Director
Jackwell Feris is a Director in our Dispute Resolution practice providing dispute resolution, risk advisory and regulatory services in South Africa and various other African jurisdictions. He has particular experience in the following sectors: Arbitrations (both domestic and international); Regulatory and Public Law matters; Mining, Energy and Natural Resources matters and International Investment Law matters.
Investment treaties generally contain a dispute resolution provision for the resolution of disputes between an investor and a host government in relation to certain alleged violations of an applicable treaty. These investment treaties also provide for the steps/mechanism to trigger a potential investor-state arbitration against a host government.
Political Risk broadly refers to a political event within a country that may materially affects the projected profitability or legal framework of an investment or a particular project. The most common political risk factor is usually the risk of expropriation or nationalisation.
National Treatment and Most-Favoured-Nation ("MFN") Principles are contingent standards. National Treatment and MFN are each concerned to ensure that treatment afforded to a foreign investor of another contracting state with the host state is not less favourable that that which are afforded to a national of the host state or that of a third state.
The non-contingent standard of 'Full Protection and Security' is commonly found in investment treaties. It is fundamentally concerned with the failure by the host state to protect an investor's property from actual damage caused by either state officials or the actions of others where the state has failed to exercise due diligence (i.e. police power).
In this instalment, Director Jackwell Feris discusses the fair and equitable treatment guarantee under international investment treaties.
In our fifth instalment, Director Jackwell Feris briefly discusses the guarantee against expropriation and/or nationalisation without compensation which is one of the substantive grounds under international investment treaties for the protection of investment.
In our fourth instalment, Director Jackwell Feris briefly highlights the Substantive Rights that investors of qualifying investments are entitled to rely on under International Investment Agreements (and in some instance foreign investment laws).
Once a party demonstrates that it is a qualifying investor (as discussed in an earlier instalment), under an investment treaty or the foreign investment laws of a host state, the assessment turns to whether the party has a so-called "qualifying investment" in the host state. In this instalment, Jackwell Feris highlights that without an investment being deemed as a "qualifying investment" in a host state, a qualifying investor will not derive any protection for such investment under an investment treaty or under certain instances the foreign investment laws of the host state.
In this instalment, Director Jackwell Feris discusses the concept of "qualifying investor" for purpose of deriving protection for an investment made by a national of one contracting state in the territory of another contracting state to an investment treaty or under certain instances the foreign investment laws of a host state.
Over the next few weeks, CDH will release a number of inserts on international investment protection from a South African and African perspective. The catalyst for these inserts stems from various seminars and workshops led by CDH Director, Jackwell Feris) over the past few years, focusingon the international framework for protection for investments in Africa.
