Despite challenges, the experiences of South Africa and Brazil demonstrate that there is room for genuine reimagination of the investment regime, where the interests of investors are matched with the development concerns of host countries.
A Johannesburg businessman, trying to sue the Mozambique government for over $91 million (R1 billion), has taken the SA government to court after officials allegedly sided with the neighbouring country in the dispute.
The Protection of Investment Act affords foreign investors no protections beyond domestic law, and pointedly disavows investor-state international arbitration. The SADC Protocol was also amended by the SADC Summit of heads of state and government.
The Revised Mining Charter 2017 could, in respect of certain provisions thereto, result in BIT guarantees for qualifying foreign investors being infringed.
Cabinet’s endorsement of the draft International Arbitration Bill in April this year gave a welcome indication that South Africa would soon provide investors with one of the essential tools for operating in the modern global economy.
Legal practitioners have been saying for some time now that SA’s Protection of Investment Act is not in sync with the country’s commitments under the Southern African Development Community Protocol on Finance and Investment.
In the midst of various events, which sent shockwaves through the South African economy, the Protection of Investment Act was enacted on 15 December 2015.