Revisiting Bilateral Investment Treaties in the 21st Century. A Kenyan and South African Experience
(Sprache: Englisch)
Bilateral investment treaties (BITs) signed prior to the 21st century are problematic. Some countries with BITs signed during this period have since reviewed those BITs and taken action to address the disadvantages the BITs held for the host nation or have...
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Bilateral investment treaties (BITs) signed prior to the 21st century are problematic. Some countries with BITs signed during this period have since reviewed those BITs and taken action to address the disadvantages the BITs held for the host nation or have either resorted to eradicating some of their BITs. In particular, developing countries that signed BITs with developed nations seem to be disproportionately disadvantaged in these agreements.This research highlights Kenya's current BIT situation and compares it in light of another developing country, South Africa, with regards to its BIT experience. Given that South Africa has undergone an extensive BIT review process and moves to change some of these BITs, this study compares and contrasts the Kenyan and South African experience. The study highlights the possible lessons that could be learnt from the South African BIT review experience and provides recommendations for the Kenyan government regarding its outdated BITs. The lessons and recommendations benefit not only Kenya but also other countries that are still to review their BITs as it adds to the literature on why it is important for countries with such BITs to revisit them and how they can go about the review mechanism best. In addition, the study is also significant as far as it raises awareness of the use and effects of BITs, thereby enabling countries that enter into such agreements to make informed decisions.
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Text Sample:Chapter 2: Potential legal problems in Kenya's BITs:
2.0 Introduction:
This chapter focuses on the four BITs signed by Kenya prior to the 21st Century. These BITs were signed with the Netherlands in 1970, Germany in 1996, Italy in 1996 and the United Kingdom (UK) together with Northern Ireland (hereinafter referred to as the UK BIT) in 1999. Each BIT will be analysed individually with further comprehensive analyses in the context of Kenya's domestic legislative framework or domestic policies. The aim of this analysis is to examine the potential legal problems that may arise from such BITs and how such problems could pose legal challenges for Kenya.
2.1 Brief overview of Kenya's BITs signed prior to the 21st Century:
Kenya's model BIT makes provisions for generally the same terms and does not deviate significantly from the typical modern BIT highlighted in the previous chapter. Allee and Peinhardt point out that there is a fallacy promoted that BITs are uniform when, in fact, each treaty has an internal balance that has been negotiated by the parties. Based on this fact, the four BITs signed by Kenya have minor differences indicating the varying interests or concerns of the parties that negotiated with Kenya. The differences mainly emanate from the manner in which the same provisions are phrased in the different BITs. There is also evidence of certain provisions found in certain Kenyan BITs that are not found in the others. With this in mind, the following section shall focus on analysing the provisions of the four BITs signed prior to the 21st century in order to determine potential problems for the Kenyan government.
2.2 Analyses of Kenya's BITs based on legal interpretation This section will focus on the provisions relating to the definition of terms, the fair and equitable treatment, the protection and security standard, the national treatment and most favoured nation clause, the investor-state dispute resolution provision and the provisions
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that refer to a contracting party's national legislation particularly focused on the legal interpretation of the BITs. This analysis will search for potential problem areas in Kenya's BITs entered into prior to the 21st century.
2.2.1 Definition of terms The terms defined in Kenya's BITs are not uniformly provided neither are they defined in similar terms. Despite such differences, all four BITs do, however, try to define at least either the term 'investment' or 'investor'. The definition of the terms 'investment' and 'investor' are important because, from the perspective of a capital exporting country, the definition identifies the group of investors whose foreign investment the country is seeking to protect through the agreement, including, in particular, ist system for neutral and depoliticised dispute settlement.9 From the capital importing country's perspective, it identifies the investors and the investments the country wishes to attract and from the investor's perspective, it identifies the way in which the investment might be structured in order to benefit from the agreements' protection.
Only the Netherlands, Germany and Italian BITs define who the investor is.3 These three BITs define investor with reference to the term 'nationals' or 'natural person', and 'company' or 'legal person'. The definition of the term 'national' or 'natural person' in the three treaties merely requires that nationality be determined in terms of the laws of the country that the national claims to be from. This proves problematic in that it results in situations in which foreign investors who are not privy to the original BIT may seek to exploit the shortcomings of this definition by altering their nationality so that they benefit from the rights and protection offered under Kenya's BITs. Examples of such situations have been evident in cases such as that of Waguih Siag v The Arab Republic of Egypt. This case involved a situation in which an Egyptian national, who had investments i
2.2.1 Definition of terms The terms defined in Kenya's BITs are not uniformly provided neither are they defined in similar terms. Despite such differences, all four BITs do, however, try to define at least either the term 'investment' or 'investor'. The definition of the terms 'investment' and 'investor' are important because, from the perspective of a capital exporting country, the definition identifies the group of investors whose foreign investment the country is seeking to protect through the agreement, including, in particular, ist system for neutral and depoliticised dispute settlement.9 From the capital importing country's perspective, it identifies the investors and the investments the country wishes to attract and from the investor's perspective, it identifies the way in which the investment might be structured in order to benefit from the agreements' protection.
Only the Netherlands, Germany and Italian BITs define who the investor is.3 These three BITs define investor with reference to the term 'nationals' or 'natural person', and 'company' or 'legal person'. The definition of the term 'national' or 'natural person' in the three treaties merely requires that nationality be determined in terms of the laws of the country that the national claims to be from. This proves problematic in that it results in situations in which foreign investors who are not privy to the original BIT may seek to exploit the shortcomings of this definition by altering their nationality so that they benefit from the rights and protection offered under Kenya's BITs. Examples of such situations have been evident in cases such as that of Waguih Siag v The Arab Republic of Egypt. This case involved a situation in which an Egyptian national, who had investments i
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Bibliographische Angaben
- Autor: Sharon Mutsau
- 2017, 104 Seiten, Masse: 15,5 x 22 cm, Kartoniert (TB), Englisch
- Verlag: Anchor Academic Publishing
- ISBN-10: 3960671695
- ISBN-13: 9783960671695
- Erscheinungsdatum: 01.09.2017
Sprache:
Englisch
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