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The ISDS mechanism is based on a fundamental asymmetry: the foreign private investor can act directly against the State outside the national courts, whereas the State does not enjoy a symmetrical right to assert before the arbitral tribunal the social, environmental or fiscal breaches of the investor.
This dissymmetry turns a classic economic dispute into a real sovereign risk. Arbitral proceedings can lead to severe financial consequences, lastingly affect public finances and undermine the political credibility of a State.
For African countries, this risk is compounded by a structural gap in technical capacity. Investors mobilize international firms that have broken investment disputes, while public administrations often have limited, dispersed and insufficiently specialized legal resources.
This episode examines investor-state arbitration not as a mere tool for securing investments, but as a potentially unbalanced legal architecture, which may limit the normative space for African States, especially when they seek to protect their budgetary, environmental or strategic interests.
