The Legal Efficacy of Investment Treaty Reforms in Africa

The assumption underlying ongoing reforms of international investment agreements (IIAs )is that the flexibilities and exceptions constituting the reforms offer effective protections to host states’ duty to regulate. This assumption has neither been tested ex-ante or ex post facto the making of new IIAs nor coherently explored in the literature. I explore the question whether the reforms of IIAs offer effective protections to the duty to regulate, using IIAs with African countries as a case study. Do IIA reforms in Africa guarantee that the objective of preserving the duty to regulate can be achieved in practice? Africa’s reforms of IIAs are comprehensive, encompassing features aimed at preserving the duty to regulate. I argue that many aspects of the reforms compromise their efficacy. The soft law and precatory nature of, and the provisos embedded in key regulatory safeguards constituting the reforms intended to secure states with regulatory autonomy place contentious limitations on how the new provisions may operate in practice.