Investment Treaty Arbitration

Investment Treaty Arbitration: Cameroon

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Cameroon

 

BIT Contracting Party

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

BLEU (Belgium-Luxembourg Economic Union)
(01/11/1981)

Yes

Yes

No

Yes

No

2 months

No

Yes

Canada
(not in force)

Yes

Yes

Yes

Yes

No

90 days

No

Yes

China
(24/07/2014)

-

-

-

-

-

-

-

-

Egypt
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Germany
(21/11/1963)

No

Yes

Yes

Yes

No

No (No ISDS)

No

Yes

Guinea
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Italy
(04/01/2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Mali
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mauritania
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mauritius
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Morocco
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Netherlands
(07/05/1966)

Yes

Yes

No

Yes

No

No

No

No

Romania
(24/09/1981)

No

Yes

No

Yes

Yes

No

Yes

Yes

Switzerland
(06/04/1964)

Yes

Yes

No

Yes

No

6 months

No

Yes

Turkey
(not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Kingdom
(07/06/1985)

Yes

Yes

Yes

Yes

Yes

2 months

No

Yes

United States of America
(06/04/1989)

Yes

Yes

Yes

Yes

Yes

2 months

No

Yes

 

 

FTAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

Interim Agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part (EU-Cameroon Economic Partnership Agreement)
(not in force)

No

No

No

No

No

Yes

No

Yes

Cotonou Agreement
(1 April 2003)

Yes (agreement to agree)

Yes (agreement to agree)

Yes (agreement to agree)

Yes (agreement to agree)

No

Yes (agreement to agree)

No

Yes (agreement to agree)

Treaty Establishing the African Economic Community
(12 May 1994)

No

No

No

Yes

No

12 months

Court of Justice as defined in the Treaty

No

Treaty Establishing the Economic Community of Central African States, ECCAS Treaty
(18 December 1984)

No

No

No

Yes

No

Yes

(not specified)

Court of Justice as defined in the Treaty

No

Organisation of Investment (OIC) Agreement
(23 September 1986)

No

Yes

Yes

Yes

No

9 months

Yes

Yes

CEMAC Convention on Liberalization
(22 December 1972)

-

-

-

-

-

-

-

-

Common Convention on Investments in the States of the Customs and Economic Union of Central Africa (CEMAC Investment)
(1 April 1966)

Yes

No

No

Yes

No

No

No

Yes

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Cameroon

Issue

Distinguishing features in relation to the definition of ‘investor’

Citizenship / nationality for individual investors

For the majority of Cameroonian BITs, a natural person qualifies as an investor when the individual has the nationality or citizenship of a contracting state, and makes an investment in accordance with the contracting state’s laws.

The Canada BIT specifies, “for greater certainty”, that “an investor seeks to make an investment only when the investor has taken concrete steps necessary to make the investment”. It also indicates that natural persons having the citizenship of one Party despite being permanent residents of the other Party must be deemed to be exclusively nationals of the Party of their citizenship.

Restrictions of protection

Under the Romania BIT, only companies can qualify as claimants as this treaty excludes natural persons and only contemplates as investors "des unités économiques".

The UK BIT rather unhelpfully limits the definition of companies to “corporations, firms or associations” without providing further qualifications.

Wide definition of juridical persons

The Italy BIT specifies that juridical persons may include public entities, foundations, associations, partnerships etc. It adds that these juridical persons qualify as investors irrespective of their liability being limited or not.

Some treaties adopt a rather broad definition of companies and are quite specific in listing which entities qualify for protection. These include for example corporations, companies, associations, other organizations, any political subdivision whether or not organized for pecuniary gain, or whether privately or governmentally owned (see the Italy BIT); they also include trusts, partnerships, sole proprietorships, joint ventures, etc. and branches of any such entity (see the Canada BIT). The USA BIT provides for a similarly broad range of investors and it includes an autonomous provision confirming that the treaty applies to political subdivisions of the contracting parties.

Seat of investor / place of business

All Cameroonian treaties provide that a legal person incorporated or duly organised according to the laws of a contracting state qualifies as an investor, a large majority of them also require that such entities have their "registered office" within the territory of a contracting state.

The Turkey BIT is the only treaty which prescribes that legal persons must have “substantial business activities” in the territory of the contracting state in which they are incorporated in order to qualify for protection.

