The Kenyan government has made parliamentary oversight and public participation a constitutionally mandated part of any BIT approval. While that same parliamentary involvement has fallen short of its desired potential, it could still play a valuable role in ensuring that BIT negotiations are open and transparent, and that the public is both aware of and engaged with the treaty-making process and what it means. This piece examines the lessons learned from Kenya’s BIT and ISDS experience to date. The author argues that the Kenyan High Court’s ruling that double taxation treaties do not require oversight and approval from the legislative branch should not set an example for the government as it considers how to revise its investment treaty-making processes.
Kenya prevails in BIT arbitration: British investors’ claims dismissed due to the absence of environmental impact assessment
Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, ICSID Case No. ARB/15/29