Africa has always aspired for the economic integration of its markets. This endeavour is evident right from the 1960s clamour for independence and shortly thereafter, as newly independent states. During this period African countries under the umbrella of the OAU underscored economic cooperation as the basis for intra-African relations. However, it was not until the year 1991, with the conclusion of the AEC Treaty, that the continent formally adopted a framework and roadmap towards continental economic integration. The 40-year roadmap towards a continental economic community was premised upon the two principles of harmonisation and devolution. Moreover, the six-stage integration process set out in Article 6 of the AEC Treaty identifies the eight RECs in Africa as the building blocks for the continent’s proposed single market and economic union. It also underpinned the economic integration of the continent on the harmonious co-existence of the RECs. A step-wise ambitious integration model was adopted under Article 6 of the AEC Treaty. The model envisaged the creation of a Free Trade Area (FTA), followed by a Customs Union, a Common Market and ultimately a fully-fledged Economic Union. As a first step towards the continental integration, the African Continental Free Trade Area (AfCFTA) was unveiled in 2018. Cross border, intra-African trade, is bound to lead to a rise in investment and commercial transactions on the continent. This, in turn, will inevitably lead to disputes which require resolution. The economic integration of the continent is fast evolving under the aegis of the AU; whose dispute settlement system is currently also under review. Significantly, the AU has consolidated its dispute settlement mechanism, following the merger in 2008 of the ACJ and ACH&PR, into a single AU court, known as the African Court of Justice and Human Rights (ACJ&HR). It is within the context of the merged AU single court that this thesis grounds itself. It seeks to interrogate the adequacy of the continental trade and investment dispute settlement system and examines its viability within the consolidated AU dispute settlement system. While the AU led continental economic integration gains pace, the dispute settlement system, critical for the integration, is either lagging behind or is not receiving adequate attention. As a result, the dispute settlement systems created under the AEC and AfCFTA are incongruent with the principles of harmonisation and devolution, which underpin the continent’s economic integration goals. The recommendations proffered, align with the philosophy of harmonising and devolving the continental trade and investment dispute settlement system. The research proposes to locate the continental trade and investment dispute settlement within the AU single court system. The principal recommendation is not only to expand the Court’s jurisdiction in order to accommodate the trade and investment mandate, but also to use sub-regional REC judicial organs as courts of first instance for the ACJ&HR. A hierarchical order of the continental court system, with the single AU Court at the apex, is also proposed in this study as the supreme overarching supranational judicial organ. / Public, Constitutional, and International Law / LL.D.

Foreign investments in SADC are regulated by Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP), as well as the laws of SADC Member States. At present, SADC faces the challenge that this regime for the regulation of foreign investments is unstable, unsatisfactory and unpredictable. Furthermore, the state of the rule of law in some SADC Member States is unsatisfactory. This negatively affects the security of foreign investments regulated by this regime. The main reasons for this state of affairs are briefly explained below. The regulatory regime for foreign investments in SADC is unstable, due to recent policy reviews and amendments of key regulatory instruments that have taken place. Major developments in this regard have been the suspension of the SADC Tribunal during 2010, the amendment of the SADC Tribunal Protocol during 2014 to bar natural and legal persons from access to the Tribunal, and the amendment of Annex 1 during 2016 to remove investor access to international investor-state arbitration, better known as investor-state dispute settlement (ISDS). The regulation of foreign investments in SADC has been unsatisfactory, among others because some SADC Member States have failed or neglected to harmonise their investment laws with both the 2006 and the 2016 Annex 1. Furthermore, SADC Member States such as Angola, Democratic Republic of Congo (DRC), Malawi, Mauritius, Seychelles, Eswatini, Tanzania, Zambia, and Zimbabwe have multiple Regional Economic Community (REC) memberships. This places these Member States in a position whereby they have conflicting interests and treaty obligations. Finally, the future of the regime for the regulation of foreign investments in SADC is unpredictable, due to regional integration efforts such as the recent formation of the COMESA-EAC-SADC Tripartite Free Zone (T-FTA) and the African Continental Free Trade Area (AfCFTA). The T-FTA is entitled to have its investment protocol, while the AfCFTA investment protocol will be negotiated from 2018 until 2020. These developments entail that the 2016 Annex 1 will soon be replaced by an investment protocol at either the T-FTA or AfCFTA levels, thereby ushering a new regime for the regulation of foreign investments in SADC. The unknown nature of the future regulations create uncertainty and instability among foreign investors and host states alike. This study analyses the regulation of foreign investments in terms of Annex 1 and selected laws of SADC Member States. In the end, it makes the three findings mentioned above. In order to address these findings, the study makes four recommendations. The first is that foreign investments in SADC must be regulated at African Union (AU) level, by means of an AfCFTA investment protocol (which incidentally is now the case). Secondly, investor-state disputes must be referred to the courts of a host state, optional ISDS, the African Court of Justice and Human Rights (ACJ&HR) or other agreed forum. Thirdly, an African Justice Scoreboard (AJS) must be established. The AJS will act as a gateway to determine whether an investor-state dispute shall be referred to the courts of a host state, ISDS, the ACJ&HR or other forums. Fourthly, the office of an African Investment Ombud (AIO) must be created. The AIO shall facilitate the early resolution of investor-state disputes, so as to reduce the number of disputes that may end-up in litigation or arbitration. / Mercantile Law / LL. D.