Control by national of a contracting state

The Italy and Morocco BITs expressly extend protection to juridical persons that are incorporated in a third state but controlled directly (Morocco) or indirectly (Italy) by nationals of either contracting states.

The USA BIT defines ownership and control as being direct or indirect, including ownership or control exercised through subsidiaries or affiliates, wherever located. It further indicates, however, that any party may decide to deny the benefit of the treaty to any of its own companies or to a company of the other state if nationals of a third country own or control such company. In case a party believes protection should not be extended in such circumstances, it must consult with the other to seek an agreement.

Non-profit investors

The Canada and Italy BITs include not for profit juridical persons in their definitions of an enterprise.

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Cameroon

Issue

Distinguishing features in relation to the concept of ‘investment’

Eligible assets

In general, the Cameroonian BITs define investment to include "any kind of asset" and contain a non-exhaustive list of assets (see the Belgium, Turkey and UK BITs), which generally include (a) movable and immovable property; (b) shares and stocks; (c) intellectual property rights; (d) claims to money. The UK BIT extends the definition to include business concessions while both the Belgium and Turkey BITs specify that reinvested assets can qualify as an investment.

The USA and Canada BITs follow a different approach. The Canada BIT gives/provides two exhaustive lists of what is and is not an investment, while the USA treaty gives its definitions in one exhaustive list. For example the Canada BIT includes in its investment an enterprise, share or bond but excludes a claim to money that arises solely from an extension of credit or any other claim to money.

Indirect control of assets

The Canada and USA BITs expressly refer to indirect control of assets. The Canada BIT expressly includes an investment owned or controlled directly or indirectly by an investor of that Party. The same goes for the USA BIT, in which "investment" means every kind of asset in the territory of either Party, owned or controlled directly or indirectly.

Commencement of treaty protection

While the Turkey, Italy, Morocco, Guinea, Mali, Mauritania, Mauritius and Egypt BITs protect investments made before the agreement went into force but not disputes which arose before its entry into force, the Belgium BIT adopts a broader formula as it protects "all investments, present and future".

The Canada, Romania and USA BITs cover investments made prior to the treaty entering into force but are silent on the applicability of the treaty to disputes arising before its entry into force.

Some other treaties are silent on the commencement of treaty protection. These include the UK BIT.

Admission/approval of an investment

Most BITs expressly provide that investments must conform to local law. These include the Guinea, Italy, Mauritius, Morocco, Mauritania and Canada BITs. Other treaties do not mention conformity with local law in relation to the investment, yet they provide indirect reference to this obligation. These BITs include UK, Belgium and Romania.

The Belgium BIT goes one step further and indicates that each party must authorise the conclusion and execution of licensing contracts and of commercial, administrative or technical assistance agreements.

Special formalities

The USA BIT indicates that the parties are free to prescribe special formalities "in connection with the establishment of investments". More vaguely, it goes on to add that such formalities however "shall not impair the substance of any of the rights set forth in this Treaty", making unclear the question of the consequences of lack of compliance with additional formalities imposed by the host state while registering the investment.

Change in form

Most Cameroon BITs clarify that changes in the legal form of an investment do not alter its protected status. These include Belgium, Egypt, Guinea, Mali, Mauritania, Mauritius, Morocco, Turkey and Italy.

Other treaties do not make any mention of a change in the form of the investment. These include the Netherlands, Romania, Switzerland, UK and US BITs. As such, it can be argued that these treaties do not allow for any change in the nature of the investment.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Cameroon

Issue

Distinguishing features of the fair and equitable treatment standard

Formulation of FET standard

Most Cameroon BITs contain provisions for fair and equitable treatment. The Dutch BIT includes a varied formula as it protects investors on the basis of "fair and non-discriminatory treatment". This formulation seems to be due to the treaty being relatively succinct and could be seen as inclusive of both the FET standard and the protection against discriminatory measures.

While the Canada BIT does not expressly refer to FET as an autonomous standard, but includes it in the investors’ protections as part of the minimum standard of treatment, the Romania BIT does not include any FET protection.

