Property rights, negotiating power and foreign investment: An international and comparative law study on Africa

Abstract

Property rights are crucial in shaping foreign investment and its socio‐economic outcomes. Their allocation, protection and regulation influence the way the risks, costs and benefits of an investment are shared. For investors, the protection of property rights is a tool to shelter their business interests from arbitrary host state interference. For local people affected by an investment project, it may offer an avenue to secure their livelihoods, through providing safeguards against arbitrary land takings. Tensions may arise between different sets of property rights, as host state regulation to strengthen local resource rights may raise project costs and interfere with investors’ rights ‐ for example, under the international‐law regulatory taking doctrine, or “stabilization clauses” in investor‐state contracts. While there are vast literatures about the international law on foreign investment, the human right to property, and national law on investment, land and natural resources in Africa, this study analyses in an integrated way how the different sets of property rights involved in an investment project are legally protected under applicable law, whether national, international or “transnational”. The study explores whether the property rights of foreign investors and affected local people tend to enjoy differentiated legal protection; and, if so, whether the legal protection of “stronger” property rights may constrain efforts to strengthen “weaker” ones. This research question has both theoretical and practical implications. Differences in the strength of legal protection may affect negotiating power. Weak legal protection and negotiating power make local resource users vulnerable to arbitrary dispossession of their lands. From a theoretical standpoint, linking legal analysis to an analysis of negotiating power in foreign investment projects can provide insights on the relationship between law and power ‐ in a globalised world, does the law serve more powerful interests, can it be used to empower disadvantaged groups, or is it rather irrelevant?