Race & International Investment Law: On the Possibility of Reform and Non-Retrenchment

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The two books1 under review offer a range of thought-provoking approaches for analyzing the past, present, and future of investment law. This Review Essay categorizes these books into two modes of critical scholarship on international investment law: moderate and radical.2 In Part II, I flesh out the conceptual categories of moderate and radical critique. In Part III, I analyze the books under review through the lens of these two conceptual frameworks. In Part IV, I turn to the question of race and investment law. This Review Essay suggests that race should not be neglected in our analysis of the past, present, and, most importantly, the future of investment law—a core theme that both books under review does not engage with. Part V briefly concludes

Revisiting the Economic Community of West African States: A Socio-Legal Analysis

Recent years have seen a growing scholarly interest in the conditions of emergence of regional trade agreements in Africa. These analyses have advanced our knowledge on a range of technical issues, from specific institutional transformation of regional economic communities such as the Economic Community of West African States (ECOWAS) to broad legal issues relating to the provisions of the regional trade agreements. Most literature on ECOWAS is, however, informed by legal formalism that interprets the text of the treaties strictly and without context, leading to a dominant interpretation of failure.By contrast, this thesis adopts a socio-legal approach and argues that the dominant narrative’s conceptualization of ECOWAS is narrow and under-representative of the broader contexts of the social relations in which ECOWAS Treaties and their implementation are embedded. The failure narratives do not adequately account for the complex social, historical, and political factors that shape the implementation of the ECOWAS Treaties.By combining socio-legal approach with insights from International Relations on new regionalism, the thesis reconceptualizes regionalism in ECOWAS as a social phenomenon. It approaches the ECOWAS Treaties as embedded in the socio-political relations, power struggles, and social structures of the Community. To differentiate the thesis from existing research on ECOWAS, it incorporates national, regional, and international factors in illuminating the complex and multifaceted confluence of circumstances that shape the implementation of the ECOWAS Treaties. Simultaneously, the thesis enriches our understanding of the theories of new regionalism by deepening the analysis in relation to ECOWAS. Seen from this perspective, the thesis concludes that ECOWAS cannot be regarded as a straightforward failure and that its achievements are not to be found primarily in economic integration but in other socio-political factors that it enabled. Finally, the analysis opens new opportunities for future normative analyses that interrogate the effectiveness of ECOWAS by taking into account the socio-political contexts in which it is embedded

Reflections on the Value of Socio-Legal Approaches to International Economic Law in Africa

In their introductory essay to the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.” This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of informal cross-border trade phenomenon. It argues that, by conceptualizing IEL in Africa as a social phenomenon, socio-legal approaches open IEL in Africa to the application of other social science methods, which enable us to understand the context in which African regional trade agreements are implemented and their contribution to the scholarly field of IEL

Symposium on Sustainable Development Goals, Trade, Investment, and Inequality

This Symposium, co-hosted by Afronomicslaw and the Dalhousie Law Journal Blog is an outcome of one of the streams at the 2019 Annual Purdy Crawford Workshop at the Schulich School of Law. The theme of the Workshop which took place from Sept. 26–28 was “The Role of Business Regulation in Advancing the Sustainable Development Goals.” Co-organized by three Schulich School of Law Professors, the Workshop featured three inter-disciplinary and simultaneous streams as well as cross-over plenaries that focused on: “SDGs and Revenue Mobilization” – convened by Kim Brooks, the Purdy Crawford Chair in Business Law; “SDGs, Trade, Investment, and Inequality” convened by Olabisi D. Akinkugbe; and “Business Responsibilities for Human Rights and Environmental/Climate Justice – convened by Sara Seck.” The contributions to this symposium were initially presented as part of “SDGs, Trade, Investment, and Inequality” stream

Theorizing Developmental Regionalism in Narratives of African Regional Trade Agreement

There is a gap in the legal scholarship on African regional trade agreements (RTAs) that links law and development to narratives of developmental regionalism. This article undertakes a critical analysis of the ‘developmental regionalism’ paradigm as they have been applied in the study of African RTAs. The article identifies three areas of critical intervention to address the incoherence of developmental regionalism in Africa: limitation in theory; narrow conceptualization; and an insufficient attention to the role of law. First, to address the gap in theorizing the ‘development’ in developmental regionalism, this article makes the case for an explicit linking of Law and Development scholarship and Developmental Regionalism in African regional trade agreements. In so doing, while the article acknowledges the shortcomings of mainstream Law and Development Scholarship, it contends that these critiques do not foreclose the cross-pollination of the fields to offer a theoretical basis for a more rigorous understanding of developmental regionalism in African RTAs. Second, to address the narrow understandings of developmental regionalism, the emphasizes the importance of a robust definition of the concept. It makes the case for rethinking developmental regionalism as an analytical tool that responds to and accommodates the multidimensional character of African RTAs. In turn, the article argues that rethinking developmental regionalism as an analytical tool avoids the need for prescriptive and limiting definitions of the scope of the concept. Thirdly, the article argues for a more rigorous engagement with the role of law in African RTAs. Since these agreements are not strict rules-based regimes; the article pushes back against the failure narratives that are produced by dominant theoretical frameworks that privilege globalized legal thoughts embedded in trade agreements. In conclusion, the article argues that our understanding of African RTAs as ‘flexible legal regimes’ or in anti-formalist terms is deepened by an explicit linkage of the fluid concept of development to the selective implementation of the RTAs based on their priorities

