Assessing the policy shift of Bilateral Investment Treaties from traditional North-South to new models of South-South investment : implications for South Africa and the Global South

Abstract

Bilateral investment treaties (BITs) have existed since the 1950s and early 1960s. They have proliferated unprecedentedly as a global phenomenon, shaping trade and investment policies across the world. As their influence in emerging markets expanded, the Global North used BITs as both an instrument of economic diplomacy and an instrument of foreign policy while the Global South entered into BITs to attract foreign direct investment. However, BITs have often been criticised for unfavourable and imbalanced terms. They often lock developing economies into global multinational companies and their home countries in the Global North. This study provides a nuanced analysis of the patterns, trends and trajectories of investment treaty practices in the form of BITs and their impact on a host country’s ability to regulate investment policies in the public interest.

To conceptualise BITs and contextualise the policy shift from North–South to South–South investment cooperation, this research follows a multidisciplinary methodological approach and an eclectic mix of disruptive innovation and rational choice theoretical frameworks in order to enhance an understanding of treaty practices. The case study of South Africa is a compelling example of this global shift in investment treaty practices. In this context, the study finds that South Africa’s termination of BITs and the promulgation of the Protection of Investment Act 22 of 2015 are both disruptive and innovative. The study concludes that the future viability of BIT models, whether North–South or South–South, will continue to be contested unless they are designed to strike a balance between choice and necessity. This entails considering the interests of foreign investors while respecting the host state’s responsibility to regulate investment policies in the public interest. Keywords: Bilateral investment treaties, policy shift, asymmetric treaty networks, public interest, Global South, Global North, disruptive innovation