SA’s Bilateral Investment Treaties: Implications for Development and Human Rights

The document reports on a roundtable discussion regarding South Africa's 42 bilateral investment treaties (BITs). It highlights the tension between protecting foreign investment and maintaining the state's ability to regulate for public interest, particularly regarding Black Economic Empowerment (BEE) policies. Key concerns include the risk of lawsuits over expropriation, the lack of transparency in arbitration, and the need to review and amend treaties to align with domestic development objectives.

• South Africa has negotiated at least 42 bilateral investment treaties (BITs), primarily with Western countries and some in Latin America, to assure foreign investors of protection. However, these treaties can restrict the state's regulatory space and its ability to regulate investment.
• There is a conflict between BIT obligations and South Africa's domestic policies, specifically Black Economic Empowerment (BEE). Some treaties with European countries do not provide exceptions for BEE, and the country has already faced a notice of lawsuit in the mining sector related to these policies.
• BITs may provide higher levels of compensation for expropriation than those mandated by the South African constitution. Furthermore, these treaties generally impose obligations only on the government, meaning governments cannot sue investors for failing to meet promised performance levels.
• The arbitration process for BIT disputes is criticized for lacking transparency, as it relies on confidentiality and lacks a precedent system, unlike normal court procedures.

APA

Petersen, L. E. (2006). SA’s Bilateral Investment Treaties: Implications for Development and Human Rights. South African Institute of International Affairs. https://saiia.org.za/wp-content/uploads/2008/04/May-2006-BITS-Workshop-Record-web.pdf

Chicago

Petersen, Luke Eric. SA’s Bilateral Investment Treaties: Implications for Development and Human Rights. South African Institute of International Affairs, 2006. https://saiia.org.za/wp-content/uploads/2008/04/May-2006-BITS-Workshop-Record-web.pdf.

Wikipedia

{{cite report |last1=Petersen |first1=Luke Eric |title=SA’s Bilateral Investment Treaties: Implications for Development and Human Rights |publisher=South African Institute of International Affairs |date=10 May 2006 |url=https://saiia.org.za/wp-content/uploads/2008/04/May-2006-BITS-Workshop-Record-web.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{petersen2006sas, author = {Petersen, Luke Eric}, title = {{SA’s Bilateral Investment Treaties: Implications for Development and Human Rights}}, institution = {South African Institute of International Affairs}, year = {2006}, month = may, url = {https://saiia.org.za/wp-content/uploads/2008/04/May-2006-BITS-Workshop-Record-web.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }