South African Courts and the Expropriation Conundrum: Caveat Foreign Investor, by Azwimphelele Langalanga

Summary

A milestone decision was passed down by South Africa’s premier court seated in Braamfontein, Johannesburg. This was in the case of Agri South Africa v. Minister for Minerals and Energy.[1] It is a case testing the legality of the Mineral and Petroleum Resources Development Act (MPRDA) 28 of 2002 (as amended), particularly its black empowerment provisions. Simply put this piece of legislation had the effect of vesting all mineral ownership to the state. Before it came into being, mineral resources underground were owned by the land owners who in most instances happened to be farmers.[2] These farmers had inter alia the right to exploit the minerals and to lease such mining rights to anyone on their terms. The claimants challenged it on the basis that it expropriated their property. The court ruled that there is a difference between expropriation and deprivation. And basically provided that the concept of indirect expropriation did not apply in South African law.

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EU Commission proposes to open negotiations for a BIT with China, by José Ángel Rueda

On 23 May 2013 the European Commission decided to ask EU Member States for their agreement on a mandate to open negotiations on an investment agreement with China.[1] As the Commission has underlined, “this is the first ever proposal for a stand-alone investment agreement since foreign direct investment became the exclusive competence of the EU under the Lisbon Treaty” on 1 December 2009.

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List of pre-2009 extra-EU BITs published by the European Commission, by José Ángel Rueda

On 8 May 2013 the Official Journal of the European Union has published the List of the bilateral investment agreements referred to in Article 4(1) of Regulation (EU) No 1219/2012 of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries.[1]

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Signature of Canada-Nigeria FIPA, by José Ángel Rueda

Here in Europe we are longing for the publication by the European Union of the list of pre-2009 BITs that its 27 Member States want to maintain in force or permit to enter into force with third States pursuant to Articles 2 and 4(2) of Regulation 1219/2012.[1] This list will clarify the status of some 1,200 BITs entered into by EU Member States between 1959 and 2009 – undoubtedly a major event for international investment law.[2]  Continue reading