The COMESA Common Investment Area: Substantive Standards and Procedural Problems in Dispute Settlement

The Common Market for Eastern and Southern Africa (COMESA) is an organisation of 20 African states established in 1994, replacing the previous Preferential Trade Area between the members. Since its inception COMESA has taken an active role in the economic integration of its members. In 2000 the COMESA Free Trade Area was established. On 22 and 23 of May 2007 the twelfth Summit of COMESA Authority of Heads of State and Government, held in Nairobi, Kenya, adopted the Investment Agreement for the COMESA Common Investment Area (CCIA Agreement). According to COMESA, “the CCIA Agreement is a precious investment tool whereby the COMESA Secretariat contemplates to create a stable region and good investment environment, promote cross border investments and protect investment, and thus enhance COMESAs attractiveness and competitiveness within COMESA Region, as a destination for Foreign Direct Investment (FDI), and in which domestic investments are encouraged.” Among the key pillars of the Agreement is the, “settlement of investment disputes through negotiations and arbitration mechanism.” It is the purpose of this paper to examine the new CCIA Agreement and the investor-state dispute settlement mechanism that this treaty has put in place. It will do so not only through an examination of procedural structures, but also by considering the interaction between these and the substantive claims that can be brought by an investor under the Agreement. The paper will do so in three stages. First, so as to set the scene, the wider contemporary debate on the problems of investor-state dispute settlement, and their proposed solutions, will be examined so as to explain the background against which the dispute settlement provisions of the CCIA Agreement were finalised. It is clear from the face of these provisions that they seek to offer a new approach to investor-state dispute settlement which takes into account the types of problems that will be outlined below. Indeed it is fair to say that the CCIA Agreement is a significant new model for these purposes, in that it proposes an approach that is sensitive to the realities of developing states and of the particular conditions that influence approaches to international commercial arbitration in Africa. Given that the majority of International Investment Agreements (IIAs) are based on developed country or developed regional models, this requires that serious attention is paid to the CCIA Agreement in the wider investment law community. It offers an alternative formulation and points to how future generations of IIAs might be drawn up so as to provide, in the words of the Agreement, “investors with certain rights in the conduct of their business within an overall balance of rights and obligations between investors and Member States.” The second part of the paper will offer a detailed analysis of the investor-state dispute settlement procedures in the CCIA Agreement. The third part will then consider the types of claims that an investor can make under the Agreement. There are numerous innovations in the substantive provisions of the Agreement that will have a significant effect on the subject matter of possible claims and thus on their admissibility before a tribunal whose jurisdiction is based on the Agreement.