10 Leading Theories in African Investment Regimes

Executive Summary

1. Third World Approaches to International Law (TWAIL)

Third World Approaches to International Law is a scholarly approach that points out the non-existent neutrality of international law in the economic context. TWAIL points out that international law principles, such as those embedded in post-colonial investment law treaties, reinforce colonial dominance over Global South countries.¹. Scholars such as James Thuo and Anthony Anghie advocate reconfiguring power structures to promote justice, sovereignty, and equitable development in developed states.².

In the African investment context, this is emulated in the many bilateral investment treaties (BITs) concluded after colonisation, while states were still under asymmetrical bargaining conditions. This is further entrenched in current trends in investor protections, the prioritisation of capital interests over community and environmental impact, and the overall economic dependency on foreign direct investment (FDI). TWAIL, therefore, provides a strong analytical position that situates treaty practice as a continuation of neo-colonial history and calls for African states to consider treaty terminations, model BITs, and the recalibration of the investor-state dispute settlement mechanism as necessary structural steps in future African investment.

2. Legal Pluralism

Legal pluralism is one of the theories I encounter most in my research on African investment. It is based on the principle that law does not follow a singular approach but recognises multiple normative orders, as is the case across African jurisprudence.³. Legal frameworks in Africa sit at the intersection of statutory, international, and customary law, particularly in community governance systems.

In addition, land tenure remains rooted in community land ownership models across most African states, which do not conform to the formalist landownership systems of the West. Investment agreements negotiated at the international level have often failed to recognise these plural realities, a disconnect that has extended into the application of international tribunals. Projects addressing Sustainable Development Goal 15 (Life on Land) and other initiatives affecting community sustainability must embrace legal pluralism. Ignoring this principle creates regulatory gaps, weakens state obligations, and increases the likelihood of conflicts and investment disputes.

3. Post-Colonial Legal Theory

Postcolonial legal theory focuses on how contemporary legal and governance structures continue to reflect colonial systems.⁴. This theory is concerned with historical continuity, institutional design, and the socio-political legacies of colonialism, asking questions like: how do current laws and practices reproduce structures similar to those of the colonial era? The postcolonial theory lens is often used in a national or regional context, whereas TWAIL is used in an international context.

When analysed alongside Third World Approaches to International Law (TWAIL), the Post-colonial legal theory lens proves that international investment law’s architectural framework continues to reproduce imperialistic dynamics rather than dismantling them.⁵.

In the African context, this is evident in the extractive concession models, particularly the continuation of investor protections in community land dispossession across sectors such as mining, petroleum, and large-scale land development. Affected communities, as demonstrated in the Endorois Case, struggle to reconcile collective land rights with state- and private-sector resource development, illustrating the limits of formal legal systems shaped by colonial and postcolonial hierarchies.⁶.

1. B S Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3; Makau Mutua, ‘What Is TWAIL?’ (2000) 94 American Society of International Law Proceedings 31.
2. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2004); James Thuo Gathii, ‘TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography’ (2011) 3 Trade Law and Development 26.
3. John Griffiths, ‘What Is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1; Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869.
4. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press 2011).
5. See generally B S Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3; Makau Mutua, ‘What Is TWAIL?’ (2000) 94 American Society of International Law Proceedings 31. TWAIL scholars argue that colonial structures have been carried forward into supposedly post‑colonial legal norms.
6. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya (African Commission on Human and Peoples’ Rights, Communication 276/2003) (2009) (recognising indigenous land rights against state resource‑development actions rooted in historical patterns of dispossession.