An interesting series of posts on Africa and investment norm setting in Kluwer Arbitration blog here and here. The normal churning that States are facing in terms of what should the scope of investment arbitration obligations be, what kind of protections to be included and what dispute settlement mechanism to be adopted face the negotiators of the Investment Protocol of the African Continental Free Trade Area.
Statistics of the skewed nature of arbitrator selection caught my eye:
The limited involvement of African arbitrators and African institutions in the ISDS ecosystem is a matter of great concern to many in Africa. According to The ICSID Caseload – Statistics (Issue 2019 – 2), although Sub-Saharan Africa contributes 15 percent of all ICSID cases by State Party involved, the region only accounts for 2 percent of arbitrators, conciliators and ad hoc Committee members appointed in ICSID cases. By contrast, Western Europe contributes 8 percent of all ICSID cases by State Party involved but account for a staggering 48 percent of arbitrators, conciliators and ad hoc committee members appointed in ICISID cases. North America (Canada, Mexico and U.S.) contributes 4 percent of all ICSID cases by State Party involved but account for 20 percent of arbitrators, conciliators and ad hoc committee members appointed in ICISID cases.
Will the negotiators reject ISDS altogether? Will State to State arbitration or the Brazilian model of co-operation and mediation hold sway? Or will the substantive obligations be more balanced with an ISDS mechanism?
Can Africa be the next place for investment norm setting standards for the world?
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