The Agreement establishing the African Continental Free Trade Area: Will it spur foreign direct investment in Africa?

by | Mar 31, 2020 | ACTA, ACTA 2018

The Agreement establishing the African Continental Free Trade Area: Will it spur foreign direct investment in Africa?

Authors MA Forere

ISSN: 1996-2088
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: Acta Juridica, 2018, p. 43 – 74

Abstract

This essay analyses the potential impact of the AfCFTA and in particular the envisaged investment protocol to the African Continental Free Trade Agreement on investment flows. Since the investment protocol has not yet been drafted, the first task of the essay is to determine the potential standards of investment liberalisation and protection, using the regional economic communities (RECs) and the national laws of the two major economies in Africa – Nigeria and South Africa. This is because the investment protocol cannot fall too far away from the position that African countries have adopted in their respective RECs and the national laws of the most influential countries in Africa. The essay finds that the investment protocol will not be anything other than the international standards, as modified to respond to challenges in international investment regulation. It is then argued that the investment protocol will nonetheless improve investment in Africa and South Africa by creating policy certainty and increasing the market size. However, the author cautions that greater benefits can be realised if African countries diversify their economies and participate significantly in global value chains.

Foreign direct investment and the rule of law in Africa in the context of legal integration

by | Mar 31, 2020 | ACTA, ACTA 2018

Foreign direct investment and the rule of law in Africa in the context of legal integration

Authors S Mancuso and S Rigazio

ISSN: 1996-2088
Affiliations: Professor of Comparative Law and African Law, University of Palermo; Adjunct Professor of Conflict of Laws, University of Palermo
Source: Acta Juridica, 2018, p. 75 – 112

Abstract

This essay focuses on the relationship between foreign direct investment (FDI) and the rule of law in the context of legal integration in Africa, outside of the AfCFTA agreement. Specifically, the essay investigates the concept of the rule of law, taking into account its ‘dynamic’ side, that is the power to shape and model the structure of a state using the example of OHADA. The OHADA framework shows that the relationship between foreign direct investment (FDI) and the rule of law is not unilateral but a ‘two-way mutual’ relationship where both actors contribute to the success of the system, adapting to each other in order to achieve their respective goals.

Is there a positive relationship between investment policies and inward foreign direct investment flows? A study of Nigeria and Guinea-Bissau

by | Mar 31, 2020 | ACTA, ACTA 2018

Is there a positive relationship between investment policies and inward foreign direct investment flows? A study of Nigeria and Guinea-Bissau

Authors S Mzezewa and L Mavhuru

ISSN: 1996-2088
Affiliations: PhD candidate UCT; PhD candidate UCT
Source: Acta Juridica, 2018, p. 97 – 112

Abstract

In recent years foreign direct investment (FDI) has been identified as an important tool for economic development in Africa. Most countries on the continent have put various measures in place, including legislation, to ensure that they attract FDI. Given the role that FDI plays in development, it is important to understand why some countries attract more FDI than others. While there are several factors that explain this disparity, this essay examines the role played by a country’s investment policies and regulatory environment in attracting FDI, paying particular attention to Nigeria and Guinea-Bissau.

Approaches to investor state dispute resolution in Eastern Africa: Rwanda, Kenya and Mauritius

by | Mar 31, 2020 | ACTA, ACTA 2018

Approaches to investor state dispute resolution in Eastern Africa: Rwanda, Kenya and Mauritius

Authors L Bosman and S Kimani

ISSN: 1996-2088
Affiliations: Adjunct Professor at the University of Cape Town, Senior Legal Counsel at the Permanent Court of Arbitration, Executive Director of the International Council for Commercial Arbitration; Legal Counsel at the Permanent Court of Arbitration, Co-Registrar at the Mauritius International Arbitration Centre
Source: Acta Juridica, 2018, p. 113 – 148

Abstract

The current system of investor state dispute settlement (ISDS) derives largely from bilateral investment treaties (BITs), which many African states have signed as part of a strategy to attract foreign direct investment. Against the backdrop of current criticisms facing the ISDS system and reform proposals under discussion, including the creation of a permanent multilateral investment court or appeal mechanism, we examine approaches to ISDS by three Eastern African states – Rwanda, Kenya and Mauritius. Each of these three countries has adopted investment laws and entered into BITs including ISDS, and has faced investment arbitration proceedings at least twice. However, unlike two other African countries highlighted – Egypt and South Africa – they have neither engaged critically with the ISDS system, nor shown signs of adapting their ISDS policies. This essay suggests that while this approach to ISDS may be effective in the short term, the current evolution of the global system invites deeper engagement. The paper concludes with a call to governments and specialists in these countries to participate in current ISDS reform debates and contribute to shaping the future evolution of the system.

The relationship between tax incentives and human rights obligations in the drive to attract foreign direct investment: Are developing countries in Africa getting it right?

by | Mar 31, 2020 | ACTA, ACTA 2018

The relationship between tax incentives and human rights obligations in the drive to attract foreign direct investment: Are developing countries in Africa getting it right?

Authors A Titus and T Gutuza

ISSN: 1996-2088
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town; Associate Professor in Commercial Law, University of Cape Town
Source: Acta Juridica, 2018, p. 149 – 182

Abstract

Tax incentives are a key feature of the tax policy decisions made in developing countries, notwithstanding the literature expressing doubt as to whether tax incentives are effective in fulfilling their purpose of attracting foreign direct investment (FDI). A concern often raised is that the cost to developing countries of offering tax incentives may be more than the benefits that such tax incentives provide. This essay contributes to this literature by questioning whether developing countries factor in their obligations under the international agreements they have signed when introducing tax incentives. This essay considers several African countries that have signed human rights instruments – such as the International Covenant on Economic, Social and Cultural Rights – and whether the design of the tax incentives these countries offer shows evidence of an awareness of the obligations undertaken under the identified instruments.

Labour standards and foreign direct investment: A perspective on the export oriented garment sectors in selected sub- Saharan African countries

by | Mar 31, 2020 | ACTA, ACTA 2018

Labour standards and foreign direct investment: A perspective on the exportoriented garment sectors in selected sub-Saharan African countries

Authors D Collier and S Godfrey

ISSN: 1996-2088
Affiliations: Attorney of the High Court, Associate of the Institute of Development and Labour Law, Head of the Department of Commercial Law, University of Cape Town; Co-ordinator of the Labour and Enterprise Policy Research Group, Department of Commercial Law, University of Cape Town
Source: Acta Juridica, 2018, p. 183 – 209

Abstract

This essay considers the relationship between foreign direct investment (FDI), labour markets and labour regulation. The essay discusses the difference between vertical (efficiency-seeking) FDI and horizontal (market-seeking) FDI, and the likely dynamics between these different types of FDI and labour markets and labour relations. Lesotho and Ethiopia are discussed as examples of how FDI interacts with labour standards and labour market regulation in the context of sub-Saharan Africa. The essay argues for policy orientation in developing countries in Africa to attract a more beneficial type of investment that balances the interests of investors with those of the host country and its workforce. The essay concludes with the observation that the development of regional value chains in the context of the AfCTA should be pursued.