Abstract

The past decade has seen a marked rise in unjust enrichment scepticism across the common-law world. Some argue that the ‘at the expense of ’ element in particular has been over-generalised and that the restitution of unjust enrichment should be principally confined to cases of deliberate conferral by the plaintiff. Others go further and argue that the law of unjust enrichment itself does not exist insofar as ‘unjust enrichment’ is neither a cause of action nor a consideration of justice capable of justifying restitution. This essay offers a tentative response to these arguments, defending a performance-based analysis of core Kelly v Solari-type cases but questioning whether the continued existence of the subject really depends on the tight normative unity that its critics demand. At the same time, the essay considers the ways in which legal history, comparative law and legal theory have acted as drivers of change in this context, examining the phenomenon of change and continuity in private law with reference to these developments.

Abstract

This essay gives an overview of the Scots law on rights of relief (contribution) of cautioners (sureties), co-debtors and indemnifiers (mainly insurers). The personal rights of relief of cautioners, co-debtors and double indemnifiers attract the civilian benefit of cession of actions (beneficium cedendarum actionum). By contrast, a paying insurer (or other indemnifier) is not an assignee of the insured but is subrogated to the insured’s rights against the person primarily liable for the loss, so he sues a subrogated action in the insured’s name. Subrogation is an eighteenth-century English doctrine transplanted later to Scots law, along with English insurance law. The law of relief (with cession of actions) and subrogation has the unique function, within the law of obligations, of ranking the liabilities of a plurality of debtors liable to the same creditor or insured in respect of the same debt or damage. Since it is a distinct source of obligation and a separate (albeit small) legal regime with rules of its own, it resembles negotiorum gestio rather than a branch of unjustified enrichment. Nevertheless, since the 1990s a handful of Scottish judicial opinions and decisions, reflecting a trend in English law, have sought to reconceptualise relief as a branch of the law of unjustified enrichment. The essay ventures to criticise this trend arguing, among other things, that it is based on a misreading of Scottish legal history and a failure to recognise the unique character of obligations of relief, and that it overlooks binding Court of Session Inner House authority that holds that in actions of relief the measure of recovery is the pursuer’s expenditure and not the defender’s enrichment.

Abstract

This essay explores the history of the South African government’s conclusion of a series of bilateral investment treaties (BITS) after 1994. It then examines the reasons why South Africa decided that BITS subverted a number of critical developmental goals, many of which were enshrined the Constitution. The legislation that followed revealed that the government was prepared to eschew certain forms of foreign investment pressure and to carve out an independent set of investment policies. This in turn raises the question explored in this paper about the scope of national sovereignty to trump global demands for a specified investment framework.

Abstract

Foreign direct investment (FDI) constitutes an important tool for generating capital inflow and economic growth and development, particularly in developing countries. The prevalent global mechanism for regulating and protecting is the bilateral investment treaty (BIT). After the apartheid era, and the associated economic isolation of South Africa, the country concluded numerous BITs, particularly with capital-exporting European countries. However, following an extensive review of its BITs in 2008, the South African government promulgated the Protection of Investment Act 22 of 2015 (PIA) in December 2015 to replace several of its BITs with national legislation.

This essay will show that the PIA constitutes a highly uncertain and vague legal framework for foreign investment, which is likely to decrease investor confidence. Particularly in regard to international law, the PIA provides a significantly narrower concept of expropriation and lacks sufficient provisions regarding the compulsory payment of compensation in the case of indirect expropriation. This essay concludes that the manner of practical implementation and application not only of the PIA but of all legislation related to foreign investment will be decisive in order to achieve a reasonable balance between the domestic public interest and policy space and foreign investors’ need for predictable and reliable investment protection. The government will have to show its dedication and commitment to the establishment of a balanced investment regime in order to maintain South Africa’s status as a foreign investment-friendly venue.

Abstract

This essay analyses the potential impact of the AfCFTA and in particular the envisaged investment protocol to the African Continental Free Trade Agreement on investment flows. Since the investment protocol has not yet been drafted, the first task of the essay is to determine the potential standards of investment liberalisation and protection, using the regional economic communities (RECs) and the national laws of the two major economies in Africa – Nigeria and South Africa. This is because the investment protocol cannot fall too far away from the position that African countries have adopted in their respective RECs and the national laws of the most influential countries in Africa. The essay finds that the investment protocol will not be anything other than the international standards, as modified to respond to challenges in international investment regulation. It is then argued that the investment protocol will nonetheless improve investment in Africa and South Africa by creating policy certainty and increasing the market size. However, the author cautions that greater benefits can be realised if African countries diversify their economies and participate significantly in global value chains.

Abstract

This essay focuses on the relationship between foreign direct investment (FDI) and the rule of law in the context of legal integration in Africa, outside of the AfCFTA agreement. Specifically, the essay investigates the concept of the rule of law, taking into account its ‘dynamic’ side, that is the power to shape and model the structure of a state using the example of OHADA. The OHADA framework shows that the relationship between foreign direct investment (FDI) and the rule of law is not unilateral but a ‘two-way mutual’ relationship where both actors contribute to the success of the system, adapting to each other in order to achieve their respective goals.

Abstract

In recent years foreign direct investment (FDI) has been identified as an important tool for economic development in Africa. Most countries on the continent have put various measures in place, including legislation, to ensure that they attract FDI. Given the role that FDI plays in development, it is important to understand why some countries attract more FDI than others. While there are several factors that explain this disparity, this essay examines the role played by a country’s investment policies and regulatory environment in attracting FDI, paying particular attention to Nigeria and Guinea-Bissau.

Abstract

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.

Abstract

Tax incentives are a key feature of the tax policy decisions made in developing countries, notwithstanding the literature expressing doubt as to whether tax incentives are effective in fulfilling their purpose of attracting foreign direct investment (FDI). A concern often raised is that the cost to developing countries of offering tax incentives may be more than the benefits that such tax incentives provide. This essay contributes to this literature by questioning whether developing countries factor in their obligations under the international agreements they have signed when introducing tax incentives. This essay considers several African countries that have signed human rights instruments – such as the International Covenant on Economic, Social and Cultural Rights – and whether the design of the tax incentives these countries offer shows evidence of an awareness of the obligations undertaken under the identified instruments.

Abstract

This essay considers the relationship between foreign direct investment (FDI), labour markets and labour regulation. The essay discusses the difference between vertical (efficiency-seeking) FDI and horizontal (market-seeking) FDI, and the likely dynamics between these different types of FDI and labour markets and labour relations. Lesotho and Ethiopia are discussed as examples of how FDI interacts with labour standards and labour market regulation in the context of sub-Saharan Africa. The essay argues for policy orientation in developing countries in Africa to attract a more beneficial type of investment that balances the interests of investors with those of the host country and its workforce. The essay concludes with the observation that the development of regional value chains in the context of the AfCTA should be pursued.