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The Middle Eastern and African Arbitration Review 2018

The Evolution of Investment Arbitration in Africa

Introduction

Investment arbitration in Africa is on the verge of transformation due to the continent’s progressive integration into the global economy and its growing experience in international dispute resolution. In recent years, the continent has made significant efforts to become an attractive destination for investments.

According to the United Nations Conference on Trade and Development’s (UNCTAD) 2017 World Investment Report, Africa attracted US$59 billion of foreign direct investment in 2016, which represents 3.4 per cent of all global investments.1 Foreign direct investment inflows to Africa were projected to increase by 10 per cent to US$65 billion in 2017.2 The top five foreign direct investment recipients were Angola, Egypt, Nigeria, Ethiopia and Ghana, which all together absorbed more than half of all foreign direct investment inflows into the continent.3 Africa is also a foreign direct investment exporter. In 2016, foreign direct investment outflows from the continent stood at US$18.2 billion or 1.3 per cent of the global share.4

Recent developments suggest that the continent has strengthened its inter- and intra-regional economic integration for capturing foreign direct investment (FDI). For example, Africa has entered into an economic partnership agreement with the European Union (EU).5 In addition, the creation of the Tripartite Free Trade Area covering half of the continent was signed in 2015, and the establishment of the Continental Free Trade Area involving all African states is currently being negotiated. These initiatives would in the medium to long term accelerate the exchange of FDI within Africa and beyond its frontier.

Regarding investment arbitration, the International Centre for Settlement of Investment Disputes (ICSID) registered 135 cases involving an African state as of May 2017,6 of which 21 per cent were disputes arising out of intra-African BITs.7 These 135 cases represented one-fifth of all ICSID cases,8 and the majority of them involved oil, gas and mining disputes.9 Africa’s attempts to diversify its economy coupled with the changing political landscape towards international arbitration have transformed the practice of investment arbitration in Africa in such a manner that can accommodate its own needs. The most recent initiatives in the Organisation for the Harmonization of Business Law in Africa (OHADA) region, with the enactment of a new Uniform Arbitration Act, confirms this trend for local institutions to grasp investment arbitration topics as efficiently as possible in a context of an increasing volume of cases.10

Focusing first on the African perspective towards investment arbitration from a historical angle will help us analyse the new regime of this dispute settlement in the present day, in terms of substantive and procedural protections.

Investment arbitration and Africa: a historical perspective

African states, after gaining their independence in the mid-1960s, endorsed investment arbitration and in particular the ratification of the ICSID Convention, as the travaux préparatoires suggest, since they were particularly interested in the enhancement and promotion of foreign direct investment and the injection of foreign capital towards African countries.11 It is also noteworthy that the first ever arbitration initiated under the ICSID Convention was against an African state, Morocco.12

The statement of Aron Broches, the general counsel of the World Bank, regarding the African regional meeting held in Addis Ababa (Ethiopia) sheds light upon the involvement of African states in the discussions prior to the adoption of the final draft of the ICSID Convention.13 Twenty-nine countries out of 31 invited, attended the meeting. Broches reports that there was a general consensus among the African states regarding the purpose of the ICSID Convention.14 As it is evident from the report, African states wanted to expand even further the jurisdiction of ICSID, so to include, not only the investor-state disputes, but also those arising between an investor and state-controlled operations and development boards.15 Further, certain delegates proposed that the term ‘investment’ should be defined in detail in order to provide more certainty as to the jurisdiction of ICSID. Broches even characterised the meeting as ‘more constructive and more helpful and encouraging than [he] had dared to expect.’16

Besides this, the first of four regional rounds before the conclusion of the ICSID Convention were also held in Addis Ababa. The Ethiopian delegate expressed his approval towards the establishment of ICSID and acknowledged its importance as a different forum for the settlement of disputes other than Ethiopian courts, which investors ‘regard . . . as the instrument of the state’.17 He further added that every government should grant the same protection to its foreign investors as it does to its own nationals, thus improving the relationship between states and foreign investors.18 The participants from the African states also supported that the jurisdiction of ICSID should be expanded to other kinds of disputes, besides the indemnification of expropriation.19 Lastly, the Nigerian delegate even suggested that the provision relating to the enforcement of ICSID awards should be strengthened.20

