The Draft Pan-African Investment Code: Toward a New Legal Model for Investment and Development
Article By : Cheima Trabelsi
Abstract: The purpose of this article is to explore the draft Pan-African investment code as an innovative legal instrument that will serve African States in the negotiation and the development of a « new generation » of international investment agreements. The motivation for this research lies in the fact that elaborating a continental legal framework for investments has a profound impact on overcoming issues with the fragmentation of the investment regime in Africa. As such, after introducing the draft Pan-African investment code, we will examine some of its most innovative features, as well as its different frailties. Key words: Draft Pan-African Investment Code/ /Africanization/ international investment law/ sustainable development Introduction At the heart of the serious challenges faced by international investment law, different attempts at reform are taken to this branch of law in order to respond to a new international economic order. Among these attempts, we mark the creation of a continental approach to the investment regime in Africa, throughout various initiatives to « Africanize » international investment law aiming to increase foreign investment in Africa as a means of achieving sustainable development. In this sense, «Africanization of international investment law refers to the substantive and procedural actions by African states against the hegemony of an international investment regime that historically subjugated their economic development interests in favor of the investor». However, the concept of Africanization should not be equated to the regionalization of the regime. Rather, it situates the broader socioeconomic, political, cultural, and sustainable development aspirations of African states with the interests of investors who enrich themselves even at the expense of the host states and their peoples. In this context, the African Union has taken the initiative to elaborate the Draft Pan-African Investment Code. It’s a non-binding instrument innovated to serve as a guiding instrument for the member states of the African Union and investors in Africa and to represent « a modern and comprehensive system of standards and obligations that combine investment, development and corporate social responsibility». The development of the Code took place in several phases. Its first foundation stone has been laid during the third Conference of African Integration Ministers held at Abidjan, Ivory Coast from 22 to 23 Mai 2008, in which the African Union commission was tasked with elaborating a global investment code for Africa in order to « develop a comprehensive investment code for Africa with a view to promoting private sector participation ». At the same year, this decision was approved by the Heads of State and Government of the Union during Sharm El-Sheikh Summit. Also, a continental working group owning advanced expertise was set up to boost the development of the project. Then, a series of meetings were arranged by the African Union Commission gathering independent experts, officials from the Member States and regional economic communities to elaborate the first draft that was finally released in 2015. In October 2017, the Specialized Technical Committee on Finance, Monetary Affairs, Economic Planning and Integration adopted the Draft Pan-African Investment Code as a guiding instrument. The code was developed in line with various sub-regional attempts undertaken to produce new generation of investment instruments such as the the Common Market for Eastern and Southern Africa (COMESA) Common Investment Area (CCIA), the Economic Community of West African States (ECOWAS), Community Rules on Investment (ECI), the Southern African Development Community (SADC) Model Bilateral Investment Treaty, as well as the initiative of many African countries to reform their current international investment agreements and developing new ones or reviewing their national investment law. The interest of conducting research on this new instrument is therefore to highlight the challenge launched by the African Union of conceiving a continental approach in order to regulate international investment law in Africa and to take the first step towards producing an integrated African community policy of investment. As such, the code constitutes a response to the need to handle the fragmentation of investment law in Africa through bilateral investment treaties and the regional investment agreements developed by regional economic communities. In this respect, the creation of PAIC is considered as an African attempt to the harmonization of international investments in order to specify, in the end, the archetype of African legalization with regards to investments. In other terms, the PAIC has endowed African countries with a genuine participation in the international debate on the future of the international investment regime. This will lead us to submit thefollowing fundamental question: To what extent can the Pan-African Investment Code project contribute to the construction of a comprehensive legal order for investment in Africa? As the draft PAIC is an expression of a new approach to regulate the promotion and the protection of investments in Africa, it incorporates genuinely some innovative aspects which make it a unique legal instrument (Part 1). However, we cannot deny that some frailties can be detected both in terms of its substance and, above all, in terms of its form (Part 2)
