Safeguarding the State’s Regulatory Autonomy: Rethinking Bilateral Investment Treaties in Kenya
Abstract
The current regime under which Bilateral Investment Treaties (BITs) are negotiated is tilted
in favour of the foreign investor. Consequently, the BITs that have been concluded by Kenya
curtail the government’s regulatory autonomy. This is made possible through formal
trappings of the law, which though subtle and indirect, lead to chilling implications on the
government’s regulatory autonomy over foreign investments. While the situation can be
blamed on poor negotiation skills on the part of the Kenyan government, in reality, such
would be just but an epidermal view as the problem runs much deeper. Through an
interpretative analysis of the historical emergence of BITs, this paper argues that BITs were
intended to achieve just that – limit governmental action aimed at regulating foreign
investments. Therefore, a critique of BITs, purely on textual analysis, would be misplaced,
not because of lack of legitimacy in the concerns, but rather, for a failure to appreciate the
role played by these ever-present historical nuances. It is for this reason that this paper
contextualizes its analysis of BITs within the greater historical context with the ultimate aim
of unravelling the implication of this skewed normative framework on the regulatory
autonomy of the Kenyan government. The paper demonstrates the pitfalls that await a
country too eager to trade its rights to full sovereignty in the hope of growing its economy
through Foreign Direct Investments. By so doing, this paper advocates for a conscious
management of Kenya’s BIT portfolio and a possible rethinking of the necessity of BITs for
the country.
Publisher
University of Nairobi
Subject
Safeguarding the State’s Regulatory Autonomy: Rethinking Bilateral Investment Treaties in KenyaRights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
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