The issue of Discrimination in International investment Law-The Case of Mike Campbell and others v The Republic of Zimbabwe revisited
Date
2013-04-23
Authors
Phiri, Layeni
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Abstract
Foreign Direct Investment (FDI) is an essential factor contributing to the economic and developmental well being of any country. In order to attract and sustain its flow, host States have to create an attractive investment climate. In addition to this, a host State must also afford protection to the foreign investor. Notwithstanding this however, a host State has the right, as a matter of sovereignty, to regulate investments within its jurisdiction. One way this is done is through expropriations and/or nationalisations.
International Investment Law accords protection to foreign investors against the foregoing measures. As a general proposition, international investment law prohibits or outlaws discriminatory expropriations and nationalisations. As a matter of fact, it is a main aim of international investment law to protect foreign investors against discrimination in general. This paper evaluates the various forms of foreign investment protection in specific relation to expropriation. This paper assesses the requirements for lawful expropriations, highlighting the lucidity of these principles and their effectiveness in protecting foreign investment without abrogating the needs and interests of the host state arising out of the right to regulate. This paper also appreciates the complex issue of discrimination in international investment law, bringing to light the standard of fair and equitable treatment under which the principle of non-discrimination is prevalent. This paper further appreciates the interpretation and application of the principles in relation to the protection against discrimination, establishing whether or not these principles are applied consistently and establishing whether or not these principles are absolute. This work further recognises and evaluates the contribution that the case of Mike Campbell v The Republic of Zimbabwe brings to the law on FDI, particularly the standard that imposes that expropriations must not be discriminatory. The noteworthy exception to this standard is that of post-colonial expropriations carried out to end the economic domination of the nationals of the former colonial power. The SADC Tribunal in the Campbell case seems to have developed an exception to this exception.This paper appreciates the extent to which a country can fall within the general exception to the principle of discrimination.
After considering the foregoing, this paper draws findings and makes conclusions and recommendations in relation to the adequacy or inadequacy as the case may be of the following: foreign investment protection measures generally, the requirements for lawful expropriations and nationalisations, the protection against discrimination in international investment law as part of the standard of fair and equitable treatment and the contribution that the Campbell case has made to the foreign investment law on expropriations.
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Keywords
Investments, Foreign (international law) - law and Legislation - Zimbabwe