Rethinking the Dualism of Regionalism vs. Universalism in the Light of the Sub-Saharan Experience with the Regulation of Foreign Investment

Abstract

In Sub-Saharan African countries, inequalities and unbalanced distribution of land and natural resources are deeply rooted in the historical land conflicts and dispossessions in the region that have drastically altered the political and economic positions of major segments of Sub-Saharan African societies. This article attempts an answer to the question of whether a sub-regional investment agreement could help in addressing the problem of land-grabbing in Sub-Saharan Africa. The affirmative answer to this question is based on a discussion of the strengths and weaknesses of the three major approaches to the legal regulation of foreign direct investments (FDI) that have been utilized to date in Sub-Saharan Africa. The article provides a succinct historical survey that sheds light on the fact that both domestic regulations of foreign investments and Bilateral Investment Treaties (BITs) have almost exclusively dealt with the question of the promotion of FDI, and that a number of BITs in Sub-Saharan Africa tend to overemphasize the protection of foreign investors while doing very little to protect common concerns, i.e. values that do not coincide, or do not necessarily coincide, with the interests of the investor. The article then discusses the approach to the legal regulation of FDI through BITs as exemplified in the BITs concluded by the US with six sub-Saharan African partners, underscoring the unsuitability of such treaties to lay the foundations of an international investment regime more favourable to Sub-Saharan countries. Finally, the paper attempts to formulate a few recommendations to address the problem, suggesting a sub-regional investment agreement for Sub-Saharan Africa.