The Contribution of Campbell v. Zimbabwe to the Foreign Investment Law on Expropriations

Since 2000, the Zimbabwean government has expropriated a string of white-owned commercial lands. In March 2008, in a consolidated case (Mike Campbell (Pvt) Ltd and Others v. Zimbabwe), 79 applicants filed an application with the Southern African Development Community Tribunal (SADC Tribunal) to challenge the legality of the acquisition of certain agricultural lands by the Zimbabwean government. On 28 November 2008, the Tribunal ruled that the expropriations of agricultural lands by the Zimbabwean government were illegal because they were based on racial discrimination and did not compensate the applicants. This paper seeks to understand the contribution that the Campbell case brings to the law on foreign direct investment, especially the principle that expropriations must not be discriminatory. Investment law generally prohibits discriminatory expropriations or nationalizations on the basis of race, with the notable exception of post-colonial expropriations carried out to end the economic domination of the nationals of the former colonial power. By declaring that the expropriations of white-owned agricultural lands in Zimbabwe were illegal because they amounted to racial discrimination, the SADC Tribunal in Campbell appears to develop the investment law jurisprudence on expropriations by creating an exception to the exception. Accordingly, the question that this paper addresses centers on the extent to which a country can expropriate property as part of a general government program to correct present economic inequalities brought about by a colonial past. After an exposition of the applicable laws and an explanation of the contribution of Campbell, the paper discusses whether the SADC Tribunal rightly decided the Campbell case and, if not, how the case could and should have been decided