Following these first steps, 45 countries in Africa became members of the ICSID Convention and proceeded to the conclusion of several bilateral investment treaties (BITs) with various countries around the world.21 At present, more than 960 BITs involve an African state, with Egypt, Morocco and Tunisia taking the lead.22 The first intra-African BIT was signed between Egypt and Somalia in 1982.23

Regarding the enforcement of awards, it should be mentioned that the majority of African states, ie, 36 out of the 54 African state members of the ICSID Convention, have ratified the New York Convention. This is a particularly important key for the enforcement of arbitral awards outside the ICSID framework.24

Following from the above, Africa was in favour of an international regime for investment arbitration from the very beginning in light of their need to attract foreign investments. African states engaged actively in the negotiations prior to the conclusion of the ICSID Convention and began to conclude BITs with other capital-exporting states in order to attract foreign direct investments so as to support their economy.

The new generation of African BITs and reformed regional agreements

Since the 1960s, the African economy has progressed and some states have transformed their economies from capital importing to capital exporting ones. This trend towards an increase in South-to-South foreign direct investment,25 coupled with the general scepticism expressed towards investment arbitration in recent years and concerns regarding high costs surrounding the investment arbitration proceedings,26 has resulted in the creation of a new generation of BITs.

At the outset, it should be noted that African states are reluctant to ratify new BITs, as only 25 have entered into force in the last five years.27 Certain recent indicative examples of two new BITs that have still not entered into force are the Cameroon-Canada BIT, as well as the Canada-Nigeria BIT. Their main aim is to strike a better balance between the interests of the State and of the investors. The promotion of sustainable development also lies at the core of these treaties and is highlighted in their preamble.28 In the same vein, there is an explicit condition that states should not compromise health, safety or environmental standards to attract foreign investments.29

Another indicative example of the new generation of intra-African BIT is the Morocco-Nigeria BIT. 30 One of its specificities relates to the definition of investment, which includes the four Salini criteria followed by a list of assets that qualify as investments and a list of assets which should be excluded from the definition of investment, such as portfolio investments, claims to money and other debt instruments.31

Another distinguishing factor pertains to the existence of certain obligations imposed upon not only the state, as it was the case in older BITs, but also upon the foreign investors. It is stipulated that investors ‘should strive to make the maximum feasible contributions to the sustainable development of the host [s]tate and its local community’.32 In particular, investors should perform an environmental impact assessment in line with the precautionary principle,33 and they should maintain specific environmental standards during the post-establishment period.34 Furthermore, it is provided that investments shall meet the national or international standards of corporate governance35 and refrain from any corruption practice, which would amount to a breach of the domestic law of the host state.36 As far as the substantive provisions are concerned, the Morocco-Nigeria BIT provides for all the main standards generally included in many BITs. It defines in detail fair and equitable treatment, as ‘the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principal legal systems of a Party’, and full protection and security as ‘the level of police protection required under customary international law.’37 This broad approach can leave space for interpretation to arbitration panels and reveals a positive element to support control of investment projects.

Beside the new generation of BITs, the evolution of investment arbitration is also evident in certain reformed regional agreements in which most of African states are members. A comparison between the Protocol on Finance and Investment adopted in 2006 by the Southern African Development Community (SADC) and the SADC Model BIT established in 2012 reveals a shift of perspective concerning investment arbitration. Specifically, the 2006 SADC protocol provides for recourse to investment arbitration upon a prior exhaustion of local remedies.38 It also guarantees protection to the investors from expropriation and nationalisation, accords fair and equitable treatment and includes a clause relating to the most-favoured nation treatment.

However, the 2012 SADC Model BIT,39 a non-binding instrument that constitutes an effort to harmonise investment policies in African states, presents substantial differences. Notably, it recommends the member states not to include investment arbitration as a means for resolving disputes, even though the member states may decide to do otherwise.40 Additionally, the SADC Model BIT suggests an enterprise-based definition of the investment as being more compatible with the objective of sustainable development. It also excludes the provisions relating to the most-favoured nation clause, recommends against the inclusion of the provision relating to fair and equitable treatment and argues in favour of the inclusion of the standard of fair administrative treatment, which is limited to the denial of justice claims. It substantiates this option by arguing that this is an ‘alternative formulation that would be a new approach to addressing the key issues in a more restricted and careful manner than the [fair and equitable treatment] text’.41