Supplementary protection against unreasonable and discriminatory measures

Most BITs have provisions prohibiting discriminatory measures which impair the "management, maintenance, use, enjoyment, extension, or disposal" of an investment. These include the Turkey, UK and USA BITs. The Belgium BIT also prohibits discriminatory measures with the added exception of measures necessary for the maintenance of public policy.

 

Additional coverage for reinvestments and returns

 

The Guinea, Egypt, Mali, Mauritania, Mauritius and Morocco BITs provide for the same level of coverage applicable to reinvestments or alternations to the initial investment as the coverage accorded to the initial investment.

The Morocco BIT extends FET and more general protection coverage to returns on the initial investment.

Customary international law

Some BITs require protection in accordance with the international law standard. For example, the USA BIT provides that "The treatment, protection and security of investment shall be in accordance with applicable national laws and international law." Treaties including similar language include Turkey, Canada and Belgium.

While both the Turkey and Canada BITs provide that protection is in accordance with the international law minimum standard, the Canada BIT further adds that FET does not require treatment in addition to or beyond what is required by the customary international law minimum standard of treatment of aliens.

Formulations differ slightly and for example the Belgium BIT indicates that FET coverage must be no less favourable than that “recognized by international law”.

In other treaties such as Germany or Guinea the FET standard is not qualified.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Cameroon

Issue

Procedural Rights

Selection of dispute resolution fora

The vast majority of Cameroon's treaties provide investors with a choice between various dispute resolution options – typically ICSID arbitration, local courts, ICC arbitration and ad hoc arbitration under the UNCITRAL Rules.

Older treaties are unclear as to the applicable dispute resolution mechanism or forum. For example, the Germany BIT provides for disputes to be resolved by the governments of the respective contracting states and if the dispute cannot be settled that way, it can be brought before “an arbitral tribunal” chosen by one of the parties.

Fork in the road

In some treaties where the investor has a choice between dispute resolution methods, the investor's choice is expressly binding and final. This is the case for example for the Turkey BIT.

Waiver of local remedies

Under the Belgium BIT, each state gives its irrevocable advance consent to the submission of investment disputes to ICSID. Consent by the host state to ICSID arbitration in this treaty implies a waiver of the requirement that local – administrative and judicial – remedies should have been exhausted.

Applicable law

While some of Cameroon's BITs, such as the one with Belgium, do not contemplate any applicable law or rules to be relied upon by the arbitral tribunal, other treaties are vague and simply state, such as the Netherlands BIT, that tribunals must rule "on the basis of the law". The Canada BIT includes in the applicable law provision the agreement itself and rules of international law.

Some of Cameroon’s treaties contain more descriptive indications and mandate the application of the domestic laws of the territory where the investment was made, but also of conflict of laws rules, the provisions of the treaty itself, any other agreement entered into in relation to the investment and the principles of international law (eg. Egypt, Guinea, Mali, Mauritania, Mauritius, Morocco and Turkey BITs).

Cooling-off

All Cameroon treaties involve a cooling-off period. Most allow for parties to find an amicable solution within 6 months (Belgium, Egypt, Guinea, Italy, Mali, Mauritania, Mauritius, Morocco, USA, Netherlands, Switzerland and Turkey); one provides for a 3-month period (UK) and one provides for a 2-month period (Canada).

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Cameroon

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

Scope of MFN treatment

All BITs include broad MFN clauses protecting investors. Countries such as Turkey, Canada and UK further qualify this protection. For example, Turkey extends this protection to the “management, maintenance, use, enjoyment extension, or disposal of the investment”.

Similarly, the Canada BIT extends the protection to the “establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment.” The USA BIT on the other hand extends its protection to associated activities related to an investment and it provides an exhaustive, detailed list of related activities. It further expressly includes a separate MFN provision granting access to courts, tribunals and agencies on terms and conditions no less favourable than what is accorded to its own nationals.

Exceptions to MFN or national treatment coverage

Some Cameroonian BITs expressly provide that the provision of “most favoured nation” does not extend to the benefits of membership of a customs union, monetary union, free trade area or other similar union (eg. Egypt, Guinea, Italy, Mali, Mauritania, Romania and Mauritius BITs), nor to taxation measures (eg. Morocco BIT). The Turkey BIT provides that national treatment does not apply in relation to the acquisition of land, real estate and related rights in rem.

