Preliminary notes - foreword

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

vii

Foreword

This volume of Acta Juridica, also entitled Foreign Direct Investment and

the Law, engages with one of the most urgent issues for the continent of

Africa: foreign direct investment (FDI), in the context of the Agreement

Establishing the African Continental Free Trade Area (AfCFTA).

FDI is by no means assured, even in the context of a free trade

area, if the soil for its reception is not carefully prepared. It has been

convincingly shown that the various elements of the rule of law –

legality, legal certainty, equality and access to justice1 are required by

investors more than virtually any other factor as a condition for FDI.2

It is too often said that the qualities of the rule of law are for

some parts of the world only, or are suitable for the North rather

than the South, or for the developed world only. This view is both

condescending and empirically wrong. FDI will inevitably be

deterred if the use of funds is distorted by corruption, or where

domestic dispute resolution does not permit fair trials before

independent and impartial adjudicators. Investment will shirk

countries that do not honour contracts or property rights, or which

tax retrospectively or discriminate or intimidate selected rms or

individuals without any hope of recourse.3 Without the rule of law,

power and resources tend to fall into – or remain in – the hands

of the powerful, to the exclusion of the poor and the marginalised.

The authors of all the chapters are fully aware of these and other

conditions necessary to make AfCTA work, and of the various

regulatory mechanisms that will facilitate its implementation. That

is why this is a truly important and original volume, for which both

the authors and editors are to be warmly congratulated.

PROFESSOR SIR JEFFREY JOWELL QC

October 2019

1 See the var ious features of the rule of law as agreed between 47 members of

the Council of Europe with very dierent legal traditions: European Commission

for Democracy Through Law (Venice Commmission) Rule of Law Checklist CDL-

AD (2016) 007.

2 See the convincing study establishing this fact car ried out by the Bingham

Centre for the Rule of Law and the Economist Intelligence Unit Risk and Return:

Foreign Direct Investment and the Rule of Law (2014).

3 See the cr itical discussion about law and development in D Marshall (ed) The

International Rule of Law Movement (2014). The defence of the rule of law in that

work is put forward by J Goldston in ‘New rules for the rule of law’ at 1–41.

2018 ACTA Foreword

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