Approaches to investor state dispute resolution in Eastern Africa: Rwanda, Kenya and Mauritius
Authors L Bosman and S Kimani
Affiliations: Adjunct Professor at the University of Cape Town, Senior Legal Counsel at the Permanent Court of Arbitration, Executive Director of the International Council for Commercial Arbitration; Legal Counsel at the Permanent Court of Arbitration, Co-Registrar at the Mauritius International Arbitration Centre
Source: Acta Juridica, 2018, p. 113 – 148
The current system of investor state dispute settlement (ISDS) derives largely from bilateral investment treaties (BITs), which many African states have signed as part of a strategy to attract foreign direct investment. Against the backdrop of current criticisms facing the ISDS system and reform proposals under discussion, including the creation of a permanent multilateral investment court or appeal mechanism, we examine approaches to ISDS by three Eastern African states – Rwanda, Kenya and Mauritius. Each of these three countries has adopted investment laws and entered into BITs including ISDS, and has faced investment arbitration proceedings at least twice. However, unlike two other African countries highlighted – Egypt and South Africa – they have neither engaged critically with the ISDS system, nor shown signs of adapting their ISDS policies. This essay suggests that while this approach to ISDS may be effective in the short term, the current evolution of the global system invites deeper engagement. The paper concludes with a call to governments and specialists in these countries to participate in current ISDS reform debates and contribute to shaping the future evolution of the system.