The UK also provides for a clause excluding the benefits of taxation and membership of customs unions. The Canada BIT lists exceptions to the MFT clause for tax and “establishing, strengthening or expanding a free trade area or customs Union” and for aviation, fisheries and maritime matters, including salvage. The USA BIT however reserves the right to maintain limited exceptions for tax and activities that are listed in an annex. Examples include “Air transportation; ocean and coastal shipping; banking; insurance; government procurement, government insurance and loan programs; energy and power production”.

Other instruments

The Belgium BIT indicates that nothing in the treaty prevents investors from relying on more favourable provisions equally applicable to the investment, should there be concurring sources of protection, such as the treaty, an international agreement or national regulations.

Non-conforming measures

The Canada BIT indicates that its MFN and national treatment provisions (along with other protections) do not apply inter alia to any existing non-conforming measure that is maintained by a Contracting Party or to any measure maintained or adopted after the entry into force of the treaty.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Cameroon

Issue

Distinguishing features of the ‘protection and security’ standard

Scope

Most BITs including UK, Turkey, USA and Canada contain an obligation to provide "full protection and security" to investors. The formulation of the standard however varies in some of the treaties. For example, the Belgium BIT indicates that the "investments shall be safeguarded and protected at all times and shall not be subject to any unreasonable or discriminatory measure…". Whether or not different formulations equate to varying levels of protection is open to debate. Other treaties, including the Netherlands, Romania and Belgium, do not include any language suggesting that the host state commits to protection of the investment.

 No direct protection

While the Belgium BIT does not contain an express protection and security provision, it mentions that protection is guaranteed through the MFN clause.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Cameroon

Issue

Distinguishing features of any ‘umbrella clause’

Scope

Only four BITs contain an umbrella clause. These are Romania, Italy, UK and US. They generally include a conventional clause, such as the UK and the US BITs.

Different types of umbrella clause-type provisions

While the UK BIT indicates that “Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party”, the Italy BIT is slightly more prescriptive and states that each party must undertake to maintain “an appropriate framework able to guarantee investors the continuity of their legal treatment” and undertakes to comply with any other commitments made vis-à-vis investors.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Cameroon

Issue

Other substantive protections

Free transfer of payments

All the Cameroon BITs protect the right of free transfer and repatriation of investments. In most cases, the BITs provide a non-exhaustive list of such transfers that are permitted. The Belgium BIT includes an MFN clause in relation to the transfer of assets. The Turkey, USA, Canada and Belgium BITs also all have provisions relating to the exchange rate of the transfer.

Some of the BITs have carve-out provisions. The Turkey and Canada treaties for example provide for exceptions which may prevent the transfer of investments on a ‘good faith basis’. The Canada BIT has detailed carve-out provisions that will for example prevent transfers for application of laws such as relating to bankruptcy or criminal offences. The Turkey BIT can prevent transfers in exceptional circumstances where the transfer would cause ‘serious balance of payment difficulties.’ Similarly the USA BIT allows parties to maintain laws and regulations such as relating to tax and further the protection of creditors and adjudicatory judgments.

Non-impairment

Most BITs include an obligation not to impair the management, maintenance, use, enjoyment or disposal of investments.

Armed conflict / civil unrest

All Cameroon’s BITs except the Belgium BIT contain provisions that require compensation to be given to investors for certain events such as armed conflict or similar events.

Transparency of laws

The Canada BIT includes express transparency provisions providing that the host state must publish its laws, regulations, procedures and administrative rulings. The host state must also provide information on any measure that may have an impact on an investment. The USA treaty on the other hand provides an express clause for consultations along with the exchange of information in relation to the treaty and investments. The Canada BIT has a similar provision relating to consultations.

Applicability of other agreements or obligations

The USA and Belgium BITs contain provisions that entitle an investor to the most favourable provisions where a matter is governed by both the treaty and by any other obligations.

Subrogation

All the treaties except the USA BIT contain subrogation provisions. These provisions have the effect of recognising any rights of subrogation to an investor’s rights that may exist under insurance or indemnity.

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Cameroon

Issue

Procedural Rights

Selection of dispute resolution fora

The vast majority of Cameroon's treaties provide investors with a choice between various dispute resolution options – typically ICSID arbitration, local courts, ICC arbitration and ad hoc arbitration under the UNCITRAL Rules.

