The future of the investment regime rests upon a better balancing of the rights and obligations of States and investors. The effectiveness of the investment regime will also depend on enhanced integration between international investment law and other fields of international law, such as human rights law and water law.

Les contrats d’investissement minier conclus par les Etats africains révèlent généralement des engagements juridiques en équilibre précaire et déséquilibrés au stade de leur formulation. Une telle situation peut néanmoins être résolue par plusieurs instruments juridiques, dont les Principes Unidroit sur les contrats du commerce international, qui sont de plus en plus appliqués par les tribunaux arbitraux pour les contrats miniers. Ces principes prévoient divers mécanismes pour corriger le déséquilibre contractuel. En particulier, la doctrine de l’« avantage excessif » permet de pénaliser le déséquilibre présent dans la conclusion du contrat. D’autres mécanismes complètent également cette règle lors de l’exécution du contrat. A cette fin, la doctrine de « hardship », inscrite dans les Principes Unidroit, joue un rôle majeur dans la restructuration des contrats déséquilibrés. Après avoir considéré les modalités techniques d’application de ces principes aux contrats miniers, il convient d’analyser leur contenu tel qu’appliqué par la jurisprudence et leur pertinence dans la configuration d’un équilibre général dans les relations Etat-Investisseur. C’est là l’objectif de ce chapitre.Mineral investment contracts concluded by African States generally reveal legal commitments in precarious balance and almost congenital imbalance. Such a situation can nevertheless be resolved by several legal instruments, including the Unidroit Principles of International Commercial Contracts, which are increasingly applied to mining contracts by arbitral tribunals. These principles provide for various mechanisms for correcting the contractual imbalance. In particular, it is the ‘gross disparity’ doctrine which makes it possible to penalize the contemporary imbalance in the signing of the contract. Also, other mechanisms supplement this rule if one is at the stage of executing the contract. For this purpose, hardship doctrine as enshrined in the Unidroit Principles plays a major role in the restructuring of unbalanced contracts. After considering the technical modalities for the application of these principles to mining contracts, it is a matter of analyzing their content as applied by the case law and their relevance in the configuration of a general equilibrium in State–investor relationships. This is exactly what this chapter intends to do.

The economic development of every nation rests principally on the level of technological capabilities and innovation capacities that can be mustered. Technology is not a free public good that is transferred without restriction, but instead is consciously generated through an investment in research and development, making the outcome of the research a protected property. The private nature of the property right inherent in technology seems to pose a difficulty for the development imperatives of developing countries. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) largely recognizes the preceding, despite its shortcomings, by embodying provisions for flexibility to balance the goal of intellectual property rights protection with the technological transfer for development. However, the evolving regime of TRIPS-Plus is poised to erode potential chances of successful transfer to developing countries, particularly African countries. Accordingly, African countries must look inward and readjust their policies to withstand and contain the emerging development-clipping regimes, and consequently, advance their technological growth objectives.

The objective of this chapter is to analyze the role played by the African human rights system in the regulation, prevention and accountability of multinational corporations’ acts which are damaging for human rights. The African human rights system is understood in this chapter to mean political bodies of the African Union (AU) that set human rights standards, as well as bodies and institutions that provide for their implementation, including the African Commission on Human and Peoples’ Rights and the African Court of Human and Peoples’ Rights. Does an African normative framework exist regarding the liability of multinational corporations for human rights violations? What could be the main features of the rules and principles entrenched in such a framework? Does this framework strike the proper balance between the pursuit of economic development, through foreign direct investment, and the protection of human rights? This chapter would argue that Africa needs clear guidelines on the protection of human rights in the face of multinational corporations.

The contributions made in this book by prominent international lawyers in the field aim at highlighting the current challenges that African nations face in relation to the investment regime. The various contributions also suggest paths to shape an African voice in the reform of the investment regime and to ensure that international investment agreements contribute better to the sustainable development of African countries.

In an assiduous attempt to entrench the private rights of investors and promote foreign investment, arbitral tribunals have given expansive and very broad interpretations to the meaning and scope of most-favoured-nation and fair and equitable treatment clauses without taking cognisance of the public policy space of host States. It is the basic contention of this chapter that the legal regime of foreign investment only imposes obligation on sovereign host States without imposing corresponding duties on foreign investors. The chapter argues that such an approach makes the relationship between foreign investors and host States unbalanced and, as a result, has undermined the sovereignty of host States. This threatens the legitimacy of the international investment regime.

The objective of this chapter is to examine the extent to which the human rights system in Nigeria is being repositioned to engage the increasing influx of international economic players and to bring transnational economic entities in compliance with local and international human rights standards. This enquiry is necessary, since the chapter is based on the assumption that the confluence of business with human rights is the platform for sustainable investment and development in Nigeria. Taking the negative consequences of the oil business in Nigeria as an example, the chapter argues that the interface of business and human rights is in desperate need of radical reform.

Drawing on existing studies of migrant workers and civil society in China, the introduction examines the relevance of current theoretical debates in the social sciences and in Chinese studies to the migrant workers’ social, spatial and political exclusion, and looks for a new framework which can account for the phenomena observed during the fieldwork carried out by the author. This chapter presents the empirical background, the theoretical framework of the book, the methodological approach taken and the contribution the book makes in the field of citizenship, civil society and labour movement studies.