Investment dispute settlement reform in Africa: a proposal for an AfCFTA investment-related dispute settlement system

Abstract Investor-state arbitration (ISA) has been criticized on numerous grounds, sparking debate over whether reform is necessary and what it should entail. Amid the debate, states are beginning to adopt various institutional mechanisms, either as a complement or alternative to ISA. This article focuses on Africa, examining one of the emerging institutional choices – a complementary mechanism – that requires investors to exhaust local remedies before resorting to ISA tribunals. Adopting a comparative institutional analysis framework, this article argues that the choice of a complementary mechanism should be reconsidered, as it fails to support the normative values of fairness, efficient resource allocation, and peace. Instead, it proposes creating an African Continental Free Trade Area (AfCFTA) Investment-related Dispute Settlement (AIRDS) regime modelled after the AfCFTA trade dispute settlement regime. Apart from ensuring fairness, efficiency, and peace, the AIRDS regime could shape Africa’s stance in global ISDS reform discussions.