Research On Legal Issues Of Foreign Investment Expropriation In African Countries

Expropriation risk,as one of the major risks in the field of international investment,is the first risk that investors from all over the world need to avoid in foreign investment.African countries are one of the important destinations for investment in the world.In recent years,the number of investment expropriation cases involving African countries has been increasing,and the legal system on expropriation is constantly being updated.The potential risk of expropriation of investments in Africa needs to be vigilant for investors from all over the world.The African legal system is mainly divided into four types in the field of investment law: civil law system,common law system,mixed law system and Islamic law system.The level of detail in the law on foreign investment varies.African mixed law countries such as South Africa,Namibia and other countries formulated investment laws relatively late,and imposed various restrictions on international arbitration levied by foreign investment;Islamic law countries such as Egypt passed special investment protection laws,which stipulated that foreign investment More open attitude;common law countries such as Kenya have passed a series of industry regulations in addition to the constitution and investment law,which still has the risk of indirect expropriation;while civil law countries such as Algeria have provisions on investment protection in domestic law On the contrary,it is less and more dependent on the bilateral investment treaty signed between the home country of the investor and the host country to protect it.However,under the background of countries around the world absorbing the laws of other countries to improve their own laws,African countries have continued to evolve their legislation related to foreign investment expropriation on the basis of following the previous legal provisions of the colonial period,and gradually improved according to the needs of their respective countries.out its own characteristics.To a large extent,the localization requirements that appear in the laws of African countries on investment collection are the demands of African countries to change the status quo of domestic local industries at the bottom of the industrial chain.Reasonable localization restrictions will cause losses to foreign investors in the short term,and the improvement of the host country’s society and investment environment will have a positive effect on the local operations of foreign companies in the long run.However,the rise of resource nationalism in African countries brings the expropriation risks arising from the upcoming expropriation-related legislation need to be alerted in advance to avoid irreparable investment losses for foreign investors.At present,the types of investment expropriation disputes between foreign investors and African host countries mainly include expropriation disputes caused by the legislation of the host country,expropriation disputes caused by the management behavior of the host country,or expropriation disputes caused by the inaction of the host country.Some African countries will legislate to expropriate property from domestic foreign investors for the needs of domestic political and economic development.However,some African governments have introduced a series of regulatory measures out of the need for domestic management,which have had a huge impact on the operation of foreign investors in the host country,and even caused investors to leave the territory of the host country due to excessive losses.The occurrence of this damage requires the host country to be held accountable for it.In addition,when a foreign investor suffers property damage in the host country due to illegal expropriation,if the host country government fails or fails to provide timely relief to the investor,it will be suspected of violating the "sufficient and sufficient" provisions in the bilateral investment treaty between the host country and the investor’s home country.Protection and Security Clause”,which also leads to expropriation disputes.Generally speaking,once foreign investors in African countries encounter expropriation from the host country,they can seek relief in the host country through mediation,litigation and domestic arbitration.Investment expropriation disputes can also be resolved through dispute resolution mechanisms in regional agreements signed by African host countries.A considerable number of regional organizations have emerged in Africa,and most of the agreements of these regional organizations include the settlement of disputes over investment expropriation.However,the jurisdictional and legal conflicts between the African regional organization itself and the host country and the overlapping identities of member states have brought potential problems for investors to use this mechanism to resolve investment expropriation disputes.Although both African domestic laws and regional organizational laws have restricted foreign investors from using international arbitration to resolve investment expropriation disputes,international arbitration is still a good choice for foreign investors at this stage.At present,for Chinese investors,when their investment in Africa encounters expropriation,the main options are to obtain expropriation compensation through multilateral investment insurance institutions,using their subrogation system,and purchasing overseas investment insurance to obtain expropriation compensation;or through the relationship between China and its investment host country.The dispute resolution clause in the bilateral investment treaty,the investment expropriation dispute is submitted to the International Center for Settlement of Investment Disputes for arbitration;in addition,the newly established China-Africa Joint Investment Arbitration Center can be selected for dispute resolution.For China,after going through the period of reform and opening up and the "going out" strategy,China has begun to transform from its original status as a capital importer to a capital exporter.At present,the dilemma faced by my country in solving investment expropriation risks in African countries mainly exists in three aspects: First,Chinese enterprises’ investment projects in Africa are mostly concentrated in the unstable investment legal environment of African countries,which makes investments in Africa vulnerable to expropriation risks.,while my country’s research on investment laws in African countries and regions is relatively lagging behind;in addition,legally,the protection of my country’s investment in Africa relies on the use of bilateral or multilateral investment treaties as an ex post relief mechanism,which is derived from my country’s investment in the world.Look,it has indeed achieved remarkable results,which has played a role in promoting foreign investment and protecting investment at the legal level.However,as far as China’s investment in Africa is concerned,its effectiveness in investment protection is still insufficient,which is mainly reflected in two aspects:Aspects: First of all,the number of bilateral investment treaties that China has signed and entered into force with African countries is insufficient,which cannot cover China’s existing investment countries in Africa;in addition,the current bilateral investment treaties signed by China and African countries have been signed for too long,and their terms cannot be Meet existing investment protection needs.Therefore,in order to solve the existing hidden dangers of investment protection and prevent the expropriation risk of investment in Africa,at the national level,we should actively promote the signing and entry into force of new bilateral investment treaties,and improve the content of existing bilateral investment protection treaties.Investment insurance system,and may consider establishing an investment risk management platform to provide comprehensive protection for the safety of Chinese investment in Africa.At the enterprise level,we should strengthen our understanding of the expropriation system in the domestic and regional laws of the investment destination host country,enhance the participation of enterprises in the dispute resolution mechanism for investment expropriation,and actively purchase investment insurance to ensure the safety of investment in African countries.