Published 22 February 2023
Amidst calls for reforms of investor-state dispute settlement mechanisms, one key question that ought to be asked is whether any approach recommended or adopted seeks to accord justice to the parties. The overarching objective of any dispute settlement system is thus 'access to justice.' The current regime on investor-states dispute settlement and access or denial of justice to the parties has been a subject of debate for a long time now. On the one hand, states are of the view that the current regime accords greater control and protection to investors. On the other hand, investors have been alleging denial of justice due to state control. States, in attempts to 'accord justice' to themselves, have continuously advocated for the exhaustion of local remedies in investor-states dispute settlement. Whether this proposal is plausible is contentious. This paper seeks to interrogate the various forms through which justice in investor-state arbitral proceedings has been denied. To demonstrate those, it analyses the case of Swissbourgh Diamond Mines Limited and Others versus The Kingdom of Lesotho. Looking forward, this paper also analyses whether or not the investment dispute settlement mechanism set out under the Protocol on Investment to the African Continental Free Trade Area will facilitate access to justice by foreign investors.
This paper will be part of the second TDM Special Issue on "The African Continental Free Trade Agreement (AfCFTA)". More information here www.transnational-dispute-management.com/news.asp?key=1809