Thesis Mbembe tabs V5.indd

399 Pages·2015·5.46 MB·English

GOOD GOVERNANCE AND
FOREIGN DIRECT INVESTMENT:
A Legal Contribution to a Balanced Economic Development in
the East African Community (EAC)

GOOD GOVERNANCE AND
FOREIGN DIRECT INVESTMENT:
A Legal Contribution to a Balanced Economic Development in
the East African Community (EAC)
GOED BESTUUR EN DIRECTE
BUITENLANDSE INVESTERINGEN:
Een juridische bijdrage aan een evenwichtige economische
ontwikkeling in de Oost-Afrikaanse Gemeenschap (EAC)
(met een samenvatting in het Nederlands)
PROEFSCHRIFT
ter verkrijging van de graad van doctor aan de Universiteit Utrecht
op gezag van de rector magnificus, prof.dr. G.J. van der Zwaan,
ingevolge het besluit van het college voor promoties in het openbaar te verdedigen
op dinsdag 25 augustus 2015 des middags te 12.45 uur
door
Mbembe Binda
geboren op 22 november 1979
te Kisangani, Democratische Republiek Congo
Promotor: Prof. dr. G.H. Addink
This thesis was accomplished with financial support from the Netherlands
organization for international cooperation in higher education (Nuffic).
To the loving memory of my father,
Mbembe Ndoy Egide (16/09/1942 – 21/12/2012).

Acknowledgments
I would not have successfully reached the finishing line of the four-year marathon
that led to the completion of this doctoral thesis without the advice, orientations,
encouragement, support or company of many people whom I encountered at dif-
ferent times during this journey either by necessity or by chance.
I am most grateful to Prof. dr. G.H. Addink for having trusted me since the begin-
ning by accepting to supervise this research even when my own ideas were not yet
clear enough on what could be the final outcome. He dedicated his time and pro-
vided every means of support in guiding my steps in the constellation of theories
and principles that I had to deal with. Without compromising his usual academic
rigour, he gave free rein to my ideas and allowed me express them in my most
convenient way.
I also express my gratitude to the members of the evaluation committee who have
accepted to give their time and expertise in the evaluation of this thesis.
I would like to express my special thanks to Jet Tigchelaar. She is my true friend.
She was present at the inception of my idea to start a PhD research at Utrecht
University and her contribution was decisive for the materialization of this idea.
During the four years I have spent on writing this thesis, Jet never abandoned me
when I was abroad or in the Netherlands despite her so demanding schedule. With
her, I rode my longest distance by bicycle in the Netherlands, I learnt to read and
use a map, I explored Amsterdam and Utrecht canals by canoe, I tasted, at her
cost, various cuisines in multiple restaurants in Utrecht, Amsterdam, Leiden, etc.
She provided me with the so much needed company when loneliness was about to
get the upper hand, and shared her own experience in writing a PhD in order to
comfort me when doubts surfaced.
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My gratitude is also directed towards the administrative staff of the department of
constitutional and administrative law at Utrecht University. They provided every
support that was needed so that I could write my thesis with the utmost serenity.
Together with them I also extend my thanks to Peter Morris for editing this writ-
ing and to Titia Kloos for her follow up during the editing process.
My roommates, Paulien, Sandra, Melissa, and later Hilke, with whom I spent every
single day during a substantive part of this journey, provided a very friendly and
inspiring atmosphere that allowed me to be productive. Words might not be
enough to describe my gratitude for all the academic and extra-academic lessons I
learnt from each of you. I simply say dank je wel. I would also like to take this op-
portunity to thank all the other PhD candidates with whom I had the opportunity
to interact. Each one’s personal stories and challenges were thought-provoking.
In the Netherlands I met many people and most of them have contributed in one
way or another to the completion of this thesis. While I cannot exhaustively name
them all, I principally address my heartfelt thanks to Flory for long breaks in Kis-
wahili or in French that reminded me of home, to Patient Gumuliza and his family
for their hospitality for the last and decisive two-month stay in Utrecht, and
to Marjolein for her hospitality at her home in Nijmegen and for the
teaching opportunity she gave me.
Geraldine Umugwaneza, the deputy-registrar at the East African Court of Justice,
and Stephen Agaba, the Principal Legal Advisor at the East African Community,
were very helpful during my research trips to Arusha. They provided first-hand
information, recommended relevant documentation, and introduced me to the
right people at the EAC Headquarters. Thanks a lot.
My family and friends paid probably the heaviest toll for my long absence. Howev-
er, I know they are happy that thanks to their abnegation I have successfully taken
up this challenge. I thank all of those who stood by my side all along this journey,
but I am especially thankful to my mother for her unconditional support and for
taking care of my son, Nelson. With these lines I extend my gratitude to Prisca for
her constant support.
All others, men, women, both young and old, who directly or indirectly supported
me but whose names are not mentioned here, I acknowledge that they are my un-
sung heroes. Maybe they would not have wished to be thanked, even anonymously.
But anyway I say thank you.
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List of acronyms and
abbreviations
ACP : African Caribbean and Pacific Group of States
AfDB : African Development Bank
AGOA : African Growth and Opportunity Act
AICD : Africa Infrastructure Country Diagnostic
BIC : Burundi Investment Code
BIT : Bilateral Investment Treaty
CCIA : COMESA Common Investment Area
CEPGL : Great Lakes Economic Community
CET : Common External Tariff
CIAA : Common Investment Area Agreement
CIAP : Common Investment Area Protocol
COMESA : Common Market for Eastern and Southern Africa
CPI : Corruption Perception Index
DRC : Democratic Republic of Congo
EABC : East African Business Council
EAC : East African Community
EAC-CMP : East African Community Common Market Protocol
EACCO : East African Community Certificate of Origin
EAC-CST : East African Community Single Customs Territory
EAC-CUP : East African Community Customs Union Protocol
EAC-DS : East African Community Development Strategy
EAC-FMP : East African Community Free Movement of Persons
EAC-FMW : East African Community Free Movement of Workers
EAC-IP : East African Community Industrialization Policy
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EACJ : East African Court of Justice
EAC-RoE : East African Community Right of Establishment
EAC-RoO : East African Community Rules of Origin
EACSO : East African Common Services Organization
EADB : East African Development Bank
EAHC : East African High Commission
EALA : East African Legislative Assembly
EC : European Communities
ECIM : ECOWAS Common Investment Market
ECJ : European Court of Justice
ECOWAS : Economic Community of West African States
ECtHR : European Court of Human Rights
EEC : European Economic Community
EP : Export Promotion
EPA : Economic Partnership Agreement
EU : European Union
FDI : Foreign Direct Investment
FTA : Free Trade Area
GATS : General Agreement on Trade in Services
GDP : Gross Domestic Product
HDI : Human Development Index
IBRD : International Bank of Reconstruction and Development
ICSID : International Centre for the Settlement of Investment Disputes
ICT : Information and Communication Technology
IFI : International Financial Institution
IIAG : Ibrahim Index for African Governance
IMF : International Monetary Fund
IPA : Investment Promotion Authority
IS : Import Substitution
JIPS : Joint Investment Promotion Strategy
KIPA : Kenya Investment Promotion Act
LDC : Least Developed Countries
MERCOSUR : Southern Common Market
MFN : Most Favored Nation
MIC : Model Investment Code
NT : National Treatment
NTB : Non-Tariff Barrier
ODA : Official Development Aid
OECD : Organization for Economic Cooperation and Development
RDB : Rwanda Development Board
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