scholarly journals Travelling the National Route: South Africa's Protection of Investment Act 2015

2018 ◽  
Vol 26 (2) ◽  
pp. 242-263
Author(s):  
Tarcisio Gazzini
Keyword(s):  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
Strong Response ◽  
Foreign Investors ◽  
Public Rights ◽  
Private And Public ◽  
Investment Treaties ◽  
Settlement Of Disputes

The South African Protection of Investment Act 2015 is a strong response to the perceived inadequacy of investment treaties, which are facing growing criticism for their unbalanced character, the undue restrictions on policy space and the shortcomings of the mechanism for the settlement of disputes. While other states have opted for a revision of their treaty models (i.e. India), concluded innovative BITs (i.e. the BIT between Morocco and Nigeria, not yet in force) or preferred facilitation agreements (i.e. Brazil), South Africa has taken a different route based on the assumption that domestic legislation is more appropriate than international legal instruments to regulate foreign investment. The Act is firmly anchored to the Constitution and provides a level of substantive and procedural protection that efficiently preserves South African sovereign prerogatives, but definitely falls short of that commonly ensured under international investment treaties. While states obviously need to balance the private and public rights and obligations at stake with a view to pursuing their economic and social development policies, it remains to be seen whether the drastic reduction in the protection of foreign investors operated by the Act was unavoidable and what impact it may have on the flow of foreign investment to South Africa. The article ultimately reflects on the implications of the Act from the standpoint of the protection enjoyed by foreign investors under both customary international law and investment treaties currently binding South Africa.

scholarly journals The Unworkability of “Balanced Treaties” and the Importance of Diversity of Approach Among the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 223-227 ◽  
Author(s):  
M. Sornarajah
Keyword(s):  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
Recent Attempt ◽  
Traditional Role ◽  
Newly Industrializing Countries ◽  
Global North ◽  
Investment Treaties ◽  
The Third World

There is much rethinking being done about investment treaties. While some level of uniformity existed when there was institutional direction by the World Bank and hegemonic pressure exerted by states in the Global North, geopolitical power is now shifting in ways that are producing greater diversity in approaches to the field. The evidence seems to indicate that each state that is of sufficient size or power will seek to fashion its foreign investment policy in the context of its own circumstances. This is certainly true for Brazil, Russia, India, China, and South Africa (the BRICS). Within this group of newly industrializing countries, it is clear that a uniform approach to investment treaties will not emerge, despite avowals to the contrary. In this essay, I offer an assessment of the divergent paths some of these states have taken. I contend that China has emerged as a newly hegemonic actor in international investment in a way that undermines its traditional role as champion for the Third World, and that India's recent attempt to develop a “balanced approach” to investment treaties is unworkable. Only South Africa has developed an approach that seeks to protect its government's ability to serve the goals of its people by subjecting foreign investment disputes to South African law and courts.

scholarly journals Measuring the inward FDI potential of South African regions

2008 ◽  
Vol 8 (1) ◽  
Author(s):  
W. Krugell ◽  
M. Matthee
Keyword(s):  
South Africa ◽  
Foreign Direct Investment ◽  
South African ◽  
Foreign Investment ◽  
Local Governments ◽  
Direct Investment ◽  
Potential Contribution ◽  
Skills Transfer ◽  
Foreign Investors ◽  
Investment Promotion

Purpose: The purpose of this paper is to construct an index that captures the factors expected to affect a local economy's attractiveness to foreign investors. Problem statement: Following South Africa's reintegration into the world economy in 1994, foreign direct investment has been seen as a potential driver of growth and development. Concerns about the low investment rate in South Africa raise the possibility of augmenting domestic with foreign investment expenditure. The potential of technology spillovers and skills transfer from foreign direct investment have also been emphasised. As a result, Trade and Investment South Africa is involved in identifying, packaging and promoting investment opportunities. However, investments tend to be place-specific and this has lead to the decentralisation of foreign direct investment promotion. Currently the nine provincial development agencies are competing to attract investors and the larger local governments are also getting involved in the fray. This paper argues that some places have better potential to attract foreign investment than others. A first step to use scarce investment promotion resources more efficiently would be to measure the inward FDI potential of South African regions. Approach: This paper uses principal components analysis to construct an index that captures the factors expected to affect a local economy's attractiveness to foreign investors. This approach draws on UNCTAD's Inward FDI Potential Index and applies it to 354 magisterial districts in South Africa for the periods 1996, 2001 and 2006. The index creates a summary measure of FDI potential.Findings: The results show that different places present differential potential in urbanization and localization economies and market size. The high-potential locations are typically found in or around the major agglomerations, but there are a few smaller places on the periphery that offer FDI potential. Contribution: The index should aid the location decisions of prospective investors as well as local policymakers in their efforts to promote FDI-led economic development. Conclusion: The places with high FDI potential are not randomly scattered across South Africa, but tend to cluster together. Cities and towns can improve their attractiveness to foreign investors through the exploitation of natural resources, population growth, economic growth and strengthening links to metropolitan areas.

