Die jüngste Einrichtung der Weltbankgruppe befasst sich - in Ergänzung zum Internationalen Zentrum für die Beilegung von Investitionsstreitigkeiten (ICSID) - mit dem Schutz grenzüberschreitender (Direkt-)Investitionen durch Garantien gegen Auslandsrisiken. Dabei wirkt sie nicht nur als Abrundung des Schutzes durch bilaterale Investitionsschutzverträge und nationale Investitionsversicherungen, sondern kann auch als Katalysator für eine bessere Kooperation im Nord-Süd-Verhältnis bedeutsam werden.

Die jüngste Einrichtung der Weltbankgruppe befasst sich - in Ergänzung zum Internationalen Zentrum für die Beilegung von Investitionsstreitigkeiten (ICSID) - mit dem Schutz grenzüberschreitender (Direkt-)Investitionen durch Garantien gegen Auslandsrisiken. Dabei wirkt sie nicht nur als Abrundung des Schutzes durch bilaterale Investitionsschutzverträge und nationale Investitionsversicherungen, sondern kann auch als Katalysator für eine bessere Kooperation im Nord-Süd-Verhältnis bedeutsam werden.

At the dawn of democratic rule in the period 1994–1998, South Africa concluded 15 bilateral investment treaties (BITs), mostly with European nations. Some of these treaties were concluded before the Constitution of 1996. The country has since concluded a total of 47 BITs, with the majority not in effect as they were not ratified per the required constitutional processes. The policy decision to enter into BITs was taken by the African National Congress (ANC) government, led by the late former state president Nelson Mandela. The BITs were seen as an important guarantee to attract foreign investment into the country. The aim was to provide added assurance that foreign investments were safe in a democratic South Africa after many years of international isolation and sanctions. The conventional wisdom at the time was that BITs would increase foreign investor appetite to invest and the country would experience rising levels of foreign direct investment (FDI) as a result. This would facilitate economic growth and the transition of the country into the global economy. South Africa concluded BITs with seven of the top ten investor countries. In October 2013 the South African government cancelled a number of BITs with these European countries invested in South Africa. These countries – namely Belgium, Luxembourg, Spain, Switzerland, Germany and the Netherlands – complained of lack of consultation by the South Africans. On 1 November 2013 the Minister of Trade and Industry published, in Government Gazette No 36995, the Promotion and Protection of Investment Bill (PPIB or Investments Bill) as the proposed primary legislative instrument for the protection of foreign investments. This created much uncertainty among many European nations as well as in the United States of America (US), who were concerned about the motivation for cancelling bilateral treaties in favour of domestic legislation. BITs had been a part of the policy instruments regulating foreign investments in the country for over 20 years. Globally these treaties have been used to regulate foreign investments in a number of areas, and to provide protection to investments such as full protection and security, guaranteed pre-establishment rights, ease of repatriation of funds, most-favoured nation, fair and equitable treatment, national treatment and efficient dispute settlement mechanisms, among other provisions. In most cases international arbitration via the International Centre for the Settlement of Investment Disputes (ICSID) and other international arbitral mediums has been a standard provision in the treaties. This has allowed foreign investors to bypass host countries’ legal systems. The latter is believed to be a significant inducement for foreign investors, guaranteeing that should a dispute arise, or if an expropriation occurs, the investor could institute an international arbitral process against the host government. International arbitration is preferred by foreign investors for the reason that, in some cases, domestic courts may lack independence from the state, and may make partial rulings that do not protect investors. Furthermore, international arbitration processes are more efficient and produce rulings faster than domestic courts, which are usually burdened with bureaucratic procedures and limited resources. In cases where delay exacerbates injury, prompt resolution of disputes is preferable. This study evaluates the Investments Bill and the rationale applied by the government of South Africa to cancel BITs with major trade and investment partners in favour of this legislation. The thesis focuses on the Investments Bill, in light of the objective provided by the Department of Trade and Industry (DTI) for its enactment to law. The Investments Bill is subjected to a constitutional analysis to determine its compliance therewith. Comparisons are also made between the Investments Bill provisions and the prevailing international law principles on foreign investments. The Investments Bill is then critically evaluated against emerging trends on FDI regulation on the African continent to determine its congruence or lack thereof with best practice recommendations at regional economic community (REC) and African Union (AU) level. The thesis concludes with a set of policy recommendations to the DTI on how to improve South African policies related to the regulation of foreign investments taking into account the national imperative as well as Southern African Development Community (SADC) and other broader African continental objectives of harmonisation of FDI regulation, including the Tripartite Free Trade Area (FTA) implementation. The timing of this thesis is significant for South Africa. It adds to various deliberations that are taking place as the Investments Bill is set to makes its way through the legislative approval processes in 2015. The Bill has been met with opposition from some segments of society. Others have expressed support – including several state departments, the ANC, the South African Communist Party (SACP) and other political formations. The summary of findings contained in the thesis will be presented to the DTI to influence policy directions of the state in terms of foreign investment regulations. Should the Bill be enacted, the Minister of Trade and Industry is required to promulgate the dispute resolution mechanism that will govern investment disputes. The findings of this study will be important to the determination of how such dispute resolution mechanisms may function. Furthermore, in 2010 Cabinet instructed the DTI to develop a model new-generation BIT Template to be utilised by South Africa, should a compelling reason arise to enter into bilateral agreements. The research results will assist policy-makers to develop policies that are consistent with and align with the overarching Africa strategy that has been heavily promoted by South Africa. The country faces a number of challenges, particularly those related to low economic growth, high levels of poverty, unemployment and record levels of inequality. The gap between the rich and poor, in terms of the Gini coefficient, was 0,67 based on the World Bank Development Research Group Report of 2010. It is reported as one of the highest in the world and is believed to have worsened since the dawn of democracy. / Public, Constitutional and International Law / LL. D. (Public, Constitutional and International Law)

