Clement Mkiva, Gerhard Rudolph, Jonathan Barnes, Wihan Meintjes and Mongale Falla wrote the South Africa chapter in the 2025 Investment Treaty Arbitration Review published by Global Arbitration Review. The chapter provides answers to the following questions.
- What are the key features of the investment treaties to which this country is a party?
- What are the distinguishing features of the definition of ‘investor’ in this country’s investment treaties?
- What are the distinguishing features of the definition of ‘investment’ in this country’s investment treaties?
- What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?
- What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?
- What are the distinguishing features of the national treatment/ most-favoured-nation treatment standard in this country’s investment treaties?
- What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?
- What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?
- What are the other most important substantive rights provided to qualifying investors in this country?
- Do this country’s investment treaties exclude liability through carve-outs, non-precluded measures clauses, or denial of benefits clauses?
- Are there any relevant issues related to procedural rights in this country’s investment treaties?
- What is the approach taken in this country’s investment treaties to standing dispute resolution bodies, bilateral or multilateral?
- What is the status of this country’s investment treaties?
- To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?
- Which government department or departments manage investment treaty arbitrations on behalf of this country?
- Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?
- Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.
- Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.
- Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?
- Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?
- Describe the national government’s attitude towards investment treaty arbitration.
- To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?
- Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.
- Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?
- List of available arbitration awards or cases initiated involving this country’s investment treaties.
- List of articles or books that discuss this country’s investment treaties.
Click here to read the guide.
