Abstract

This article explores a definitional approach to investment that is distinct from the common approaches adopted by African countries in their investment treaties and agreements. This article seeks to make a case for an impact investment centred envisioning of investment in investment treaties. The current framework of investment treaties involving African states shows an overwhelming preference for an asset or qualified asset-based approach favouring investors from capital-exporting states due to the broadly worded definitions adopted and the tacit omission of investments implicating sustainable development and other development objectives peculiar to African states' needs. There appears to be a paradigm shift from this trend at the level of instruments enacted by African Regional Economic Communities. These instruments favour an enterprise-based approach with an infusion of the Salini criteria with the controversial fourth element - "contribution to a host state's economic development." Whilst the foregoing approach implicates the development objectives relevant to the needs of capital importing states, by merely retaining the Salini 4th prong, it ignores the several criticisms levelled against the fourth Salini prong in the jurisprudence and the literature. Besides, a review of African investment treaties shows that African treaty negotiators sparsely adopt this approach to defining investment. This article argues that an impact investment centred envisioning of investment avoids all the pitfalls associated with the Salini 4th prong. What is more, with the investment protocol of the African Continental Free Trade Agreement set for negotiations later this year, this article makes a case for an impact investment centred definition of investment as a viable value proposition.

This paper will be part of the TDM Special Issue on "The African Continental Free Trade Agreement (AfCFTA)". More information here www.transnational-dispute-management.com/news.asp?key=1809