We begin with a short analysis of the history of Investor-State Dispute Settlement (ISDS). We then discuss the merits and demerits of the regime, such as the arguments between finality, speediness, and correctness. Following from this, historical reforms are discussed, and whether those issues have gotten worse or better since these discussions. The modern problems are discussed, leading to the explanation of the “legitimacy crisis”. As Appellate Mechanisms (AM) and Investment Court Systems (ICS) both propose multi layered systems, we argue whether ISDS must be a “one bite at the apple” system. We expand on the issues of regulatory chill, before showing the contradictions in the granting of awards. From this, a discussion is raised on the advantages of a tenured system of adjudicators, particularly in reference to their apparent bias. We delve deeper into the direct consequences of the perceived issues of ISDS, in the context of human rights, the environment, and other issues of sovereignty.As more reforms are suggested, the question of “what makes arbitration, arbitration?” is raised. From here, we may begin to suggest reforms based on which key factors are to be preserved. Firstly, we discuss current reform options, such as the Mauritius Convention. We take inspiration from existing AM, and prior discussions on the implementation of such a system across the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) frameworks. We analyse whether these discussions have led to change by comparing trends in drafting.Thereon, we offer suggestions of reform. ICS and how this would be implemented, what it would look like structurally, and its positive and negative effects. Using the Comprehensive Economic and Trade Agreement (CETA) and other contemporary ICS reform suggestions, we gain some knowledge of what an ICS regime could and should look like, the implementation of AM previously discussed in this regime, and other. Finally, we offer a different solution to the problems, yet less pragmatic, the termination of arbitration.

1 The Influence of EU Common Investment Policy on the System of International Investment Law Abstract Extending exclusive European Union (EU) competence to foreign direct investment (FDI) in the Lisbon Treaty has had profound implications. The EU began to develop its own investment policy, including negotiating either international investment agreements or comprehensive trade and investment agreements with third parties. Taking into account the magnitude of the EU economy and the fact that EU Member States have concluded almost 1 400 bilateral investment treaties (BITs) out of roughly 3 300 in force worldwide, the potential of European influence over the system of international investment, based principally on BITs, is enormous. The aim of this dissertation is to assess how and in which way the new EU competence changes the system. The EU investment policy has developed a specific approach towards investment protection and investment dispute mechanism which does not envision content declared at its beginning. According to initial documents such as the European Commission's Communication Towards a comprehensive European international investment policy, the Union should have followed the available best practices of the Member States. Nevertheless, during the first bilateral negotiations with Canada and...