African countries and international investment law: Right to regulate or appropriate regulation or both?

The explosion of Investor-State Dispute Settlement (ISDS) cases from the late 1990s has caused many to criticise the current International Investment Agreements (IIAs) regime. These criticisms include: (1) that the substantive law grants sweeping rights to investors, curtailing the ability of host-state governments to adequately regulate in the public interest; and (2) that the ISDS system enhances corporate power over national sovereignty and interests. While newer IIAs seek to secure for host-states more regulatory space, the measures that often trigger claims by investors have received little attention. This article argues, in the context of African countries, that inappropriate actions of public officials are a major, if not the main, cause of claims against them. If so, a wider regulatory space for host-states, while important, would make little difference to the incidence of ISDS claims against African states. Appropriate regulation is equally, if not more, important.