Ghana African Continental Free Trade Area Investment Protocol
Negotiations on an Investment Protocol under the African Continental Free Trade Area (AfCFTA) began among the 54 countries that are parties to the AfCFTA in December 2021. At the February 18-19, 2023 36th Ordinary Session of the Assembly of Heads of State and Government of the African Union, the Assembly concluded and approved a draft AfCFTA Investment Protocol. It is still subject to ratification and implementation by AfCFTA State Parties. State Parties also will need to harmonize their domestic legislation to the final Protocol.
Generally, the Investment Protocol seeks to create an attractive investment environment in AfCFTA State Parties. It provides basic investor protections such as national treatment, most favored nation treatment, and the transfer of funds. There are provisions on investment facilitation, including creating a focal point and streamlining investment administration procedures.
The Investment Protocol seeks to balance State Parties’ right to regulate and investors’ protection. It narrowly defines investment, excluding portfolio investment and sovereign bonds, for example.
Companies with investments in African countries should seek legal counsel to determine whether the Investment Protocol will apply to their particular investment. Generally, the Investment Protocol applies to AfCFTA State Parties and to investors that are national persons or legal juridical persons of AfCFTA State Parties with substantial business in the territory of the State Party under whose law they are constituted or incorporated.
Under the draft Investment Protocol, investment disputes can be settled either through: 1) negotiations or consultations; or 2) through the newly-established AfCFTA Dispute Settlement Body. The implications of the Investment Protocol for existing intra-African Bilateral Investment Treaties is still under discussion.
The Draft Protocol on Investment contains eight chapters:
1. General provisions: definitions, objectives, and scope.
2. Investment promotion and facilitation: promotion, facilitation, incentives for sustainable investment, national focal points, provision of information.
3. Investment protections: national treatment, most favored nation treatment, administrative and judicial treatment, expropriation, and transfer of funds.
4. Sustainable development issues such as: the right to regulate, standards, climate change, public health, development goals, human resources, and technology transfer.
5. Investor obligations such as: national law, business ethics, human rights, labor standards, environmental protection, indigenous people, anti-corruption, corporate social responsibility, corporate governance, and taxation.
6. Institutional arrangements: the establishment of a Committee on Investment, the role of the Pan-African Trade and Investment Agency, and technical assistance.
7. Management and settlement of disputes: state to state, dispute prevention, and investor liability.
8. Final Provisions: the relationship of the Investment Protocol to other international investment agreements, as well as notifications.
For more information on the status of the AfCFTA Investment Protocol, see the AfCFTA Secretariat’s Investment guidance.
For more information about Africa’s regional integration and to formulate your strategy for doing business in this context, contact: U.S. Commercial Service Ghana at Office.Accra@trade.gov, Tel: +233-(0)30-274-1870, www.trade.gov/ghana-contact-us. See our further reporting on AfCFTA.