22 Jun 2011
Regional economic integration agreements and investor protection in Africa – the case of SADC
NCCR Trade Working Paper No 2011/59 by Andreas R. Ziegler
This paper examines the role of human rights instruments and regional integration instruments as well as their potential for overlap when it comes to the protection of foreign investors. As an example it analyses the Southern African Development Community (SADC) as well as the use of its Tribunal by private parties. As a case study it focuses on the decision by the SADC Tribunal of 28 November 2008 in the Case Mike Campbell [PVT] Limited and others. v. Zimbabwe.
This paper analyses first the results in this case and the action taken by the SADC Member States with regard to the potential overlap of legal regimes - in particular the protection of property and (foreign) investors in the region through human rights instruments and BITs. It compares the role of the SADC tribunal in this particular situation to the one of investor-state arbitration by comparing the SADC Tribunal decision to the the parallel case of Bernardus Henricus Funnekotter and Others v. Republic of Zimbabwe, (ICSID Case No. ARB/05/6) of 22 April 2009 – a traditional investor-State arbitral award and the attempts by several foreign investors to obtain diplomatic protection from their home States.
The paper concludes that the SADC tribunal has the potential to strengthen the rule of law and and the protection of property rights in the region. It thereby could contribute to an improvement of the legal environment. The paper concludes that the parallel availability of human rights mechanisms and BITs in this context would be comparable to the situation currently found in Europe with regard to the ECHR and BITs. The intention of the analysis provided for in paper is to be not only useful for the SADC framework, but also for problems of overlap and legal shortcomings in other regional fora, be it NAFTA, the EU, MERCOSUR, ASEAN or the ANDEAN Community and in the increasing number of bilateral free trade (and investment) agreements currently under negotiation.