THE INTERNATIONAL COMPARATIVE LEGAL GUIDE: FOREIGN DIRECT INVESTMENT REGIMES 2022 – THIRD EDITION: EAST AND SOUTHERN AFRICAN CHAPTER

This chapter aims to provide an overview of the national policies and regulatory frameworks applicable in respect of foreign investments in Kenya, Mauritius, South Africa and Tanzania. Each of these African economies aim to attract foreign investment and have varied policy frameworks to this effect – ranging from actively incentivising local investment, to enhancing ease of doing business.

At present, no country requires a general national security ‘screening’ for foreign investments, although South Africa recently introduced amendments to this effect as part of its merger control regime, which have not yet been brought into effect. While these economies aim to attract foreign investment, the protection of particular national interests – most notably, so-called public interest considerations such as employment and the competitiveness of national industries – is also a key feature of their socio-economic policies.

Public interest considerations are generally applied in the competition law context, under the assessment of mergers where conditions may be applied to remedy perceived negative public interest impacts. There may also be sector-specific legislation requiring local ownership or other protectionist measures. As such, the framework with respect to foreign investment in each jurisdiction reflects both pro-investment policies and laws alongside national interest protection provisions. The balancing of positive economic impacts against potentially negative national interest outcomes appears to be left to be ‘regulated’ on a case by case basis.

This article first appeared on ICLG.com.

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