Assuming that states choose to include the fair and equitable treatment standard, the Model BIT requires the existence of a higher threshold, relating to the demonstration of a specific act by the state ‘in bad faith, a wilful neglect of duty or an insufficiency so far short of international standards that every reasonable and impartial person would readily recognise insufficiency.’42

Some SADC member states have signed BITs according to the suggested provisions included in the SADC Model BIT.43 However, other SADC member states have chosen to deviate from its provisions when drafting their new BITs. The Japan-Mozambique BIT and the Canada-Tanzania BIT are fine examples of the last typology, since they both include the option of investment arbitration, as well as provisions relating to the most-favoured nation treatment.44

‘Africanisation’ of investment arbitration

Attempts to ‘Africanise’ investment arbitration are on the rise. The movement towards regionalisation and continentalisation of international arbitration is dominant and aims to reverse the trend of exporting African cases overseas.

Throughout the history of investment arbitration, African arbitrators have been underrepresented even in cases involving an African state. According to the ICSID database, out of 613 cases registered under the ICSID Convention and the Additional Facility Rules as of 2017, 22 per cent involved an African state party.45 However, African arbitrators, conciliators and ad hoc committee members represented only 4 per cent,46 which accounted for a total of 90 individuals, compared to 979 Western Europeans and 437 North Americans including Mexicans, appointed by both ICSID and the parties.47 This trend is not going to be different in the near future. However, the changing political landscape of investment arbitration in Africa and the expressed will of certain African states to improve the training of professionals in arbitration law could, in the medium to long term, strengthen the demand for home-grown arbitrators.

Africa is reshaping itself to be one of the areas of international arbitration. Although such development is not equally distributed all over the continent, significant legal and institutional reforms have been made at the national, regional and continental levels.

At the national level, Mauritius is probably the leading country in promoting itself as the safe heaven for arbitration. In 2008, it passed a new International Arbitration Act based on the UNCITRAL Model Law with a section dedicated to investment arbitration. In 2010, the Permanent Court of Arbitration opened its regional branch in the country, and a year later the joint Mauritius-LCIA arbitration centre (LCIAC-MIAC) was established. Mauritius was also the first country in the world to have ratified the 2014 UN Convention on Transparency in Treaty-based Investor-State Arbitration and active projects are also moving forward to strengthen the arbitration center with the Chamber of Commerce. This is all the more logical regarding the influence of Mauritius as an investment place for many projects all over Africa, from both francophone and anglophone countries.

Other African states such as Nigeria, Ghana and Rwanda have modernised their arbitration law to become a better seat and venue for international arbitration. Rwanda, for instance, has even established the Kigali International Arbitration Centre (KIAC) that offers arbitration services for both commercial and investment disputes.48 Nigeria also supports various initiatives in arbitration, as well as the establishment of the Lagos Court of Arbitration, a centre for arbitration and alternative dispute resolution that was officially launched in 2012.49

At the regional level, the regime of African investment arbitration is being shaped by regional and inter-regional agreements. The Common Market for Eastern and Southern Africa (COMESA) adopted the reformed Investment Agreement for the COMESA Common Investment Area in 2007 in an attempt to attract investment from within and outside the region. The agreement has not yet come into force, and its full operation would enable an investor either to bring an investment dispute before the court of the host state, the COMESA Court of Justice or pursue arbitration under ICSID or UNCITRAL arbitration rules.50

The OHADA region is currently expanding its scope to cover investment arbitration. OHADA is comprised of 17 African states, predominantly French-speaking, and has already put into action the Uniform Arbitration Act regarding commercial arbitration. Recently, OHADA has reformed the act to also include investment arbitration.51 In addition, OHADA has also revised its arbitration rules that empower the Common Court of Justice and Arbitration (CCJA) to administer arbitrations based on an investment instrument, investment code or an investment treaty.52 This revision aims to respond to existing intra-African BITs that have already chosen the CCJA as an option for an investor to bring investment arbitration against the host state.53

The East African Community (EAC) does not have a regional investment agreement. Yet it adopted the Model Investment Code in 2006 that provides investors access to ICSID arbitration. Although this instrument is non-binding, it indicates the EAC’s favourable initiative towards international arbitration for investment disputes.

