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Africa consultation focuses on developing guide to better negotiate foreign investments

10 June 2019

A two-day consultation has been held with lawyers to create a practical guide helping member countries negotiate investment contracts which serve their development needs.

The consultation meeting was designed to help understand the challenges government lawyers face in negotiating complex investment contracts and the assistance they require. Their feedback will contribute to the development of a guide, Commonwealth Resource of Model Provisions for Investment Contracts.

Twenty government lawyers from Botswana, Eswatini, Ghana, Kenya, Lesotho, Mauritius, Seychelles and Tanzania attended the meeting from 6-7 June, hosted by the Commonwealth in Johannesburg.

Discussions covered a range of issues faced by lawyers, such as understanding the relationship between investment contracts and treaties, the role of national law and the socio-economic development aims.

Ahead of the meeting, a questionnaire was distributed to all participants, as well as to all Commonwealth Attorneys-General. The feedback will help ensure the guide meets the needs and priorities of member countries.

Robert Griffiths, from the UK’s Six Pump Court Chambers, is assisting the Commonwealth in developing the guide. He said: “The backcloth to the structuring of investment contracts is sustainable development. Attracting investment is not an end in itself but a means to an end.

“A primary objective is the improvement of people’s living conditions so as to give people greater control of their lives while respecting the environment.

“It is not just a case of offering prospective investors encouragement to invest through the use of good contracts, it is also a requirement that the contract ensures that the investment, in fact, contributes to the stated objective.”

Lawyers from Botswana and Kenya gave country-specific presentations on existing challenges and opportunities with foreign investors.

Commonwealth legal adviser Matthew Moorhead said: “Government lawyers have an important responsibility to protect the interests of their country when negotiating or reviewing investment contracts with foreign investors. These contracts are often very complex, and highly consequential.

“The Secretariat has come to Johannesburg to learn what challenges government lawyers face in this area, and what kind of assistance they require. Ultimately, the outcome of this project will be a printed, practical resource or guide.”

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