Preliminary notes - introduction

• Date: 19 December 2019
• Published date: 19 December 2019

xiii

Editors’ Introduction

The original title proposed for the 2018 volume of Acta Juridica was

Foreign Direct Investment (FDI) and the Rule of Law. It was intended

that the proposed volume focus on the relationship between FDI and

the rule of law, which we understood to be ‘certain, accessible and

prospective laws; equally enforced; with access to justice … where

rights may be asserted … through fair trials before an independent

judiciary.’1

The title was proposed in view of the need to grow the South

African economy and the important, yet contested, role that FDI

plays as a source of capital and a contributor to economic growth.

Specically, the intention was to respond to, and augment, the 2015

publication, Risk and Return: Foreign Direct Investment and the Rule of

Law. This 2015 publication sets out the results of a survey conducted

on the factors considered by senior executives of multinational

corporations when deciding to invest in foreign countries.2

In the Risk and Return report the authors surveyed the extent to

which the rule of law3 is a factor – and specically which elements

of the rule of law are most important – when corporate investors

decide to invest in foreign countries. Building on this, we proposed

to elaborate on the relevant aspects of the rule of law in South

Africa and in the African context more broadly. However, we were

then encouraged to broaden the scope of our focus in light of recent

developments and the likely impact of these recent developments,

including the fast-tracked signing of the Agreement Establishing the

African Continental Free Trade Area (AfCFTA).

AfCFTA was signed by 44 member states of the African Union

on 21 March 2018, and came into eect on 30 May 2019, with the

1 Bingham Centre for the Rule of Law and British Institute of Inter national

and Comparative Law Risk and Return: Foreign Direct Investment and the Rule of Law

(2015) 8. This was a collaborative study on the link between FDI and the rule of

law conducted by, among others, the Bingham Centre for the Rule of Law and the

British Institute of International and Comparative Law.

2 Ibid.

3 The rule of law factors considered in the report included whether the laws

of the host country applied equally and fairly to all; elements of justice such as

the normative principles of the host country; practices such as expropriation, the

physical security of persons, the respect of contracts, access to courts and eective

dispute resolution; and government adherence to agreements. See Risk and Return 5.

2018 ACTA Introduction

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