On 1 November 2013, the South African Department of Trade and Industry published the draft "Promotion and Protection of Investment Bill" (the "Draft Bill") for comments. 

The Draft Bill comes shortly after South Africa decided to unilaterally terminate its bilateral investment treaties ("BITs") with certain European states and specifically Belgium, the Netherlands, Luxemburg, Germany, Spain and Switzerland.

The Draft Bill is intended to promote investment by modernizing the current investment regime and getting investors, whether foreign or local, to achieve a balance of rights and obligations that apply to all investors when investing in South Africa.

The Government has stressed that the Draft Bill contains “more than enough clarity, transparency and certainty around the domestic investment regime” and that it provides “adequate protection to all investors, including foreign investors.”

Trade and Industry Minister Dr Rob Davies said on the Polity blog that “[the] DTI can expect opposition to certain proposed sections of the Investment Bill which are deemed not to provide sufficient protection or recourse to foreign investors aggrieved by the conduct of the South African government,” but negated this concern by stating that the provisions on expropriation and compensation were aligned to the Constitution, in which property may only be expropriated in terms of law of general application, for a public purpose, or in the public interest” and “[this] is also subject to compensation, which must be just and equitable, and in line with international best practice.”  (Read the full article here)

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Written by Prof Owen Dean, Chair of Intellectual Property Law, Faculty of Law, Stellenbosch University

And Dr Madelein Kleyn, Fellow of the Chair of Intellectual Property Law, Faculty of Law, Stellenbosch University

Read more about this and other matters at: www.sun.ac.za/iplaw