A Critical Analysis of the Protection of Investment Act 22 Of 2015

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Lindelwa Beaulender Mhlongo
Keyword(s):  
South Africa ◽  
Foreign Investment ◽  
Critical Analysis ◽  
Legal Framework ◽  
Bilateral Investment Treaties ◽  
Current Form ◽  
Foreign Investors ◽  
Investment Protection ◽  
Investment Treaties

In 2010, South Africa reviewed its foreign investment legal framework and during this process, it terminated most of its bilateral investment treaties. For a period, there was no piece of legislation that dealt with the regulation of investment in South Africa and investors had to comply with commercial laws. To solve this problem, South Africa introduced the Investment Act in 2015 aimed at regulating both domestic and foreign investment within its territory. In light of the above, the questions central to the article are whether the Investment Act in its current form balances the rights and obligations of foreign investors and that of host states. If not, what can be added or deleted from the Investment Act in order to balance these two competing rights? The article first looks at why South Africa terminated the bilateral investment treaties. It then compares the Investment Act with the SADC FIP to ascertain if the Investment Act is aligned with the sub-regional standard of foreign investment protection. Finally, recommendations are made which include suggested amendments to improve the Investment Act.

scholarly journals Dispute Settlement in Investment-Related Matters: South Africa and the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 212-216
Author(s):  
Engela C. Schlemmer
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Dispute Settlement ◽  
Foreign Investors ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Investment Treaties ◽  
South African Constitution ◽  
Domestic Law

Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?

Conclusion

2021 ◽  
pp. 199-206
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Global Economy ◽  
International Investment ◽  
Local Communities ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
The 1950S

The final chapter summarizes how investment treaties and ISDS increase the calculability of foreign investors to the detriment of states and local communities, shaping foreign investment relations more generally. This outcome is the result of the standards included in investment treaties, as interpreted by ISDS tribunals, as much as the silencing of specific issues and actors in these arbitrations. For the legal imagination that dominates international investment law, the chapter shows, what is excluded is as important as what is protected. The book concludes by highlighting how current discussions about reforming investment treaties and ISDS are also embedded in this dominant imaginary. The lesson to be learned from the norm entrepreneurs of the 1950s and 1960s is that ideas alone are not enough to transform the rules governing the global economy.

China's International Investment Strategy

2019 ◽  
Keyword(s):  
Development Strategy ◽  
Foreign Investment ◽  
Developed Countries ◽  
Investment Strategy ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Open Door Policy ◽  
Outward Fdi ◽  
Investment Law ◽  
Investment Treaties

The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.

Bilateral Investment Treaties and the Increase in Egyptian Appearances before International Arbitration Tribunals

2021 ◽  
Vol 29 (1) ◽  
pp. 40-61
Author(s):  
Ashraf M. A. Elfakharani ◽  
Rohana Abdul Rahman ◽  
Hamza E. Albaheth ◽  
Nor Anita Abdullah
Keyword(s):  
International Investment ◽  
Vital Role ◽  
Legal Issues ◽  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Foreign Investors ◽  
Investment Treaties ◽  
Very High

Bilateral investment treaties (BITs), as the name indicates, are meant to govern investment relations between two signatory states. In this context, Egypt holds a significant place among all respondent states, having to face a very high number of legal issues from foreign investors. These cases are pending before several international investment tribunals and Egypt is facing claims of over USD 20 billion annually from its foreign investors. In spite of such a grim situation, there are legal arbitrations that have increased the appearance of Egypt in international arbitration forums. There are several reasons for such a situation to arise, mainly because of the governmental measures towards foreign investors and interests. This article argues that in spite of the unspecified criteria shown towards foreign investors, the Bilateral Investment Treaty's items have played a vital role in increasing Egyptian appearances.

