll (2012), p. 160.
- 21.
Id., 170. Coll does not say when the Convention for Exploration, Exploitation and Transportation of Hydrocarbons was signed but we can find an indication of the time from the fact that Goldthwait served as US Ambassador to Chad between October 1999 and January 2004.
- 22.
- 23.
Vernon (1971), p. 47.
- 24.
Vernon (1971), p. 48.
- 25.
See also Lehavi and Licht (2011), pp. 115–166 (highlighting the political economy context within which Vernon coined the theory, the empirical evidence from the 1970s that proved the predictive power of the theory, and the debt crisis of the 1980s, along with the triumph of market liberalism starting from the late 1980s, which led to a marginalisation of the theory).
- 26.
See Wälde and Ndi (1996), p. 221.
- 27.
Cameron (2013), p. 313.
- 28.
Vernon wrote: ‘As foreign raw material operations become more and more integrated in the economic life of host countries – through increasing payments to government and the increasing use of local labor, materials, and resources – the vulnerability of the economy to changes in these operations inevitably seems to increase. The psychic sense of dependence on foreign interests generated by this situation has produced occasional eruptions. … the sense of dependence that host governments experienced was at times beyond bearing.’ Vernon (1971), p. 52.
- 29.
See Hogan and Sturzenegger (2010, eds.).
- 30.
Id., p. 3.
- 31.
- 32.
Professor Paul Collier describes the resource curse phenomenon as ‘the tendency for many low-income commodity exporters to experience slower economic growth than countries that are less well-endowed with resources.’ Collier (2008), p. 11. See also Duruigbo (2006), noting that the problem in this area can better be described as a “leadership curse” whereby “kleptocratic rulers cause a wake of thieving frenzy, a cascade of catastrophes.” Id. 34.
- 33.
For a treatment of present-day international investment law as a regime, see Salacuse (2010).
- 34.
Under the principle of diplomatic protection, if a foreign investor company suffers from an unlawful act, ‘the general rule of international law authorizes the national State of the company alone to make a claim.’ See ICJ, Barcelona Traction (Belgium v. Spain) Judgment of 5 February 1970, ICJ Rep 3.
- 35.
See, e.g. Dodge (2000).
- 36.
The dominant economic view of the era of economic imperialism demanded possession of African territory, which was deemed ‘necessary in order to serve as a market for the products, and a source of the raw materials of the industry, of the citizens of European States.’ Woolf (2012), p. 324.
- 37.
The Atlantic Charter was just that, a communiqué; it was not even signed by the two leaders ‘in order to avoid having to have it ratified as a treaty by the U.S. Senate. For an insightful account of the drafting history of the Atlantic Charter, see Steil (2013), pp. 118–121.
- 38.
See US Department of State (1941).
- 39.
Id., emphasis added. Steil describes the negotiation process on the fourth principle as ‘the hornet’s nest’. Steil (2013), p. 119.
- 40.
On the history of the ITO project, see Irwin et al. (2008).
- 41.
See GATT (1995), p. 6.
- 42.
See Salacuse (2010), p. 88.
- 43.
See Craven (2007), p. 90. Ghana became the first country in Sub-Saharan Africa to gain its independence in 1957.
- 44.
For early views of the debate whether newly independent states were to start with a clean slate or be subjected to restrictions and commitments undertaken during colonial days, see Bedjaoui (1968), arguing that ‘a concessionary contract must end with the extinction of the personality of the ceding State and could survive the change of sovereignty only at the express wish of the new authority’. Id., 115. For a modern analysis of the doctrines of clean slate v succession, see Craven (2007), pp. 29–52.
- 45.
Strange (1996), p. 13.
- 46.
See Schwebel (1963), p. 463.
- 47.
- 48.
- 49.
- 50.
Daniel Yergin, in his authoritative account of the oil industry in the twentieth century, recounts the story of oil contract renegotiations that started with the fifty-fifty formula in Venezuela in 1943 and spread to Saudi Arabia and others around 1950 and the nationalisation of the Anglo-Iranian oil company by the Mossadegh government in 1951, the nationalisation of the Suez Canal company by the Nasser government in Egypt in 1956, etc., all of which would naturally have shaped the position of the capital exporting countries during the PSNR negotiations. See Yergin (1991), pp. 431–498. The formation of OPEC in 1960 could only exacerbate their concerns.
- 51.
See Anghie (2005), p. 221.
- 52.
See UNGA Resolution 3201 (S-VI), 1974, para. e.
- 53.
See UNGA Resolution 3281 (XXIX), 1974.
- 54.
