Legal pluralism – The investor’s view

• Jurisdiction: South Africa
• Citation: 2011 Acta Juridica 272
• Date: 15 August 2019
• Author: Johann Schiller
• Published date: 15 August 2019
• Pages: 272-284

Legal pluralism – The investor’s view

JOHANN SCHILLER*

The research in legal pluralism has traditionally focused on customary law.As a

general theory, however, it lends itself to any normative area, irrespective of

territory and content. Hence legal pluralism could also be a useful tool when

engaging in complex projects such as investments in the exploration and

exploitation of resources which affect the population in the area concerned.

Moreover, legal pluralism helps to explain phenomena such as ‘soft law’(eg in

mergers and acquisitions) and the development of the lex mercatoria. This

article explores the above by examining the Hydrocarbon Code of Morocco

and selected rules from the social f‌ield of international commerce.

I INTRODUCTION

This essay examines the relationship between property law and foreign

investment from the point of view of multinational corporations. In

doing so, it shifts the perspective from access to resources by acquiring

ownership in the classical Western tradition to other modalities. Because

such modalities are conditioned by a plurality of norms, the investor

engaged in making decisions must be aware that not only an examination

of the state legal systems concerned will have a bearing on his decision. In

this contribution I argue that legal pluralism should be adopted by the

multinational investor as a tool for reaching a decision whether to seek

access to the resources concerned.

The hypothetical situation to be considered is the intended access by a

multinational corporation (the investor) to sub-soil resources such as oil,

diamonds or gold in a country whose indigenous population does not

have a clear (state) legal title to the land concerned. The extraction of the

resources will involve considerable investment in the construction of

plant and the importation of machinery will signif‌icantly affect the

environment. Furthermore, the question is whether such other stake-

holders have rights (direct or indirect) to these resources and, if so,

whether these are in terms of state legal norms or other norms as yet not

recognised by the state legal order.

The hypothetical case assumes that the investor plans to gain access to

the resources directly. In other words, the investor does not intend to gain

access to the resources by a mergers and acquisition process, which

involves the purchase of a company (share deal) or the purchase of the

* Dr jur (Vienna), Managing Director Alfa Laval Holding GmbH, Germany, Deputy

General CounselAlfa Laval Group.

272

2011 Acta Juridica 272

© Juta and Company (Pty) Ltd