{"id":283629,"date":"2024-11-06T16:44:29","date_gmt":"2024-11-06T15:44:29","guid":{"rendered":"https:\/\/dailyjus.com\/?p=283629"},"modified":"2024-11-06T16:44:29","modified_gmt":"2024-11-06T15:44:29","slug":"the-afcfta-investment-protocol","status":"publish","type":"post","link":"https:\/\/dailyjus.com\/index.php\/2024\/11\/06\/the-afcfta-investment-protocol\/","title":{"rendered":"The AfCFTA Investment Protocol"},"content":{"rendered":"\n

Pioneering Practice in International Investment Agreements<\/strong><\/h1>\n\n\n\n
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THE AUTHOR:
Jack Bownes<\/strong>, Associate at Gide<\/strong><\/a><\/p>\n\n\n\n

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On 19 February 2023, the African Union Member States adopted the Protocol to the Agreement Establishing the African Continental Free Trade Area (“AfCFTA<\/strong>“) on Investment (2023)<\/a> (the “Protocol<\/strong>“).<\/p>\n\n\n\n

The Protocol aims to promote and protect intra-African investment in the free trade area and will harmonise coexisting national, bilateral and regional investment laws on the continent. Notably, the 173 existing Bilateral Investment Treaties (“BIT<\/strong>“) between member states will be terminated and replaced by the Protocol in one of a number of significant reforms.<\/p>\n\n\n\n

The Protocol is therefore an opportunity to align the African investment treaty landscape with modern treaty practice. An analysis of the final draft, published in January 2023, suggests that the Protocol will be a progressive investment treaty on a number of fronts.<\/p>\n\n\n\n

Particularly innovative features include the replacement of the Fair and Equitable Treatment<\/a> (\u201cFET<\/strong>\u201d) standard with “administrative and judicial treatment<\/em>” (\u201cAJT<\/strong>\u201d), the Protocol’s approach to environmental protection, a greater balance between State and investor rights and obligations and the possibility for States to bring counterclaims against investors.<\/p>\n\n\n\n

This article will conduct a comparative analysis of these and similar provisions of other ‘new generation’ International Investment Agreements (\u201cIIAs<\/strong>\u201d) in order to determine the extent to which the Protocol is pioneering modern treaty practice.<\/p>\n\n\n\n

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New Generation IIAs<\/strong><\/strong><\/span><\/h2>\n\n\n\n

The history of IIAs can broadly be divided into two generations: \u2018old generation\u2019 (1950s to 2010) and \u2018new generation\u2019 (2010 onwards).<\/p>\n\n\n\n

Old generation IIAs are typically short and inadequately detailed in several regards. The substantive legal protections and definitions of these IIAs are broadly drafted and the dispute resolution mechanisms are often limited to recourse to arbitration in the event of any dispute between investor and State, with no pre-requisite to engage in attempts at amicable settlement. For these reasons, old generation treaties have come under fire for being too ‘investor-friendly’.<\/p>\n\n\n\n

Consequently, efforts have been made by academics, States and investment law practitioners over the past decade to reform the investment treaty landscape through a new generation of IIAs. At the forefront of the new generation IIAs\u2019 objectives are:<\/p>\n\n\n\n