Kenya’s Bilateral Investment Treaties Rethinking the Vaguely Drafted Substantive Provisions

Abstract

This study examines the language of the substantive provisions of the BITs in force in Kenya and argues that they are vaguely drafted with language that is broad and highly generalised. Specifically, the study looks at the “Most-Favoured Nation”, “Fair and equitable treatment”, “Full protection and security”, and “Expropriation” provisions in the BITs. These protections limit the kind of measures that can be imposed on investments and are enforceable against the State through Investor State Dispute Settlement system at international tribunals. The study argues that the vague language of these substantive provisions makes the expanse of investment protection very broad. Additionally, because the BITs confer protection on investors according to their relation to the other contracting States, the definitions of “investor” and “investment” are a critical element in determining the scope of application of the substantive protections. The definitions of “investor” and “investment”, similarly, are couched in language that is broad. Drawing from international tribunal awards, the study demonstrates how such language is prone to potentially expansive interpretation by international tribunals simply because there isn’t sufficient interpretative guidance from the BITs. It advocates for possible rethinking of