Trends, Dynamics and Reform of International Investment Law in Africa: An Ecowas Case Study

In the last few decades, international investment law (IIL) has emerged as one of the most distinct legal frameworks for promoting and protecting foreign investment. However, evidence of linkages between foreign direct investment (FDI), economic growth and IIL in developing countries remains inconclusive. Related to this is a legitimacy crisis wherein the jurisprudential implications of international investment treaties and investment arbitration have come under scrutiny. In the midst of this crisis, there is evidence that African states encounter distinct challenges in foreign investment treaty and contractual negotiations. This is problematic, as there is evidence that the existing transnational regime could ultimately undermine public interests. Against this background and in the light of recent global reform efforts, this thesis reconsiders the trajectories of transnational foreign investment protection law in Africa. In Africa and other developing economies, despite aspirations for economic growth and development, the legitimacy of international investment law is a big concern. Commentators make reference to the historical foundations of bilateral investment treaties (BITs) as tools used by the global North to maintain their colonial economic interests. They also make reference to unequal bargaining powers in negotiating investment treaties. To understand the current regime, it is more important to undertake a fact-based journey into the not so distant past. Building on transnational law theory and third world approaches to international law, this dissertation focuses on alternatives for reform of investment law in Africa. This research will involve an empirical analysis of all publicly available international investment agreements signed by member states of the Economic Community of West African States (ECOWAS) and all publicly known investor-state disputes involving these states. This thesis shows that West Africa’s distinct historical, economic and legal trajectory has led to a contractualization of international investment law, in which the main sources of foreign investment promotion and protection are investor-state contracts.

The major objective of this research is to use ECOWAS as an archetype to provide a blueprint for African states for reform in a transnational investment law regime. This research aims to provide a more nuanced account of the dynamics of foreign investment protection law, analyse the risk of investment disputes and contribute to African scholarship on IIL. This thesis will show that current debates which focus exclusively on investment treaties cloud the distinct challenges of IIL in Africa. The purpose here is to underscore often ignored political and economic relationships which develop between and among states and the role legal institutions play in cementing these relations.