Older treaties are unclear as to the applicable dispute resolution mechanism or forum. For example, the Germany BIT provides for disputes to be resolved by the governments of the respective contracting states and if the dispute cannot be settled that way, it can be brought before “an arbitral tribunal” chosen by one of the parties.

Fork in the road

In some treaties where the investor has a choice between dispute resolution methods, the investor's choice is expressly binding and final. This is the case for example for the Turkey BIT.

Waiver of local remedies

Under the Belgium BIT, each state gives its irrevocable advance consent to the submission of investment disputes to ICSID. Consent by the host state to ICSID arbitration in this treaty implies a waiver of the requirement that local – administrative and judicial – remedies should have been exhausted.

Applicable law

While some of Cameroon's BITs, such as the one with Belgium, do not contemplate any applicable law or rules to be relied upon by the arbitral tribunal, other treaties are vague and simply state, such as the Netherlands BIT, that tribunals must rule "on the basis of the law". The Canada BIT includes in the applicable law provision the agreement itself and rules of international law.

Some of Cameroon’s treaties contain more descriptive indications and mandate the application of the domestic laws of the territory where the investment was made, but also of conflict of laws rules, the provisions of the treaty itself, any other agreement entered into in relation to the investment and the principles of international law (eg. Egypt, Guinea, Mali, Mauritania, Mauritius, Morocco and Turkey BITs).

Cooling-off

All Cameroon treaties involve a cooling-off period. Most allow for parties to find an amicable solution within 6 months (Belgium, Egypt, Guinea, Italy, Mali, Mauritania, Mauritius, Morocco, USA, Netherlands, Switzerland and Turkey); one provides for a 3-month period (UK) and one provides for a 2-month period (Canada).

11. What is the status of this country’s investment treaties?

Cameroon

Cameroon has entered into 17 bilateral investment treaties, however not all are in force. Only 9 out of 17 are currently in force and these are: Belgium, China, Germany, Italy, Netherlands, Romania, Switzerland, UK and US. For those treaties that are not yet in force, it is unknown whose decision it was not to ratify them. The latest publicly available treaty was signed with Italy. The China BIT entered into force in 2014 but at the time of this publication it was not publicly available. It is therefore not forthcoming to draw conclusions on the general attitude of Cameroon towards its investment treaty framework. Nevertheless, Cameroon appears to favour the investment treaty regime as the treaty with China entered into force as recently as 2014.

The Government of Cameroon seems to actively seek to attract foreign investment in order to create economic growth and employment. According to investment reports issued by the US Department of State, Cameroon is however less effective at following through with interested investors in order to ensure that investments move forward in a timely manner. Since 2012, numerous trade delegations have visited Cameroon exploring investment opportunities, including delegations from China, Singapore, India, Thailand, Brazil, and Turkey. China is emerging as Cameroon’s largest foreign investor, with significant activities in the areas of infrastructure, extractive industries, and energy. According to the Ministry of Economy, the BRICS (Brazil, Russia, India, China, and South Africa) invested USD 1.42 billion in Cameroon in 2012.

Cameroon’s National Assembly adopted an Investment Charter in 2002 to attract international investors and replace the existing Investment Code of 1990. However, the Government has not yet fully implemented the 2002 Investment Charter. In May 2009, President Paul Biya signed a decree postponing to 2014 the deadline for implementation of some provisions of the investment charter. In the meantime, in 2013, Cameroon adopted Law N° 2013/004 of 18 April 2013 intended “to lay down private investment incentives in the Republic of Cameroon”, superseding the Investment Code of 1990.
The investment treaty regime in Cameroon is further supported through the country being a member state of the International Centre for Settlement of Investment Disputes (ICSID convention) and a signatory to the New York Convention.