Theorizing Developmental Regionalism in Narratives of African Regional Trade Agreement

There is a gap in the legal scholarship on African regional trade agreements (RTAs) that links law and development to narratives of developmental regionalism. This article undertakes a critical analysis of the ‘developmental regionalism’ paradigm as they have been applied in the study of African RTAs. The article identifies three areas of critical intervention to address the incoherence of developmental regionalism in Africa: limitation in theory; narrow conceptualization; and an insufficient attention to the role of law. First, to address the gap in theorizing the ‘development’ in developmental regionalism, this article makes the case for an explicit linking of Law and Development scholarship and Developmental Regionalism in African regional trade agreements. In so doing, while the article acknowledges the shortcomings of mainstream Law and Development Scholarship, it contends that these critiques do not foreclose the cross-pollination of the fields to offer a theoretical basis for a more rigorous understanding of developmental regionalism in African RTAs. Second, to address the narrow understandings of developmental regionalism, the emphasizes the importance of a robust definition of the concept. It makes the case for rethinking developmental regionalism as an analytical tool that responds to and accommodates the multidimensional character of African RTAs. In turn, the article argues that rethinking developmental regionalism as an analytical tool avoids the need for prescriptive and limiting definitions of the scope of the concept. Thirdly, the article argues for a more rigorous engagement with the role of law in African RTAs. Since these agreements are not strict rules-based regimes; the article pushes back against the failure narratives that are produced by dominant theoretical frameworks that privilege globalized legal thoughts embedded in trade agreements. In conclusion, the article argues that our understanding of African RTAs as ‘flexible legal regimes’ or in anti-formalist terms is deepened by an explicit linkage of the fluid concept of development to the selective implementation of the RTAs based on their priorities

In EU-Africa Trade Relations: Africa is not Europe’s “Twin Continent”

There is a new struggle for Africa’s market. The contestants include the European Union (EU), United States (US), Russia, India and China. In this blog, I reflect on the new European Union -Africa Comprehensive Strategy proposals. The blog pushes against the Strategy’s revision of the historical relationship between the two regions which is built on embedded inequality. This is because, to be a true partnership, the unequal nature of the relationship between the EU and Africa must be centered. In the contest for its market, Africa has a unique opportunity to harness the competition tactically

Dispute Settlement under the African Continental Free Trade Area Agreement: A Preliminary Assessment

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of the WTO-Styled DSM, the paper argues that the Consultation Phase, offers the AfCFTA Member States a realistic chance of engaging with the DSM. In addition, the paper highlights other factors such as private sector involvement, strategic operationalisation of the DSM, geopolitical and power dynamics as critical to the success of the dispute settlement system

The Politics of Regulating and Disciplining Judges in Nigeria

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in Nigeria. In particular, it asks whether the NJC is undergoing a legitimacy crisis. The Chapter also analyzes the controversial removal of the Chief Justice of Nigeria and the others arrested and situates this within the socio-political and other factors specific to the discipline of judges in Nigeria. In conclusion, the Chapter highlights four specific insights that emerge from the analysis

A Critical Appraisal of the African Continental Free Trade Area Agreement

Despite Africa’s fragmented sub-regional economic regimes, the AfCFTA Agreement represents a significant moment for African States to harness the continent’s international trade and investment opportunities on their own terms. The AfCFTA Agreement initiates a set of complex and lengthy negotiations with a view to reducing tariffs, galvanize industrial production and boost Africa’s trade. The success of Africa’s reinvigorated liberal internationalism embodied in the AfCFTA Agreement depends on a host of factors that primarily includes its effective implementation.This Chapter situates the AfCFTA Agreement in the historical and contemporary contexts of the mixed performance of sub-regional economic communities and other regimes in which its implementation will be embedded. The Chapter also examines the pre-existing structural deficiencies that the COVID-19 pandemic has brought to the fore and their implications for the AfCFTA Agreement. Building on the foregoing, the Chapter also critically examines the blindspots of the pan-Africanist underpinning of the AfCFTA Agreement for the future of trade regime in Africa.The Chapter examines the substantive provisions of the AfCFTA Agreement and its institutions focusing on the question of supranationality in the decision-making process. In the third section, I deepen the Chapter’s analysis by examining the promise of the AfCFTA in the shadow of Africa’s mixed record of economic cooperation. Based on the analyses of the systemic deficiencies in African regional trade regimes, as impacted by the COVID-19 pandemic. To illustrate the latter, I draw on the finance sector - debt burden conundrum and digitalisation. The examples are selected to illustrate areas where historical deep-seated challenges exist and emerging sectors that African leaders should capitalise for a better post-pandemic Africa. I contend that a critical understanding of pan-Africanism and in a morphological sense that acknowledges its shortcomings is important to understanding the attitude of African States to the lethargic implementation of regional trade agreements. Operating with such consciousness, I contend, engenders a better understanding of the intrigues of the implementation phase, as opposed to the narrow, lack of political will arguments