The COMESA Common Investment Area: Substantive Standards and Procedural Problems in Dispute Settlement

The Common Market for Eastern and Southern Africa (COMESA) is an organisation of 20 African states established in 1994, replacing the previous Preferential Trade Area between the members. Since its inception COMESA has taken an active role in the economic integration of its members. In 2000 the COMESA Free Trade Area was established. On 22 and 23 of May 2007 the twelfth Summit of COMESA Authority of Heads of State and Government, held in Nairobi, Kenya, adopted the Investment Agreement for the COMESA Common Investment Area (CCIA Agreement). According to COMESA, “the CCIA Agreement is a precious investment tool whereby the COMESA Secretariat contemplates to create a stable region and good investment environment, promote cross border investments and protect investment, and thus enhance COMESAs attractiveness and competitiveness within COMESA Region, as a destination for Foreign Direct Investment (FDI), and in which domestic investments are encouraged.” Among the key pillars of the Agreement is the, “settlement of investment disputes through negotiations and arbitration mechanism.” It is the purpose of this paper to examine the new CCIA Agreement and the investor-state dispute settlement mechanism that this treaty has put in place. It will do so not only through an examination of procedural structures, but also by considering the interaction between these and the substantive claims that can be brought by an investor under the Agreement. The paper will do so in three stages. First, so as to set the scene, the wider contemporary debate on the problems of investor-state dispute settlement, and their proposed solutions, will be examined so as to explain the background against which the dispute settlement provisions of the CCIA Agreement were finalised. It is clear from the face of these provisions that they seek to offer a new approach to investor-state dispute settlement which takes into account the types of problems that will be outlined below. Indeed it is fair to say that the CCIA Agreement is a significant new model for these purposes, in that it proposes an approach that is sensitive to the realities of developing states and of the particular conditions that influence approaches to international commercial arbitration in Africa. Given that the majority of International Investment Agreements (IIAs) are based on developed country or developed regional models, this requires that serious attention is paid to the CCIA Agreement in the wider investment law community. It offers an alternative formulation and points to how future generations of IIAs might be drawn up so as to provide, in the words of the Agreement, “investors with certain rights in the conduct of their business within an overall balance of rights and obligations between investors and Member States.” The second part of the paper will offer a detailed analysis of the investor-state dispute settlement procedures in the CCIA Agreement. The third part will then consider the types of claims that an investor can make under the Agreement. There are numerous innovations in the substantive provisions of the Agreement that will have a significant effect on the subject matter of possible claims and thus on their admissibility before a tribunal whose jurisdiction is based on the Agreement

The Changing Face of Transnational Business Governance: Private Corporate Law Liability and Accountability of Transnational Groups in a Post-Financial Crisis World

This article seeks to critically assess the recently dominant financialized model of corporate law and governance and its contribution to the creation of the asocial corporation geared only to the enhancement of shareholder value. This article places corporate law in a wider context of national and international legal developments that, together, create a framework for the financialization of transnational corporate activity. This article shows that a new approach to transnational corporate governance is emerging from a number of sources. These predate the crisis but have been given impetus by it. In particular, three important phenomena are examined: the rise of activist litigation against the parent companies of multinational enterprises (MNEs) for the actions of overseas subsidiaries; the new framework for human rights and business developed by the U.N. Special Representative of the Secretary General; and the increased role of the state as an owner, controller, and regulator of enterprise as a result of the financial crisis and the rise of state-owned and -controlled MNEs from newly industrialized countries. Together, these developments contribute to a reconsideration of the enhanced shareholder value model and the development of a more socially rooted appraisal of the corporation and of corporate law and governance. In addition, new approaches to international economic law instruments and institutional activities can further enhance this reform process, and examples of existing and potential changes are given in the final part. (First presented at a symposium in the context of the biannual conference of the German Law & Society Association (Vereinigung fur Recht und Gesellschaft e. V) on Transnationalism in Law, the State, and Society. This conference was organized together with the Collaborative Research Center (CRC) 597 Transformations of the State at the University of Bremen from March 3-5, 2010. The Collaborative Research Center 597 \u27Transformations of the State, U. BREMEN, www.staat.uni-bremen.de

Regulating multinational digital platform enterprises: The case of Uber

The global business landscape is being changed by multinational digital platform corporations. This Perspective focuses on how Uber’s bid to be treated as a technology provider, and not a taxi services company, impacts effective regulation across a number of fields, and how International Investment Agreements may affect Uber’s regulation

修订国际劳工组织三方宣言以促进负责任的商业

This Perspective explores the implications for the home countries of large MNEs of the agreement reached by over 140 countries in 2021 to enact a corporate minimum tax of 15%. It argues that the corporate minimum tax complements the trend to reduce the negative impact of unfettered globalization on labor, and it protects the ability of home countries to finance a robust social safety net. Home countries should adopt the corporate minimum tax, and that includes the US, which last year failed to adapt its Global Intangible Low-Taxed Income approach to the corporate minimum tax

Promoting responsible business through the revised ILO Tripartite Declaration

This Perspective proposes reforms to the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy to enhance its effectiveness in promoting responsible business conduct. These focus on greater clarity of corporate obligations in line with current developments in business and human rights and stronger workplace accountability

监管跨国数字平台企业：以Uber为例

The global business landscape is being changed by multinational digital platform corporations. This Perspective focuses on how Uber’s bid to be treated as a technology provider, and not a taxi services company, impacts effective regulation across a number of fields, and how International Investment Agreements may affect Uber’s regulation

Corporations and the Uses of Law: International Investment Arbitration as a "Multilateral Legal Order"

This paper seeks to examine the claim, made by certain legal scholars, that international investment law, though based mainly on Bilateral Investment Treaties (BITs) is in fact a multilateral order that introduces principles of an emergent “global administrative law” into the regulation of state conduct in relation to foreign investors and their investments. Such scholars argue that this order develops through the decisions of investor-State arbitral tribunals which are creating a harmonised understanding of the meaning of BIT provisions and an institutional system of adjudication that furthers the development of global administrative principles. Through a critical examination of this approach the paper argues that this field is not a multilateral order but an unstructured process of privatised legal entrepreneurship which seeks to further a professional interest in developing an extensive, investor friendly, regime of BITs. Furthermore, that process fails as a means of providing effective or legitimate legal review of administrative action. The argument is made both on a theoretical level and by a review of a specific issue in international investment law, namely, the development of wider types of claims and the rise of so-called “treaty shopping” by means of corporate group structuring. In particular the multi-jurisdictional location of various affiliates in a multinational enterprise creates a network of potential claimants in investor state disputes, giving rise to the risk of multiple claims, while the possibility of setting up affiliates in various jurisdictions creates opportunities for “treaty shopping”. “Treaty shopping” involves the enterprise locating an affiliate in a jurisdiction that has signed an investment protection treaty with the host country, allowing various affiliates and/or the parent in a group enterprise to benefit from treaty protection even though they possess the nationality of a state that has no such agreement with the host. In addition “treaty shopping” can be practiced by claimants possessing the nationality of the host country itself by way of the incorporation of a “shell company” in a country that has an investment protection agreement with the host country. It is argued that interpretations of treaty provisions in this area lack real legitimacy and create unacceptable procedural burdens on the host country