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Cameroon

Government entity to which claim notices are sent

Ministry of Justice, Yaoundé, Cameroon

Prime Minister, Yaoundé, Cameroon

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Cameroon

Government department which manages investment treaty arbitrations

Ministry of Justice, Yaoundé, Cameroon

Ministry of Industrial and Commercial Development, Yaoundé, Cameroon

Ministry of Finance, Yaoundé, Cameroon

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Cameroon

Internal/external counsel

In the majority of Cameroon’s five publicly reported investment treaty claims, the State was represented by external counsel.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Cameroon

Washington Convention implementing legislation

Cameroon has signed (23 September 1965), and ratified (3 January 1967) the Washington Convention, which is in force as of 2 February 1967.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Cameroon

New York Convention implementing legislation

Cameroon is a signatory to the New York Convention. The Convention was ratified into Cameroonian law on 19 February 1988.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Cameroon

Legislation governing non-ICSID arbitrations

There is no express legislation relating to non-ICSID investment disputes seated in Cameroon. However some of Cameroon's treaties provide for UNCITRAL arbitration.

Arbitration in Cameroon is mainly governed by the Civil Code and the Code of Civil and Commercial Procedure in the third book from articles 576 to 601.1. Also, Cameroon is a founding member of the Organisation for the Harmonisation of Business Law in Africa (“OHADA”). OHADA entered into force in Cameroon on 3 December 1996. In this context, the OHADA states adopted a Uniform Act on Arbitration in 1999 (“the Uniform Act”) which is the law on arbitration of all states of OHADA. The Uniform Act sets out the rules applicable to any arbitration where the seat of arbitration is located in an OHADA member state. The Uniform Act is based on the UNCITRAL model law. It supersedes the national laws on arbitration of the OHADA states, including Cameroon.

Cameroon has also set up the GICAM Arbitration Centre (Centre d’arbitrage du Groupement inter-patronal du Cameroun) in Douala.

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Cameroon

Compliance with adverse awards

Two awards have been rendered in matters involving Cameroon. These are both in relation to the Klöckner Industrie-Anlagen GmbH v. United Republic of Cameroon and others case (ICSID Case No. ARB/81/2) where an award was made on 21 October 1983 and subsequently annulled on 3 May 1985 and a second award was made on 26 January 1988.

Generally, however, with regards to investment arbitration, arbitral awards are supposed to be directly enforceable. Law No. 75/18 of 8 December 1975 was adopted in order to designate a national authority that may recognise or enforce ICSID awards. According to this law, the Supreme Court of Cameroon has jurisdiction to recognise, by decision, awards made by ICISD tribunals for the dispute resolution between states and investors.

19. Describe the national government’s attitude towards investment treaty arbitration

Cameroon

Attitude of government towards investment treaty arbitration

The Republic of Cameroon is open to and accepts the binding international arbitration clauses in its specific investment treaties, as demonstrated by the international arbitrations to which it has been a party.

There has been no indication to date that that attitude has changed in recent years. However, so far there have only been four investment treaty cases brought against Cameroon. Given Cameroon’s limited experience in the field of treaty arbitration, it would be prudent to await additional developments before drawing conclusions as to Cameroon’s overall attitude.

It must be noted, however, that language used in more recent treaties (eg. the Italy BIT) is not more restrictive than in previous treaties, in particular as regards dispute settlement. This indicates that the country has remained committed to its investment treaty regime and protections, including dispute resolution mechanisms such as international arbitration, which is enshrined in all of Cameroon’s treaties.

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Cameroon

Attitude of local courts towards investment treaty arbitration

As no publicly available investment treaty awards against Cameroon exist to date, it is not possible to evaluate the attitude of local courts towards a potentially adverse award. Cameroon has however signed and ratified the Washington Convention. As signatories to the New York Convention, Cameroonian courts also recognize and enforce foreign arbitral awards.

As mentioned above, with regards to investment treaty arbitration, arbitral awards are in principle directly enforceable in Cameroon. Law No. 75/18 of 8 December 1975 was adopted in order to designate a national authority that may recognise or enforce ICSID awards. According to this law, the Supreme Court of Cameroon has jurisdiction to recognise, by decision, awards made by ICISD tribunals for the dispute resolution between states and investors.

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Cameroon

National legislation

Substantive protections

Procedural rights

FET

Expropriation

Other

Local courts

Arbitration

Law No. 213/004 of 18 April 2013

No

No

This law replaces Cameroon's Investment Code of 1990 and seeks to overcome its numerous bureaucratic hurdles. It is very attractive as it differs from most African investment codes.

