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/lp/edinburgh-university-press/the-public-interest-safeguards-in-arbitration-in-ghana-6Ljnv0CB7j
- Publisher
- Edinburgh University Press
- Copyright
- Copyright © American Meteorological Society
- ISSN
- 0954-8890
- eISSN
- 1755-1609
- DOI
- 10.3366/ajicl.2020.0345
- Publisher site
- See Article on Publisher Site
Abstract
Investor-state dispute settlement (ISDS) claims mostly challenge public interest regulatory measures. This has led to efforts to reform international investment agreements (IIAs), with some states terminating them. Orthodox capital protection-centred scholarship maintains support for IIAs, claiming they are necessary to attract investment for development. Policy space-centred critical scholarship rejects or is critical of IIAs saying their limitations on regulatory autonomy are unjustifiable because private capital alone cannot lead to development. An assessment of public interest safeguards in public-private arbitration in national constitutions and statutes is missing in this scholarship. Accordingly, I analyse the constitutional foundations of public-private arbitration in Ghana and show that in conformity with the constitutional role of public institutions, arbitration legislation safeguards the public interest. Therefore for Ghana and similarly placed African states to retain their right to regulate, arbitral tribunals must respect and uphold the protections accorded the public interest constitutionally and in arbitration legislation.
Journal
African Journal of International and Comparative Law – Edinburgh University Press
Published: Nov 1, 2020