Departure from investment arbitration is striking, however, in the Economic Community of West African States (ECOWAS). In 2008, it adopted the Common Investment Rules for the Community that excludes international arbitration from its investor-state dispute settlement, since the claims can only be submitted to either a national court or a relevant competent national authority.54

The approaches towards investor-state arbitration undertaken by these African economic communities could have potential impacts on a continental framework on investments in the future. An inter-regional commitment was made in 2015 when the COMESA, the EAC and the SADC established the Tripartite Free Trade Area (TFTA) as a single market for half of African nations. Although the TFTA is not an investment agreement, it could pave the way for a future inter-regional investment treaty.

At the continental level, an agreement for the Continental Free Trade Area (CFTA) is being negotiated for free movements of goods, services, business, persons and investments across Africa. The CFTA has been so far the product of six-year negotiations undertaken by African states under the umbrella of the African Union. If successfully established, the CFTA will turn the whole African continent into one single market of 1 billion people with a combined GDP of over US$3.4 trillion. To date, the CFTA has not yet been finalised, and it is expected that further negotiations will include a chapter on investments55 that would enable Africa to achieve its ambition towards a continental investment legal framework.

Lastly, Africa is currently drafting the Pan-African Investment Code (PAIC) that would be used as a gap-filler of the investment chapter of the aforementioned CFTA. The 2006 draft of the PAIC provides that access to arbitration for investor-state disputes is conditioned upon the applicable law of the host state and the exhaustion of local remedies. In addition, arbitration shall be governed by the UNCITRAL arbitration rules and may be conducted by an African arbitration centre.56 The draft seems to promote Africa as the centre for investment disputes and thus reverse the norm of exporting African cases abroad.

The South African paradigm

The most radical approach towards investment arbitration has been taken by South Africa. In May 2004, the government introduced the Mineral and Petroleum Resources Development Act, which stipulated that mining companies should apply for a licence. Based on this legislation, investors from Italy and Luxembourg filed arbitration requests before the ICSID against South Africa requesting compensation due to an alleged expropriation of their mineral rights by the state.57 But even before the settlement of the first case, South Africa became concerned with the effects of investment arbitration.58 The first step taken in 2008 was to terminate the negotiations for the conclusion of new investment agreements, not to renew the already existing ones, whose expiration date was approaching, and proceed to the termination of its BITs with several European countries, such as Austria, Belgium, France, Germany, Spain and the UK.59 The EU did not remain silent on the matter. It criticised the termination of the BITs by emphasising that EU countries are the most significant trade and investment partners of South Africa.60

Adding to that, South Africa introduced in 2015 a new bill relating to the Promotion and Protection of Investment (PPI Bill). The most important feature of the PPI Bill is the lack of a provision relating to investment arbitration recourse for foreign investors. Rather, it is stated that investors can have the choice between mediation, initiation of proceedings before the domestic courts, or arbitration pursuant to South Africa’s Arbitration Act of 1965.61 As far as the substantive protection is concerned, the PPI Bill does not include any provision regarding the fair and equitable treatment standard, which is in fact substituted by the fair administrative treatment standard,62 encompassing solely the denial of justice claims, as inspired by the SADC Model BIT. Further, the compensation standard is limited significantly, since the PPI Bill does not guarantee the fair market value of the investment, but simply provides that compensation should be just and equitable. The introduction of the PPI Bill has created a lot of concerns, since there will be two-speed investors – on the one hand the investors that have invested prior to the PPI Bill and that could still pursue a claim benefiting from the sunset clauses included in the recently terminated BITs, and on the other hand the investors that have invested after 2015 and that will be governed by the new regime.63

However, this reluctance towards investment arbitration is not reflected towards South Africa’s BITs with other African states. In particular, South Africa has terminated neither its BITs with other African states nor the regional investment agreements that the country is part of.64 On the contrary, it has signed more investment agreements with other African states although they have not yet entered into force.65

The Sino-Africa BITs

The presence of the world’s biggest economy in Africa has transformed the landscape of investment arbitration in the Sino-African economic relation. China’s ‘going global’ policy has resulted in an increase of Chinese investments across Africa, especially in natural resources, in order to fuel China’s economy. In just over a decade, China’s investments on the continent leapfrogged by 350 folds, from under US$100 million in 200366 to around US$35 billion in 2015, making China the fourth largest investor in Africa.67

China’s investment in Africa is unlikely to slow down. In 2015, the Chinese President Xi Jinping unveiled US$60 billion in development assistance and investment in Africa during the 2015 Forum on China-Africa Cooperation held in Johannesburg.68 This package undoubtedly aimed to deepen the Asian giant’s economic influence and pave ways for its future investment on the continent.

