Making a case for the establishment of African investment court under the AfCFTA

Abstract

This contribution presents a proposal for the establishment of Permanent African Investment Court as a reformative alternative to the traditional Investor-State Dispute Settlement (ISDS) mechanism. The paper is motivated by the widely criticised ISDS mechanism from a broad spectrum of stakeholders and constituencies. It observes that African states have historically been disadvantaged within international investment arbitration landscape. The argument is then advanced that for the AfCFTA to succeed, it must be supported by a dispute settlement mechanism that provides for the adequate balance between investor and state interests. After exploring the current context for dispute settlement on the continent, this paper emphasises the importance of establishing a sound dispute settlement procedure on the continent and argues that a Permanent Investment Court that protects the ability of African nations to promote sustainable development, and public interests should be established under the AfCFTA’s Investment Protocol.