See UNGA Resolution 3201 (S-VI), 1974, para. e.
- 55.
Ibid.
- 56.
See Texaco award, 17 I.L.M. (1978), paras. 88–91.
- 57.
See Schwebel (2004), p. 28.
- 58.
See Alvarez (2011a), p. 124.
- 59.
Gardner (1974), p. 564.
- 60.
Thomas Wälde later observed that some global institutions like the World Bank ‘act as successors to the former colonial administrations, with a social-engineering mandate for economic development that seems to succeed rarely if ever.’ See Wälde (2004), p. 14.
- 61.
For a fascinating story of how the negotiations for this Convention took place, see Lowenfeld (2009).
- 62.
See Lowenfeld (2009), p. 52.
- 63.
Puig (2013), pp. 542–543.
- 64.
See Lowenfeld (2009), p. 54.
- 65.
As Lowenfeld noted, ‘only eleven disputes were brought to the Centre in its first fifteen years, and only six resulted in a final award.’ Lowenfeld (2009), p. 55. As Alvarez reminds us, although the first BITs date back to the late 1950s, they were mostly weak; it was in the 1980s that truly investor-protective BITs emerged, and the US played a leading role in their birth. See Alvarez (2011a), p. 126.
- 66.
Reisman (1987), p. 137.
- 67.
For an insightful summary of the competing explanations as to why so many developing countries advocated the NIEO principles so passionately and signed BITs that completely undermine the letter and spirit of the NIEO movement, see Alvarez (2011a), pp. 123–143.
- 68.
Carlos Calvo’s home state Argentina signed a BIT with the US ‘whose text is, except for its Protocol, identical to that of the 1987 U.S. Model BIT Text.’ Alvarez and Khamsi (2009), p. 408.
- 69.
According to Nico Schrijver, Nigeria used this expression during UN General Assembly debates on Resolution 1803, apparently referring to the phrase ‘freely entered into’, presumably in paragraph 8 of the Resolution, which provides: ‘Foreign investment agreements freely entered into by, or between, sovereign states shall be observed in good faith’. See Schrijver (1997), p. 263.
- 70.
Paulsson (2010), p. 349.
- 71.
A recent survey by UNECA shows that of the roughly 2750 BITs in the world today, over 850 involve an African country; 157 of them are intra-African while the remaining 696 are with the rest of the world. See UNECA (2016), p. 16.
- 72.
See UNCTAD (2000), p. 53. It is notable that no reference to this treaty appears in UNCTAD’s otherwise most resourceful Investment Policy Hub available at http://investmentpolicyhub.unctad.org/IIA/CountryBits/39 (accessed 03 December 2016).
- 73.
The first BIT between two African countries was signed on 25 September 1982 by Egypt and Somalia. See http://investmentpolicyhub.unctad.org/IIA/CountryBits/194#iiaInnerMenu (accessed 03 December 2016). Ethiopia signed its first BIT (with Germany) only on 21 April 1964 while its second came 30 years later when it signed one with Italy on 23 December 1994. See UNCTAD Investment Policy Hub at http://investmentpolicyhub.unctad.org/IIA/CountryBits/67#iiaInnerMenu (accessed 03 December 2016). The number of BITs involving African countries has continued to grow since, but the amount of FDI flowing to Africa in general, and sub-Saharan Africa in particular, has remained miniscule. Africa’s share of global FDI in 2014 was just under 4.4%. See UNCTAD (2016), p. 34. Even more importantly, if we exclude FDI in services in Africa, which is highly concentrated in just a few countries, the little FDI that traditionally goes to sub-Saharan Africa is heavily concentrated in the extractive sector—minerals, oil and gas resources. See UNCTAD (2008), p. 82. Finally, there is generally little direct relationship between the national economic policy of a country and its ability to attract this type of FDI; what seems to decide here is the geology rather than the political-economy of these countries. See UNCTAD (2016), p. 8 (noting: “the geography of natural resources determines FDI in extractive industries to a high degree”).
- 74.
See Weiler (2015).
- 75.
- 76.
See Alvarez (2011b, Return of the State), p. 263 (referring to Michael Walzer as saying that ‘only those lucky enough to live in a functioning state can afford to suggest that [sovereignty] is “withering away.”’)
- 77.
See Jackson (2006), p. 69.
- 78.
In simpler days, wrote Henkin, sovereignty ‘implied several key elements. Primarily, it meant political independence. It also meant territorial integrity and virtually exclusive control and jurisdiction within that territory.’ Henkin (1999), p. 2 (footnotes omitted).
- 79.
- 80.