From a capital importing country to a foreign direct investment exporter, China needs international legal framework to protect its investors overseas. To date, the UNCTAD’s database has registered 35 BITs signed between China and African states, and amongst which 22 have already entered into force.69

Ghana was the first African nation to have signed a BIT with China in 1989. The China-Ghana BIT limits access to arbitration to only claims regarding the quantum of compensation for expropriation.70 The lawfulness of expropriation and other disputes are to be decided by the court of the host state.71 The BIT also entrusts the power to appoint the arbitrators with the chairman of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), and the tribunal may conduct its proceedings according to the Rules of Procedure of the SCC or the ICSID arbitration rules.72 The restrictive scope of investor-state arbitration that limits arbitration to only compensation for expropriation was the result of the fact that China was still a capital importing state and needed to retain as much power as possible to regulate foreign investments in its territory.

Recourse to investor-state arbitration was not expanded until the early 2000s. For example, the Ethiopia-China BIT in 1998 still stipulates that national courts have a broad jurisdiction over all disputes, and arbitration is available only for disputes regarding the amount of compensation for expropriation.73

The 2002 China-Ivory Coast BIT does not limit the arbitration scope to only expropriation but expands to all disputes arising out of the BIT. However, recourse to investment arbitration is still procedurally restricted because it is conditioned upon the prior exhaustion of local administrative remedies.74 The most unrestricted access to arbitration in terms of scope and procedure may be seen in the 2004 China-Tunisia BIT that provides an investor with the option to choose either a court or arbitration for resolving any dispute arising out of the BIT without any requirement of exhaustion of local remedies.75 As China’s investments overseas increase, it has to redesign its BIT model in a manner that is more favourable to its investors by expanding the scope of their protection through investment arbitration. In this regard, China’s capital outflows to Africa have transformed the Asian giant to be a rule maker in many BITs with African nations.76

Interestingly, the Sino-African economic relations have altered investor-state arbitration in Africa over the past decades from a Chinese model that provides very limited access to arbitration to an international model that removes restriction to arbitration. This development is unlikely to be reversed since China continues to widen its economic share in Africa.

Conclusion

There is undoubtedly a shift of perspectives of African states concerning investment arbitration in terms of procedural and substantive protection. Indeed, Africa’s experience in the international dispute settlement has resulted in modifications of the traditional models of BITs and the introduction of a new generation of BITs with an aim to find a better balance between the interests of the state and the investors.

The move towards ‘Africanisation’ of investment disputes is on the rise through national, regional and continental efforts to bring African cases to be adjudicated inside Africa. The most radical approach is the one adopted by South Africa, a stand-alone case, since it has denounced several of its BITs and designed its own national regime for investment disputes.

However, this approach is different when it comes to the Sino-African relation. China and African states have eliminated restrictions towards international investment arbitration in order to strengthen the protection accorded to Chinese investors.

To date, different types of investment arbitration frameworks coexist on the continent, and it is difficult to define whether an evolved scheme based on the existing commonly shared framework will prevail or if, more surprisingly, more protective approaches will be adopted. As most African countries are still capital importers, it is doubtful, as many investors will refrain from making an investment if they do not feel sufficiently protected, notably for cash consuming projects in infrastructures or natural resources. It clearly remains to be seen whether the continent will be able to find a uniform approach towards investment arbitration for both extra- and intra-Africa BITs.

Notes

1 UNCTAD, World Investment Report, (2017), p. 44.

2 Ibid, p. 48.

3 Ibid, p. 44.

4 Ibid, pp. 45-46.

5 The African Caribbean Pacific (ACP)-EU Partnership Agreement, (The Cotonou Agreement), (signed 2000, entered into force 2003).

