Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v. the Republic of Zimbabwe Ruling Imperils SADC Investment Law

Abstract

This article considers the celebrated case of Mike Campbell (Pvt) Ltd and 78 Others v. The Republic of Zimbabwe. It analyses the ruling’s implications to the Southern African Development Community’s (SADC) investment law. In its decision, the SADC Tribunal famously declared that the 79 applicants, among which were 28 private limited companies and their shareholders: (i) had been subjected to unlawful race discrimination; (ii) had been denied access to the courts of Zimbabwe; and (iii) were entitled to be paid “fair compensation” for farms expropriated by the respondent State. This article argues that the Campbell case was wrongly decided, and that contrary to the Tribunal’s decision - under international law: (a) a company - such as Mike Campbell (Pvt) Ltd - cannot assert a race discrimination claim; (b) a shareholder in a company - such as William Michael Campbell - does not have a cause of action or jus standi against a State in a claim seeking compensation for property expropriated from the company, save where the company has been wound up, the direct rights of the shareholder - qua shareholder - have been breached, or a specific and enabling investment treaty applies to the dispute; and (c) a State is not required to pay “fair compensation” or “prompt, adequate and effective compensation” to its national from whom it has expropriated property. This article argues that the Campbell case is an aberration and is nothing more than an unreasoned, unfounded and injudicious fiat. The decision has no basis in international law. Although decided using international human rights law principles, the Campbell ruling is relevant to, and will imperil, SADC investment law, if it is treated as persuasive authority.