For an eye-opening discussion of the type of atrocities, genocide and crimes against humanity that have been committed under the watch of the UN, and the struggles to stop them, see Annan (2012).
- 81.
See Haass (2003).
- 82.
Fatouros (1964), p. 804.
- 83.
Haass (2003).
- 84.
This paraphrasing is based on Haas’s description of the four main characteristics of sovereignty, Id.
- 85.
See Greenwood (1982), p. 41.
- 86.
For a useful summary of the extensive debate surrounding the concept of internationalisation of state contracts, see Maniruzzaman (2001), pp. 309–328.
- 87.
- 88.
Lena Goldfields award, para. 22, extracts reproduced in Nussbaum (1950), p. 50 (emphasis added).
- 89.
Arthur Nussbaum rightly commented that ‘such a splitting of applicable legal systems was not warranted; the “proper law” of the entire contract was Soviet.’ Nussbaum (1950), p. 36.
- 90.
- 91.
For early reflections on this practice, see Greenwood (1982).
- 92.
Id., 43.
- 93.
As Judge Higgins put it, ‘the best way to avoid sole reliance on domestic law is, one has to say, by having a governing law clause that introduces international law. If, in the bargaining process, the private party has been unable to accomplish this, it seems doubtful that international arbitrators should remedy that which one of the negotiating parties was unable to achieve.’ Higgins (1994), p. 141.
- 94.
According to Maniruzzaman, the theory of internationalisation suggests that, ‘no matter what law the parties to [a state] contract choose as the proper law of the contract, international law superimposes their choice and applies automatically as the overriding governing rule.’ See Maniruzzaman (2001), p. 309.
- 95.
Abu Dhabi arbitration (1952), p. 250.
- 96.
Abu Dhabi arbitration (1952), p. 252.
- 97.
Id., 252–253.
- 98.
Id., 253.
- 99.
Id., 253. The arbitrator understood this ‘modern law of nature’ to mean Ibid.
- 100.
See Lalive (1964), p. 1009.
- 101.
See Lalive, Id.
- 102.
See Aminoil arbitration (1982), p. 1000.
- 103.
Alvarez (2009) Empire of Law, pp. 943–975.
- 104.
But, the application of the international minimum standard to a country as a minimum threshold that it must make available to foreign investors in its territory is not the same as making international law the only applicable law. For a discussion of the distinction between these two, see Maniruzzaman (2001).
- 105.
Bedjaoui (1979), p. 101.
- 106.
See, e.g. Dolzer and Schreuer (2008), p. 271.
- 107.
Higgins (1994), p. 141.
- 108.
The umbrella clause expressly requires the host state ‘to observe any obligation it may have entered into with regard to foreign investments, that is converting (or purporting to convert) contracts subject to domestic law into international obligations.’ See Lowenfeld (2009), p. 58.
- 109.
- 110.
However, stabilisation obligations today may come from international treaties, as well as unilateral undertakings contained in municipal law. This article deals with traditional stabilisation clauses as contained in international investment contracts, for the simple reason that to the extent they are contained in municipal law or international treaties, stabilisation clauses impose constraints on sovereignty just like every other law does and in every country. Stabilisation clauses contained in investment contracts, on the other hand, are as a matter of empirical fact limited to developing countries. For more, see Shemberg (2009).
- 111.
Total v Argentina, (2010), para. 100 (emphasis added).
- 112.
As Cameron rightly pointed out, the debate on stabilisation clauses first began when “the post-colonial investment regime [was] in place”. Cameron (2013), p. 312.
- 113.
Wälde and Ndi (1996), p. 218.
- 114.
See Shemberg (2009), pp. 17, 21–22 and 32.
- 115.
Id. p. v. In fact, many OECD countries do not just exclude stabilisation clauses; they often explicitly reserve the power to unilaterally modify contracts with private operators. For a discussion of such clauses in France, the UK and the US, see Norton (1991), pp. 492–493.
- 116.
For a useful analysis, see (2010).
- 117.
- 118.
This might look obvious in the face of today’s virtual consensus in the arbitration jurisprudence, but as recently as 1960, Dr Mann argued otherwise. See Mann (1960), pp. 587–588.
- 119.
See Aguaytia Energy, LLC v Republic of Peru (ICSID Case No ARB/06/13, award of 11 December 2008a), para. 95.
- 120.
See, e.g., Total v Argentina, ICSID Case No. ARB/04/1, Decision on Liability (27 December 2010), para. 117.
- 121.
See Mobil v Canada, ICSID Case No. ARB(AF)/07/4, Award, 22 May 2012, para. 154.
- 122.