6 ICSID, Caseload Statistics on Africa, (May 2017), p. 7.

7 Ibid, p. 13.

8 Ibid, p. 7.

9 Ibid, p. 12; see for example, Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic of Kenya (ICSID Case No. ARB/15/29); Total E&P Uganda BV v Republic of Uganda (ICSID Case No. ARB/15/11); BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v Republic of Guinea (ICSID Case No. ARB/15/46); Standard Chartered Bank (Limited) Hong Kong v United Republic of Tanzania (ICSID Case No. ARB/15/41).

10 New OHADA Uniform Arbitration Act, to be entered into force on 15 March 2018. The New OHADA Uniform Arbitration Act extends its scope to cover investment arbitration in the OHADA region, increases the autonomy of the arbitral tribunal, and provides a mechanism for accelerating the arbitration proceedings and strengthening the enforcement of arbitral awards. (Benoit Le Bars, ‘OHADA Member States: A New Move Forward to Promote Arbitration and Mediation’, International Arbitration Law Blog, http://internationalarbitrationlaw.com/blog/ohada-member-states-a-new-move-forward-to-promote-arbitration-and-mediation/ (February, 2018)).

11 ICSID, History of the ICSID Convention: Documents Concerning the Origin and the Formulation of the Convention, vol. II-1, Washington, (1968), pp. 239-240; see also cf. W Kidane supporting that “the only reason that the African [S]tates accepted ICSID is because they thought that they had to do so in order to attract private foreign investment to develop their ailing post-colonial economies”, (W. Kidane, ‘The China-Africa Factor in the Contemporary ICSID Legitimacy Debate’, 35 U. Penn J.Int’l L. (2014), p. 559, at pp. 585-586).

12 Holiday Inns SA and others v Morocco, ICSID Case No. ARB/72/1.

13 ICSID, History of the ICSID Convention, (n 11), pp. 295-296.

14 Ibid, p. 296.

15 Ibid.

16 Ibid.

17 Ibid, p. 243.

18 Ibid.

19 Ibid, p. 259.

20 Ibid, p. 244.

21 K Daele, ‘Africa’s track record in ICSID proceedings’, Kluwer Arbitration Blog, (May 2012).

22 E Lindsey and L D Burnett, ‘International Investment in Africa: Year in Review 2016’, Bryan Cave LLP, (2016), p. 6.

23 United Nations Economic Commission for Africa, ‘Investment Policies and Bilateral Investment Treaties in Africa: Implications for Regional Integration’, (February 2016), p. 20.

24 M Ostrove, B Sanderson and A L Veronelli, ‘Developments in African Arbitration’, GAR, (April 2017).

25 C N Brower and M P Daly, ‘A study of foreign investment law in Africa: Opportunity awaits’, in Andrea Menaker (ed), International Arbitration and the Rule of Law: Contribution and Conformity, ICCA Congress Series, 19, p. 503 at pp. 527-528.

26 A Notaras and J Bartle, ‘Arbitration in Africa; High Stakes and big claims in resolving disputes’, Legal Business, (July-August 2015), p. 104, at p. 108.

27 T Gazzini, ‘Nigeria and Morocco move towards a “new generation” of Bilateral Investment Treaties’, EJIL, (May 2017), available at: https://www.ejiltalk.org/nigeria-and-morocco-move-towards-a-new-generation-of-bilateral-investment-treaties/.

28 Canada-Cameroon BIT (signed 2014, not yet in force), Preamble p. 2; Canada-Nigeria BIT (signed 2014, not yet in force) p. 2.

29 Canada-Cameroon BIT, article 15 (1); Canada-Nigeria BIT, article 15 (1).

30 Morocco-Nigeria BIT (signed in 2016, not yet in force).

31 Ibid, article 1 (3).

32 Ibid, article 24 (1).

33 Ibid, article 14 (3).

34 Ibid, article 18 (1).

35 Ibid, article 19.

36 Ibid, article 17 (2) - (5).

37 Ibid, article 7 (2) (a).

38 Ibid, article 28 (1).

39 SADC Model Bilateral Investment Treaty Template with Commentary (2012).

40 Ibid, article 29.

41 Ibid, Commentary to article 5, Option 2, p. 23.

42 SADC Model BIT, article 5 (2), Option 1.

43 An indicative example is the BITs concluded between Brazil and certain African States, such as Mozambique, Angola and Malawi. (Agreement for Cooperation and Facilitation of Investments between the Government of the Federative Republic of Brazil and the Government of the Republic of Angola [signed 1 April 2015, not yet in force]; Investment Cooperation and Facilitation Agreement between the Federative Republic of Brazil and the Republic of Malawi [signed 25 June 2015, not yet in force]; Agreement for Cooperation and Facilitation of Investments between the Government of the Federative Republic of Brazil and the Government of the Republic of Mozambique [signed 30 March 2015, not yet in force]).

