Online from: 2002
Subject Area: Business Ethics and Law
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|Title:||European/Southern African Development Community (SADC) states' bilateral investment agreements (BITs) for the promotion and protection of foreign investments vs post-apartheid SADC economic and social reconstruction policy|
|Author(s):||Ben Chigara, (Brunel Law School, Brunel University, London, UK)|
|Citation:||Ben Chigara, (2011) "European/Southern African Development Community (SADC) states' bilateral investment agreements (BITs) for the promotion and protection of foreign investments vs post-apartheid SADC economic and social reconstruction policy", Journal of International Trade Law and Policy, Vol. 10 Iss: 3, pp.213 - 242|
|Keywords:||Basic norm, Black economic empowerment, Customary international law-making, Europe, Foreign direct investment, International investments, International law, Settlement of investment disputes, Social and economic legacy of apartheid rule, South Africa|
|Article type:||Research paper|
|DOI:||10.1108/14770021111165508 (Permanent URL)|
|Publisher:||Emerald Group Publishing Limited|
|Acknowledgements:||The author is grateful to Dr Richard Frimpong Oppong for his comments on an earlier draft. The contents of the article are attributable to the writer alone.|
Purpose – This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of foreign investments in light of the latter's recent inauguration of Black Economic Empowerment (BEE) as a basic norm of regional customary international law and strategy for countering the social and economic legacy of apartheid rule on their territories for over half a century.
Design/methodology/approach – The approach taken is textual analysis and deconstruction of emergent SADC BEE legislation, substantive BIT legislation provisions, dispute settlement mechanisms and emergent jurisprudence on the tensions between BEE policy and BIT obligations.
Findings – The strong elements of exclusivity between European/SADC BIT dispute settlement mechanisms on the one hand, and the “ouster clauses” of SADC BEE legislation and regulations on the other, are mutually incompatible. This incompatibility threatens the sustainability of the EU/SADC states' BIT dynamic for the promotion and protection of foreign direct investments (FDIs).
Originality/value – Demonstration of BEE as SADC's emergent basic norm of social reconstruction for countering the social and economic legacy of apartheid rule in affected states and implications of that for EU/SADC policy on the promotion and protection of FDIs.
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