See the Texaco Award, where the arbitrator ordered specific performance as a remedy, but this aspect of the award became irrelevant as Libya and the companies reached a settlement soon after the award was issued. See Elder (1997).
- 123.
A good example of this came from the mid-1970s when the ICSID tribunal in Alcoa Minerals of Jamaica v. Jamaica, ruled that Jamaica was in breach of the stabilisation clause contained in the long-term contract it had signed with Alcoa for bauxite mining. For more on this, see Igbokwe (1997), p. 120.
- 124.
See the Supreme Court of Israel, High Court of Justice 4374/15, 7588/15, 8747/15, 262/16, The Movement for Quality Government v. The Prime Minister of Israel, Regarding the Gas Outline that was Prescribed in Government Decision 476 Summary of Judgment, dated 27 March 2016, available at http://elyon1.court.gov.il/files_eng/15/740/043/t63/15043740.t63.pdf.
- 125.
Id. p. 2.
- 126.
See Id., opinion of Deputy President E. Rubinstein, p. 2. See also Joel Greenberg, “Israel’s supreme court blocks Leviathan gasfield deal”, Financial Times, 28 March 2016. The Court gave the government a year to revise the deal, failing which the entire deal would be cancelled.
- 127.
As the African Peer Review Mechanism (APRM) Country Review Report for Zambia found, “Enforcement of effective environmental and social ethical standards in the mining sector has been gravely complicated by the Development Agreements executed between the Government and the mining giants, which … provided for periods of stability of up to 20 years during which mining companies would be exempted from any changes in legal framework. This immunity coupled with the weak legal framework for this sector has led to grave unethical practices.” APRM Country Review Report No. 16 (2013), p. 214. In discussions held with several government officials particularly from resource-rich west African countries, the author has learnt that in some cases the duration of stabilisation commitments can be as long as 75 years during which beneficiary companies resist or frustrate government attempts to make regulatory changes in a variety of ways, including by refusing to comply with new laws when issued.
- 128.
What is interesting is that even some of the leading authorities of the day did not see this coming. Writing in 1963, Professor Brierley described the doctrine of diplomatic protection, identified some of its defects, such as the fact that the home state of the foreign investor might not be willing to take up his case, possible delays, and the like, and noted: ‘It has been suggested that a solution might be found by allowing individuals access in their own right to some form of international tribunal for the purpose.’ Brierley then added: ‘For the time being, however, the prospect of states accepting such a change is not very great.’ J L Brierley (1963) at 277, quoted in Blackaby and Partasides (2011), p. 467.
- 129.
- 130.
UNGA Resolution 1803 (1962), para. 4. The rest of this paragraph contains the following: ‘Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the state taking such measures in the exercise of its sovereignty and in accordance with international law.’
- 131.
See Lowenfeld (2009), pp. 48–49 (pointing out that ‘in comparison with the draft proposed by the Special Commission to the General Assembly, the first sentence was changed from “should” to “shall”—i.e. stronger for the host country, while the second sentence was changed from “may” to “should,”—i.e. stronger for the investors.’)
- 132.
For more on the history of ICSID, see Lowenfeld (2009), p. 51.
- 133.
The exhaustion of local remedies rule is ‘an established procedural rule of customary international law that a State may not espouse the claim of one of its nationals against another State unless the national has exhausted local remedies.’ Foster (2011), p. 204.
- 134.
As Professor Schrueur put it, ‘international investment arbitration dispenses with the requirement to exhaust local remedies, at least in principle. Article 26 of the ICSID Convention specifically does away with this traditional requirement “unless otherwise stated”’. Schreuer (2005), p. 1. Schreuer adds that while countries can insist on exhaustion of local remedies in their BITs, ‘clauses of this kind seem to be rare and are found mostly in BITs of older vintage.’ Id., 2.
- 135.
See Greenwood (1982), pp. 27–81, at 42. Former ICJ Judge Stephen Schwebel also noted that the resolution ‘is the capstone of more than ten years of consideration of the subject by the General Assembly, the Human Rights Commission, the Economic and Social Council and a special Commission on Permanent Sovereignty over Natural Resources.’ See Schwebel (1963), p. 463.
- 136.
- 137.
See Energy Charter Treaty, Art. 18:1.
- 138.
See Lowe (2007), p. 59.
- 139.
See Schwebel (2004), p. 28.
- 140.
See, e.g., Melnitzer (2016) describing the case of the first BIT claim brought against Canada by a developing-country investor (by Egypt). As Melnitzer observed, “the irony here is palpable. After all, investor-state dispute-resolution mechanisms were originally intended to protect investors from developed countries against unfair treatment from developing countries, where democracy and the rule of law were not necessarily priorities. As far back as 1994, NAFTA’s Chapter 11 was included in the treaty to protect US and Canadian investors against corruption in Mexico.”
