Chapter 6 Investor Protection in South Africa – Eroded Bit by Bit?

In: The BRICS in the New International Legal Order on Investment
Engela C. Schlemmer
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This chapter discusses the following issues, including the general landscape of South Africa’s international investment treaties, the evolution of South Africa’s policy in relation to the dispute settlement mechanisms, the current approach of South Africa to BITs, the Protection of Investment Act (2015), South Africa’s efforts to seek a balance between investor protection and state sovereignty, an assessment of the different bases of investor protection currently in South Africa, and investor protection in the Southern African Development Community (SADC). There is currently more than one system of investment protection in place in South Africa. The BITs that are still operational will continue to provide protection and so will the provisions of the terminated BITs albeit for a limited period of time; those investments that had been made by investors from countries whose governments have not concluded any treaties or whose treaties have not come into operation, are governed by the normal South African law. With the Protection of Investment Act (2015), new investors will potentially have fewer rights than their country men who already have investments in South Africa. The diversity of approaches is not only found within South Africa but can also be seen when looking at the practice in BRICS as a whole. There is no one-size-fits-all when it comes to the protection of investment or the investor-state dispute settlement in existence.

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