The Sovereign-Commercial Hybrid: Chinese Minerals for Infrastructure Financing in the Democratic Republic of the Congo

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This Note examines the legal aspects of an important but inadequately scrutinized development: the Sino-Congolese minerals-for-infrastructure investment deal. While the Sino-Congolese deal is somewhat sui generis, it bears the hallmarks of a breed of investment agreements used increasingly by China and other sovereign states for the ‘Angola mode’ of financing, or resource-backed infrastructure financing in south-south development. Neither a treaty between states, nor a commercial contract between a host state and a purely private investor, the framework agreement for the deal constructs a hybrid sovereign-commercial legal regime from the doctrines and mechanisms of public international law, international commercial law and public law. By situating contract interpretation within the broader context of Sino-African relations, this Note reveals how doctrinal gaps emerge in the hybrid contract that present conceptual challenges to an evolving area of investment law. Characterizing the deal as an investor-state relationship misconceives the excess sovereign power that is involved, and negates fundamental principles that inform the rights and duties of inter-state dealings in public international law, and also of states and private parties in international investment law. The Note concludes that while the deal may be capable of delivering meaningful benefits to the DRC, the underdevelopment of legal approaches and of self-regulatory organizations will likely vitiate the long-term sustainability of such arrangements for either country.