- 141.
Alvarez (2011b Return of the State), p. 235.
- 142.
Alvarez (2011b Return of the State), p. 235. Alvarez also shows that several other countries, including Canada and China, are following this US lead in terms of their model BITs, while several countries are also making revising their national investment laws in more sovereignty-enhancing ways; interestingly, Alvarez also suggests that even some arbitral tribunals are turning in this direction: ‘The efforts to re-balance the rights of sovereigns vis-à-vis foreign investors [are] increasingly evident in the text of BITs, national laws, and even some arbitral awards….’ Id., 251–252.
- 143.
See Barbière (2016), noting: “Paris and Berlin want … ISDS removed from the transatlantic trade treaty currently being negotiated with Washington”, quoting French Secretary of State for Foreign Trade Matthias Fekl as saying he would “never allow private tribunals in the pay of multinational companies to dictate the policies of sovereign states, particularly in certain domains like health and the environment.”
- 144.
See Weiler (2015), p. 76.
- 145.
See, e.g. Singh and Ilge (2016).
- 146.
See Nolan (2016), noting South Africa and Indonesia “have terminated existing BITs that include ISDS provisions. … South Africa began terminating treaties in 2012 after a two-year review of its investment treaty obligations” which “followed ISCID arbitration by investors from Luxembourg and Italy in response to South Africa’s 2002 Mineral and Petroleum Resources Development Act.” Id., 434.
- 147.
For example, India’s 2015 Model BIT makes access to ISDS conditional on exhaustion of local remedies (see Art. 14.3 of Model BIT, available at https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf) (accessed 03 December 2016).
- 148.
See Mbengue (2016).
- 149.
Otherwise, as Alvarez warned, many African countries “will likely remain parties to older much more pro-investor BITs based on models comparable to those of the U.S. Model BIT of 1984.” Alvarez (2011b Return of the State), p. 260.
- 150.
For an excellent analysis, see Carim (2015), “International Investment Agreements and Africa’s Structural Transformation: A Perspective from South Africa”, South Centre Investment Policy Brief (No. 4 August 2015), https://www.southcentre.int/wp-content/uploads/2015/08/IPB4_IIAs-and-Africa’s-Structural-Transformation-Perspective-from-South-Africa_EN.pdf (making some well-thought recommendations to African policy-makers and experts, including to use the AU platform to conduct a comprehensive review of all their international investment agreements (IIAs), to pause signing new IIAs, and to consider developing an Africa-wide investment protection framework that serves their particular needs and interests.)
References
Abu Dhabi Arbitration (1952) In the matter of an arbitration between Petroleum Development (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi, Award of 1952. Int Comp Law Q 1:247–261
Africa Progress Panel (2013) Equity in extractives: stewarding Africa’s natural resources for all
African Development Bank (2012) Mining industry prospects in Africa. http://www.afdb.org/en/blogs/afdb-championing-inclusive-growth-across-africa/post/mining-industry-prospects-in-africa-10177/. Accessed 03 Dec 2016
Alter J, Gathii J, Helfer R (2016) Backlash against international courts in west, east and southern Africa: causes and consequences. Eur J Int Law 293–328
Alvarez J (2009) Contemporary foreign investment law: an ‘Empire of Law’ or the ‘Law of Empire’. Ala Law Rev 60:943–975
Alvarez J (2011a) The public international law regime governing international investment. Pocketbooks of The Hague Academy of International Law
Alvarez J (2011b) The return of the state. Minnesota J Int Law 20(2):223–264
Alvarez J, Khamsi K (2009) The argentine crisis and foreign investors: a glimpse into the heart of the investment regime. In: Sauvant K (ed) Yearbook on international investment law & policy, 2008–2009. Oxford University Press, Oxford
Aminoil Arbitration (1982) Award in the matter of an arbitration between Kuwait and the American Independent Oil Company (Aminoil), award 24 March 1982. ILM 21:976
Anghie A (2005) Imperialism, sovereignty and the making of international law. Cambridge University Press
Annan K with Mousavizadeh N (2012) Interventions: a life in war and peace. Allen Lane, 2012
Barbière C (2016) France and Germany to form united front against ISDS. http://www.euractiv.com/section/trade-society/news/france-and-germany-to-form-united-front-against-isds/. Accessed 03 Dec 2016
