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Contour of Investment Dispute Settlement Mechanism: A Crucial Analysis of its Purview and Impact on the Sustainability of the Extractive Industries in Cameroon

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Contour of Investment Dispute Settlement Mechanism: A Crucial Analysis of its Purview and Impact on the Sustainability of the Extractive Industries in Cameroon


Bande Gulbert Mbah Tarh



Bande Gulbert Mbah Tarh "Contour of Investment Dispute Settlement Mechanism: A Crucial Analysis of its Purview and Impact on the Sustainability of the Extractive Industries in Cameroon" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-7 | Issue-5, October 2023, pp.64-90, URL: https://www.ijtsrd.com/papers/ijtsrd59868.pdf

This paper x-rays the primordial role of the investor-state dispute settlement (ISDS) mechanisms in fostering international cooperation for economic development, especially in the extractive industries (EI). As it provides a forum for investors to bring claims against States and vice versa. The ICSID Convention maintains a careful balance between the interests of the investors and those of the host States - as the Convention permits the institution of proceedings by both the host States and the investors. However, the evolution of the international investment system has transformed this broadly conceived forum into a relatively unilateral forum. Since under the current system, the best a Respondent State can hope for is that the investor covers their legal costs. With the investors having much to gain, while the States have everything to lose. As such, any successful State counterclaims and claims can serve as a deterrent to any frivolous claim from the investors, thus, providing the Respondent States with a motive to bypass jurisdictional objections and move straight to the merits. In this vein, the right granted to the private parties, to effectively sue a sovereign State for breaches of “acquired rights” granted in contracts, international investment agreements (IIAs), and customary international law, has been called, by both the opponents and proponents, as the pulling-down of the State to the same level as a private party. Despite ICSID permission and encouragement of State counterclaims, most State counterclaims in ISDS always fail because of the narrow interpretations of the counterclaim jurisdictional requirements, as well as the lack of substantive protections for States in contracts and IIAs. On this account, the paper also considers the effectiveness of ISDS and enforcement in Cameroon, and the ISDS proceedings under the OHADA system. Which in pursuant to the global recognition of arbitration as a predominant ISDS mechanism and the concomitant growth in the normative and institutional frameworks regulating the conduct of investment arbitration, created the Common Court for Justice and Arbitration (CCJA) and adopted the Uniform Act on Arbitration - as the lex loci arbitri for all arbitration proceedings conducted within the OHADA zone. Although investors are still sceptical about such ISDS mechanisms because they are afraid of its legal and judicial uncertainty and insecurity – thus, prompting them to anchor at the ICSID. That being the case, the paper examines these issues by first cascading the spectrum and implications of the investment dispute settlement mechanisms – by focusing on the rights and obligations of the parties of an ISDS process, and then tackling the purview and impact of investment dispute settlement and enforcement framework in Cameroon, by examining the alternative mechanisms that can enhance sustainability in its EI.

Investment, Dispute Settlement, Sustainability, Extractive Industries, Cameroon


IJTSRD59868
Volume-7 | Issue-5, October 2023
64-90
IJTSRD | www.ijtsrd.com | E-ISSN 2456-6470
Copyright © 2019 by author(s) and International Journal of Trend in Scientific Research and Development Journal. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0) (http://creativecommons.org/licenses/by/4.0)

International Journal of Trend in Scientific Research and Development - IJTSRD having online ISSN 2456-6470. IJTSRD is a leading Open Access, Peer-Reviewed International Journal which provides rapid publication of your research articles and aims to promote the theory and practice along with knowledge sharing between researchers, developers, engineers, students, and practitioners working in and around the world in many areas like Sciences, Technology, Innovation, Engineering, Agriculture, Management and many more and it is recommended by all Universities, review articles and short communications in all subjects. IJTSRD running an International Journal who are proving quality publication of peer reviewed and refereed international journals from diverse fields that emphasizes new research, development and their applications. IJTSRD provides an online access to exchange your research work, technical notes & surveying results among professionals throughout the world in e-journals. IJTSRD is a fastest growing and dynamic professional organization. The aim of this organization is to provide access not only to world class research resources, but through its professionals aim to bring in a significant transformation in the real of open access journals and online publishing.

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