Balancing Human Rights and Investor Protection in Africa: A Rethink of the Role of the OHADA Legal Order

The primary objective of OHADA is to promote the economic development of its Member States. By harmonizing Member States’ rules regulating economic activities, the regional legislator seeks to guarantee legal and juridical security to investors, and hence massively attracting foreign capitals. This has resulted into the OHADA legal order focusing on (foreign) investor-protection. And due to such a strong economic orientation, it has been characterized by a logic of juxtaposition and indifference human rights issues, yet human rights constitute the compass of all aspects of human activity.

As a result, OHADA ends up - indirectly - aggravating the ineffectiveness of the African human rights architecture, but also hindering its own development objectives because the 1986 African Charter of Human and Peoples’ Rights captures the essentials for Africa’s sustainable (i.e. economic, social and environmental) development which it seeks to promote. Furthermore, the current international investor protection regime, through Bilateral Investment Treaties (BITs), has been impeding the human rights enforcement by restricting the regulatory power of host States. In a nutshell, human rights have been trumped by investor protection in Africa.

This research is tailored to investigate mechanisms through which human rights and investor protection may be balanced, in order to address the above situation. The researcher seeks to contribute to the quest for sustainable development in Africa, by endeavoring to rethink the OHADA as a legal order which may simultaneously foster the realization of human rights, as per the African Charter, and guarantee investors’ legal and juridical security.

The premise of the study being the fact that OHADA and the AU are both intended to facilitate, as an ultimate objective, the regionalization of legal rules for the effective enjoyment of human rights.