Bedjaoui M (1968) First report on succession of States in respect of rights and duties resulting from sources other than treaties, ILC A/CN.4/204
Bedjaoui M (1979) Towards a new international economic order. Holmes and Meier, New York, London
Blackaby N, Partasides C with Redfern A and Hunter M (2011) Redfern and Hunter on international arbitration. Oxford University Press, Oxford
Brierley J (1963) The law of nations. Oxford University Press, Oxford
Cameron (2013) Reflections on sovereignty over natural resources and the enforcement of stabilization clauses. In: Sauvant K (ed) Yearbook on international investment law & policy 2011–2012. Oxford University Press, Oxford
Carim X (2015) International investment agreements and Africa’s structural transformation: a perspective from South Africa. South Centre Investment Policy Brief. https://www.southcentre.int/wp-content/uploads/2015/08/IPB4_IIAs-and-Africa’s-Structural-Transformation-Perspective-from-South-Africa_EN.pdf. Accessed 03 Dec 2016
Chimni B (2007) Just world under law: a view from the south. Am Univ Int Law Rev 22:199–220
Coll S (2012) Private Empire: ExxonMobil and American Power. Allen Lane
Collier P (2008) Essay: laws and codes for the resource curse. Yale Hum Rights Dev Law J 11:9–28
Cotula L (2010) Pushing the boundaries vs striking a balance: some reflections on stabilization issues in light of Duke Energy International Investments v. Republic of Peru. Transnational Dispute Management. https://www.transnational-dispute-management.com/article.asp?key=1571. Accessed 03 Dec 2016
Craven M (2007) The decolonization of international law: state succession and the law of treaties. Oxford University Press, Oxford
Delaume G (1997) The proper law of state contracts revisited. ICSID Rev – Foreign Invest Law J 12:1–28
Desta MG (2015) Sovereignty over natural resources and international investment law: the elusive search for equilibrium. In: Hofmann R, Schill SW, Tams CJ (eds) International investment law and development: friends or foes? Edward Elgar, pp 223–255
Dodge W (2000) National courts and international arbitration: exhaustion of remedies and Res Judicata under Chapter Eleven of NAFTA. Hastings Int Comp Law Rev 23:357–383
Dolzer R, Schreuer C (2008) Principles of international investment law. Oxford University Press, Oxford
Domingo R (2009) The crisis of international law. Vanderbilt J Transnatl Law 42:1543–1593
Dufresn R (2008) Reflections and extrapolation on the ICJ’s approach to illegal resource exploitation in the armed activities case. N Y Univ J Int Law Polit 40:171–217
Duruigbo E (2006) Permanent sovereignty and peoples’ ownership of natural resources in international law. George Wash Int Law Rev 38:33–100
Elder E (1997) The case against arbitral awards of specific performance in transnational commercial disputes. Arbitr Int 38:1–32
Fatouros A (1964) International law and the third world. Va Law Rev 50:783–823
Foster G (2011) Striking a balance between investor protections and national sovereignty: the relevance of local remedies in investment treaty arbitration. Columbia J Transnatl Law 50:201–267
Frankel J (2010) Comment on Helm. In Hogan and Sturzenegger (2010)
Gardner R (1974) The hard road to world order. Foreign Aff 52:556–576
GATT Secretariat (1995) Analytical index: guide to GATT law and practice. Geneva
Greenwood C (1982) State contracts in international law – the Libyan oil arbitrations. Br Yearb Int Law 53:27–81
Haass R (2003) Sovereignty: existing rights, evolving responsibilities: remarks to the School of Foreign Service and the Mortara Center for International Studies, Georgetown University (Washington, DC). http://2001-2009.state.gov/s/p/rem/2003/16648.htm. Accessed 03 Dec 2016
Helm D (2010) Credibility, commitment, and regulation: ex ante price caps and ex post intervention. In Hogan and Sturzenegger (2010)
Henkin L (1995) International law: politics and values. Kluwer
Henkin L (1999) Lecture: that ‘S’ word: sovereignty, and globalization, and human rights, et cetera. Fordham Law Rev 68:1–14
Higgins R (1994) Problems and process: international law and how we use it. Oxford University Press, Oxford
Hogan W, Sturzenegger F (eds) (2010) The natural resources trap – private investment without public commitment. The MIT Press, Cambridge
ICJ, Barcelona Traction (Belgium v. Spain) Judgment of 5 February 1970, ICJ Rep 3
ICJ, Armed Activities on the Territory of the Congo (Dem. Rep. Congo v Uganda) Judgment 19 December 2005
ICSID, Aguaytia Energy, LLC v Republic of Peru (ICSID Case No ARB/06/13) award 11 December 2008a
ICSID, Duke Energy v. Peru, Award on the Merits (ICSID Case No. ARB/03/28) award 18 August 2008b
ICSID, Total v Argentina (ICSID Case No. ARB/04/1) Decision on Liability, 27 December 2010
ICSID, Mobil v Canada (ICSID Case No. ARB(AF)/07/4) Award, 22 May 2012
Igbokwe V (1997) Developing countries and the law applicable to international arbitration of oil investment disputes - has the last word been said? J Int Arbitr 14:99–124
Irwin D, Mavroidis C, Sykes A (2008) The genesis of the GATT. Cambridge University Press
Jackson J (2006) Sovereignty, the WTO, and changing fundamentals of international law. Cambridge University Press
Lalive J (1964) Contracts between a state or a state agency and a foreign company: theory and practice: choice of law in a new arbitration case. Int Comp Law Q 13:987–1021
Lehavi A, Licht A (2011) BITs and pieces of property. Yale J Int Law 36:115–166
Lowe V (2007) International law. Oxford University Press, Oxford
Lowenfeld A (2009) The ICSID convention: origins and transformation. Ga J Int Comp Law 38:47–61
Maniruzzaman M (2001) State contracts in contemporary international law: Monist versus Dualist controversies. Eur J Int Law 12:309–328
Mann FA (1960) State contracts and state responsibility. AJIL 54:572–591
Mbengue M (2016) The quest for a Pan-African Investment Code to promote sustainable development. http://www.ictsd.org/bridges-news/bridges-africa/news/the-quest-for-a-pan-african-investment-code-to-promote-sustainable. Accessed 03 Dec 2016
McNair A (1957a) The applicability of “General Principles of Law” to contracts between a state and a foreign national. American Bar Association: Section of Mineral & Natural Resources Law Proceedings 168–176
McNair A (1957b) The general principles of law recognized by civilized nations. Br Yearb Int Law 33:1–19
Melnitzer J (2016) Protectionism in reverse. Lexpert Magazine, 28 November 2016. http://www.lexpert.ca/article/protectionism-in-reverse/?p=&sitecode=lex. Accessed 14 May 2017
Nolan M (2016) Challenges to the credibility of the investor-state arbitration system. Am Univ Bus Law Rev 5:429–446
Norton P (1991) A law of the future or a law of the past? Modern tribunals and the international law of expropriation. Am J Int Law 85:474–505
Nussbaum A (1950) The arbitration between the Lena Goldfields, Ltd. and the Soviet government. Cornell Law Q 36:31–53
Pagden A (2006) The empire’s new clothes: from empire to federation, yesterday and today. Common Knowl 12:36–46
Pahuja S (2011) Decolonising international law: development, economic growth and the politics of universality. Cambridge University Press
Paulsson J (2010) The power of states to make meaningful promises to foreigners. J Int Dispute Settlement 1:341–352
Puig S (2013) Emergence & dynamism in international organizations: ICSID, investor-state arbitration & international investment law. Georgetown J Int Law 44:531–608
Reisman M (1987) The cult of custom in the late 20th century. Calif West Int Law J 17:133–145
Salacuse J (2010) The emerging global regime for investment. Harv Int Law J 51:427–473
Sauvant KP (ed) (2009) Yearbook on international investment law & policy 2008–2009. Oxford University Press, New York
Sauvant KP (ed) (2013) Yearbook on international investment law & policy 2011–2012. Oxford University Press, New York
Schill S et al (eds) (2015) International investment law and development bridging the gap. Edward Elgar
Schreuer C (2005) Calvo’s grandchildren: the return of local remedies in investment arbitration. Law Pract Int Courts Tribunals 4:1–17
Schrijver N (1997) Sovereignty over natural resources: balancing rights and duties. Cambridge University Press
Schwebel S (1963) The story of the U.N.’s declaration on permanent sovereignty over natural resources. Am Bar Assoc J 49:463–469
Schwebel S (2004) Investor-state disputes and the development of international law: the influence of bilateral investment treaties on customary international law. AJIL 98:27–30
Shemberg A (2009) Stabilization clauses and human rights. http://www.ifc.org/wps/wcm/connect/9feb5b00488555eab8c4fa6a6515bb18/Stabilization%2BPaper.pdf?MOD=AJPERES. Accessed 03 Dec 2016
Singh K, Ilge B (2016) Remodeling India’s Investment Treaty Regime. The Wire, 16 July 2016. http://thewire.in/52022/remodeling-indias-investment-treaty-regime/. Accessed 03 Dec 2016
Sornarajah M (2004) The international law on foreign investment. Cambridge University Press
Steil B (2013) The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the making of a new world order. Princeton University Press
Stevens P et al (2013) Conflict and coexistence in the extractive industries: a Chatham House report. https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Energy,%20Environment%20and%20Development/chr_coc1113.pdf. Accessed 03 Dec 2016
Strange S (1996) The retreat of the state: the diffusion of power in the world economy. Cambridge University Press
Supreme Court of Israel, High Court of Justice 4374/15, 7588/15, 8747/15, 262/16, The Movement for Quality Government v. The Prime Minister of Israel, Regarding the Gas Outline that was Prescribed in Government Decision 476 Summary of Judgment, dated 27 March 2016. http://elyon1.court.gov.il/files_eng/15/740/043/t63/15043740.t63.pdf. Accessed 03 Dec 2016
Texaco Overseas Petroleum Company v. The Government of the Libyan Arab Republic, award 19 January 1977. in ILM, 1978, at 1 et seq
The Economist, African economic growth: the twilight of the resource curse? (10 January 2015). http://www.economist.com/news/middle-east-and-africa/21638141-africas-growth-being-powered-things-other-commodities-twilight. Accessed 03 Dec 2016
UNCTAD (2000) Bilateral investment treaties 1959–1999
UNCTAD (2005) Economic development in Africa: rethinking the role of foreign direct investment. United Nations
UNCTAD (2008) World Investment Report 2007: transnational corporations, extractive industries and development
UNCTAD (2011) World Investment Report 2010: investing in a low-carbon economy. United Nations
UNCTAD (2016) World Investment Report 2015
UNECA (2016) Investment policies and bilateral investment treaties in Africa: implications for regional integration
UNGA Resolution 1803 (XVII) on the Permanent Sovereignty over Natural Resources, 14 December 1962
UNGA Resolution 3201 (S-VI), Declaration on the Establishment of a New International Economic Order (A/RES/S-6/3201, 1 May 1974)
UNGA Resolution 3281 (XXIX) on the Charter of Economic Rights and Duties of States (A/RES/29/3281, 12 December 1974
US Department of State (1941) The Atlantic Charter. http://avalon.law.yale.edu/wwii/atlantic.asp. Accessed 03 Dec 2016
Veeder V (1998) The Lena Goldfields arbitration: the historical roots of three ideas. Int Comp Law Q 47:747–792
Vernon R (1971) Sovereignty at bay: the multinational spread of US enterprises. Basic Books, New York
Wälde T (1983) Permanent sovereignty over natural resources: recent developments in the mineral sector. Nat Res Forum 7:239–251
Wälde T (2004) International standards in transnational investment & commercial disputes: the role of international standards, soft law, guidelines, voluntary and self-regulation in international arbitration, negotiation and other forms of dispute management: preliminary study, Transnational Dispute Management. https://www.transnational-dispute-management.com/article.asp?key=272. Accessed 03 Dec 2016
Wälde T, Ndi G (1996) Stabilizing international investment commitments: international law versus contract interpretation. Texas Int Law J 31:215–267
Weiler J (2015) European Hypocrisy: TTIP and ISDS, EJIL Talk (21 January 2015). http://www.ejiltalk.org/european-hypocrisy-ttip-and-isds/. Accessed 03 Dec 2016
Woolf L (2012) Empire and commerce in Africa: a study in economic imperialism. Forgotten Books, London
World Bank (1992) Strategy for African Mining (World Bank Technical Paper Number 181). http://documents.worldbank.org/curated/en/722101468204567891/Strategy-for-African-mining. Accessed 03 Dec 2016
World Bank (2009) The World Bank Group Program of Support for the Chad-Cameroon Petroleum Development and Pipeline Construction Program Performance Assessment Report (Report No 50315). http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2009/09/29/000333037_20090929000309/Rendered/PDF/503150PPAR0P05101Official0use0only1.pdf. Accessed 03 Dec 2016
Yager T et al (2012) The mineral industries of Africa: 2012 minerals yearbook. http://minerals.usgs.gov/minerals/pubs/country/2012/myb3-sum-2012-africa.pdf. Accessed 03 Dec 2016
Yergin D (1991) The prize: the epic quest for oil, money and power. Pocket Books
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Desta, M.G. (2017). Competition for Natural Resources and International Investment Law: Analysis from the Perspective of Africa. In: Yihdego, Z., Desta, M., Merso, F. (eds) Ethiopian Yearbook of International Law 2016. Ethiopian Yearbook of International Law, vol 2016. Springer, Cham. https://doi.org/10.1007/978-3-319-55898-1_6
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