The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment arbitration in recent years as it assumes a greater role as an exporter of capital and seeks to protect its rapidly growing investments abroad. Nonetheless, as this article will demonstrate, at its very core, ICSID was never designed for, nor has it ever meaningfully served, South-South disputes-which China-Africa disputes technically are. In light of this background, this article weighs in on the debate over ICSID's legitimacy from the perspective of Africa's experience in the last half-century and evaluates ICSID's suitability to resolve current and future investment disputes that arise out of the new economic partnerships between African states and Chinese investors. The article is divided into five parts. Part 2 examines the various narratives on ICSID's legitimacy and critically appraises the existing empirical studies in light of Africa's experience. Part 3 discusses Africa's position on the fundamental doctrinal dilemma in foreign investment law vis-A-vis the new China factor. Part 4 provides a case study of selected ICSID cases involving African states to put the empirical studies in context and shed some light on the nature of justice that the tribunals have dispensed. Part 5 provides a more focused assessment of ICSID's suitability for the resolution of disputes between African states and Chinese investors. Part 6 concludes the article.
The China-Africa Factor in the Contemporary ICSID Legitimacy Debate, 35 U. PA. J. INT"L L. 559