scholarly journals Competitive intelligence: An instrument to enhance South Africa’s competitiveness

2014 ◽  
Vol 8 (2) ◽  
pp. 246-254 ◽  
Author(s):  
Wilma Viviers ◽  
M Muller ◽  
A Du Toit
Keyword(s):  
South Africa ◽  
South African ◽  
Business Environment ◽  
Competitive Intelligence ◽  
Business Sector ◽  
Academic Field ◽  
Global Competitiveness ◽  
The World ◽  
Private And Public

The case for Competitive Intelligence (CI) as an instrument that can enhance the competitiveness of South African companies and South Africa as a country is strong. Various global competitive rankings measurements have indicated over a number of years the areas in which competitiveness is lacking. Moreover, these rankings have indicated that South Africa has failed to improve its position year on year. The fact that the world is becoming increasingly competitive for South African entities is undisputed. Coupled with a fluctuating exchange rate and the country’s geographical proximity, this poses unique challenges facing South African managers who have to deal with various regulations and legislative matters. In order to create and sustain an effective knowledge economy and to enhance global competitiveness, South Africa however has to put appropriate strategies/measures in place to stimulate, encourage and grow knowledge practices. Competitive Intelligence (CI) as a means of making more sense of the competitive business environment and to identify opportunities and risks in time to act upon can be effectively used as a means to enhance competitiveness. Valuable lessons from successful CI practices in the business sector and government can be learnt from elsewhere in the world. CI should be investigated and adapted for South Africa’s business environment. It is therefore the aim of this article to first attempt to describe the role of CI in enhancing competitiveness, specifically in South Africa and secondly, to stimulate thought on how to secure momentum in enhancing CI as an academic field by developing relevant CI courses as well as demonstrating the value of CI to companies in South Africa through research and collaboration between academics and the private and public sectors. 

scholarly journals Protection of Foreign Investment in Central Asia

2019 ◽  
Vol 7 (4) ◽  
pp. 125-150
Author(s):  
Farruhbek Muminov
Keyword(s):  
Foreign Direct Investment ◽  
Central Asia ◽  
International Organizations ◽  
Foreign Investment ◽  
Direct Investment ◽  
International Investment ◽  
Labor Costs ◽  
Foreign Investors ◽  
Investment Policies ◽  
National Economies

Central Asia, with its abundance of natural resources and low labor costs, is often seen as an attractive destination for foreign investment. The inflow of foreign investment into Central Asia has significantly increased in recent decades, and this phenomenon supports the improvement of both national economies and the welfare of the region. Still, Central Asia is not classified as a low-risk destination for foreign investment because of inadequate protection of foreign investment – particularly a lack of transparency and predictability in Central Asia states’ FDI (Foreign Direct Investment) regimes. Furthermore, international organizations (such as the OECD) indicate that some countries in Central Asia do not have clear investment policies. These points pose problems for foreign investors who desire to invest in the region. From this perspective, this article analyzes the consistency of the general principles of foreign investment in Central Asia with international investment standards.

scholarly journals Incentives for the manufacturing sector: what South Africa can learn from Malaysia and Singapore

2015 ◽  
Vol 8 (1) ◽  
pp. 105-124
Author(s):  
Lenatha Wentzel ◽  
Kerry De Hart
Keyword(s):  
Economic Growth ◽  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
Manufacturing Sector ◽  
South African Government ◽  
Manufacturing Companies ◽  
The South ◽  
African Government ◽  
Similarities And Differences

The expansion of the manufacturing sector is one of the South African government’s focus areas for economic growth and employment creation. The research on which this article is based identified additional incentives, applicable to the manufacturing sector, which the South African government could introduce to encourage investors to choose the South African manufacturing sector as a desired investment destination. The incentives provided to manufacturing companies by the governments of Malaysia and Singapore and those provided by the South African government are compared in order to examine the similarities and differences between these incentives. In the light of these findings, recommendations are made for additional incentives in South Africa to promote investment in South African manufacturing companies and reduce some of the barriers that prevent local and foreign investment in the country.

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