Clash of Laws? Testing the Effectiveness of the National Treatment Principle against Black Economic Empowerment Laws in South Africa
In 2013, the South African government introduced the Broad-Based Black Economic Empowerment Act 53 of 2003 (B-BBEE Act) with the purpose of correcting the injustices of the past. In 2015, the government introduced the Protection of Investment Act 22 of 2015 with the purpose of regulating investment including, foreign direct investment in South Africa. On one hand, the B-BBEE Act and the Protection of Investment Act justify discrimination to correct the injustices of the past. On the other hand, the international economic law principle of national treatment requires that foreign investors who are in similar economic situations be treated equally to domestic investors. The B-BBEE Act and the Protection of Investment Act are important pieces of legislation aimed at shaping the economy of South Africa. However, they are to a certain extent inconsistent with the international economic law principle of national treatment. In light of the above, the question that begs for an answer is: Is it possible for South Africa to fully implement the national treatment principle taking into account the imperative B-BBEE measures and the obligation in terms of the Protection of Investment Act? This article seeks to test the effectiveness of national treatment’s “in like circumstances” requirement as contained in the Protection of Investment Act against South Africa’s black economic empowerment policies.
Keywords: South Africa; national treatment; equality; democracy; foreign investor; domestic investor; public interest; Broad-Based Black Economic Empowerment
Speculum Juris Volume 35