Please use this identifier to cite or link to this item: http://buratest.brunel.ac.uk/handle/2438/9066
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
Authors: Chigara, B
Keywords: Foreign direct investment;Basic norm;Black economic empowerment;Customary international law‐making;Settlement of investment disputes;Social and economic legacy of apartheid rule;International investments;International law;Europe;South Africa
Issue Date: 2011
Publisher: Emerald
Citation: Journal of International Trade Law and Policy, 10(3), 213 - 242, 2011
Abstract: 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.
Description: This is the author's accepted manuscript. The final published article is available from the link below. This article is (c) Emerald Group Publishing and permission has been granted for this version to appear here. Emerald does not grant permission for this article to be further copied/distributed or hosted elsewhere without the express permission from Emerald Group Publishing Limited.
URI: http://www.emeraldinsight.com/doi/abs/10.1108/14770021111165508
http://bura.brunel.ac.uk/handle/2438/9066
DOI: http://dx.doi.org/10.1108/14770021111165508
ISSN: 1477-0024
Appears in Collections:Law
Publications
Dept of Politics, History and Law Research Papers

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