44 Japan-Mozambique BIT (signed 1 June 2013, entered into force 29 August 2014), article 17 (4); Canada-United Republic of Tanzania BIT (signed 17 May 2013, entered into force 9 December 2014), article 23 (1).

45 ICSID, Caseload Statistics on Africa, (2017), p. 7.

46 Ibid, p. 29.

47 Ibid, p. 28.

48 See, www.kiac.org.rw.

49 See, www.lca.org.ng.

50 Investment Agreement for the COMESA Common Investment Area, article 28 (1).

51 New OHADA Uniform Arbitration Act (to be entered into force on 15 March 2018), article 3.

52 Revised Rules of Arbitration of the Common Court of Justice and Arbitration, to be entered into force on 15 March 2018, article 2 (1).

53 See for example, Guinea-Chad BIT (signed 2004, not yet in force) article 9 (3) (ii); Guinea-Burkina Faso BIT (signed March 2003, entered into force August 2004), article 9 (2) (b); Benin-Chad BIT (signed May 2001, not yet in force), article 10 (2) (b).

54 ECOWAS’ Common Investment Rules for the Community, article 33 (6).

56 Pan-African Investment Code, Draft of December 2016, article 42 (1).

57 The two known cases against the country initiated after the introduction of the PPI Bill is Piero Foresti, Laura de Carli & Others v. The Republic of South Africa, ICSID Case No. ARB(AF)/07/01 and an unpublished UNCITRAL arbitration case between a Swiss investor and South Africa; see also D.M. Ziyaeva and M. Jonker, ‘Legal Trends and Developments of International Arbitration in South Africa’, 13 TDM 4, (October 2016).

58 N Peacock and H Ambrose, ‘South Africa terminates its bilateral investment treaty with Spain: Second BIT terminated, as part of South Africa’s planned review of its investment treaties’, Arbitration Notes (August 2013).

59 M M Mbengue, ‘Special Issue: Africa and the Reform of the International Investment Regime’, Journal of World Investment and Trade 18, (2017), p. 371 at p. 375.

60 M Weiniger, G Satryani and H Ambrose, ‘Dawn of a new era of investment protection in South Africa – draft investment law to replace protections offered under investment treaties published for public comment’, Arbitration Notes, (November, 2013); see also, M. Allix, ‘EU Steps Up to Have Treaties with SA Retained’, Business Day Live (November, 2013), available at www.bdlive.co.za/business/trade/2013/11/12/eu-steps-up-fight-to-have-treaties-with-sa-retained.

61 PPI Bill, section 11 (1), section 11 (4) and section 11 (5) respectively.

62 Ibid, section 6 (1).

63 Weininger, Satryani and Ambrose (n 60).

64 See indicatively, South Africa-Mauritius BIT (signed February 1998, entered into force October 1998), South Africa-Nigeria BIT (signed April 2000, entered into force July 2005) and the SADC Protocol.

65 See indicatively investment treaties between South Africa and Algeria, Congo, Egypt, Ethiopia, Equatorial Guinea, Gabon, Ghana, Libya, Senegal and United Republic of Tanzania.

67 UNCTAD, World Investment Report, (2017), p. 44.

69 See, http://investmentpolicyhub.unctad.org/IIA/CountryBits/42.

70 China-Ghana BIT (signed October 1989, entered into force November 1990), article 10 (1).

71 Ibid, article 4 (3).

72 Ibid, article 10 (3)-10 (4).

73 Ethiopia-China BIT (signed May 1998, entered into force May 2000), article 9 (3).

74 China-Ivory Coast BIT (signed September 2002, not yet in force), article 9 (3).

75 China-Tunisia BIT (signed June 2004, entered into force 2006), article 9 (2); see also M. de Brugiere and C. Morgan, ‘Chinese Investment in Sub-Saharan Africa: Is it Changing the Face of International Arbitration in the Region?’, Special Issue on Africa, 13 TDM 4 (2016), p. 14.

76 Ibid.