Firstly, it provides national treatment protection as there is no discrimination between local and foreign investors. Secondly, it indicates that no minimum investment is required (in Angola the investment incentives only kick in with $1m, in Rwanda with $250,000). There are certain criteria set forth for the application of the code. These are (i) the number of local staff employed, (ii) the percentage of exports, (iii) the use of natural resources and (iv) the contribution to value added. Thirdly, there are numerous incentives. During the establishment phase (which cannot exceed five years), the new code provides for exemptions from VAT and duties on key services/assets (including an exemption from stamp duty on the lease of immovable property). During the operation phase (which cannot exceed 10 years), further exemptions from or reductions of other taxes (including corporate tax), duties (such as stamp duty on loans) and other fees are granted.

Also, unlike many other African investment codes, the new law provides for many additional, non-tax related benefits, eg. the right to open local and foreign currency accounts locally or abroad, the right to freely cash in and keep abroad funds or income, the right to directly pay non-resident suppliers of goods and services abroad. Facilities will also be put in place to facilitate the issuance of visas and work permits, environmental compliance certificates and land titles and long-term leases to attract and further protect foreign investors.

The new code has, however, not resolved the biggest bureaucracy issue of the previous law. For example, the process to qualify for the various benefits of the investment law still requires three different approvals: the one-stop shop body, the Minister of Finance and the Minister of Private Investment. Also, during the operation phase, the benefits are not automatic; all import and local purchase requests must obtain the visa of the body in charge of incentives promotion first. Finally, the new law provides for the setting-up of two other authorities: the Control Committee and a Joint Monitoring Committee. As a result the new investment code is not as straightforward in its application as it seems.

No

Yes

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Cameroon

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

Multilateral Investment Guarantee Agency

The Multilateral Investment Guarantee Agency (MIGA) is the political risk insurance and credit enhancement arm of the World Bank Group. In July 2014 it announced that it would support investments in three power sector projects in Cameroon. The investments in the national electric utility and two existing power generation projects will help meet growing demand for electricity and improve the overall efficiency and operation of the sector. The MIGA also allows for guarantees to cover outgoing foreign investment.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Cameroon

Awards

RSM Production Corporation v. Republic of Cameroon (ICSID Case No. CONC/11/1) and RSM Production Corporation v. Republic of Cameroon (ICSID Case No. ARB/13/14), brought under a contract. After a failed attempt at conciliation to resolve a dispute, RSM oil company filed an ICSID arbitration request against the State of Cameroon on July 2013. The dispute involves the State of Cameroon’s transfer of a portion of its five-year concession to explore the Logbaba natural gas field in Douala to a UK company. RSM also claimed that Cameroon violated an agreement under the concession on price-fixing of natural gas. The matter settled on 19 January 2016;

Lafarge v. Republic of Cameroon (ICSID Case No. ARB/02/4), brought under the 1990 Cameroon's Investment Code. The case settled on 13 June 2003;

Klöckner Industrie-Anlagen GmbH and others v. United Republic of Cameroon and Société Camerounaise des Engrais (ICSID Case No. ARB/81/2), brought under a contract. The award was rendered on 21 October 1983 and annulled on 3 May 1985. The parties resubmitted the case shortly after and a new award was rendered on 26 January 1988. The final award is not publicly available.

Pending proceedings

Capital Financial Holdings Luxembourg S.A. v. Republic of Cameroon (ICSID Case No. ARB/15/18), brought under the Belgium-Cameroon BIT

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Cameroon

www.kluwerarbitration.com/CommonUI/document.aspx?id=kli-bosman-ch05.3

Tumnde, Taylor, The Enforcement of Arbitral Awards in Cameroon (April 5, 2013)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2245713

http://blogaila.com/2012/08/08/the-enforcement-procedure-of-arbitral-awards-in-cameroon-by-ndeugwe-bernard-taylor-tumnde/

http://globalarbitrationreview.com/article/1032440/rsm-files-against-cameroon-after-conciliation-fails

http://globalarbitrationreview.com/article/1034482/bank-investor-sues-cameroon-at-icsid

John Miles, Tunde Fagbohunlu SAN, Kamal Rasiklal Shah, Arbitration in Africa, A Review of Key Jurisdictions, (© Sweet & Maxwell); Chapter 25; pp. 431-438

www.kluwerlawonline.com/search.php?action=newsearch&topic=International+Law&fulltext=cameroon&pubtype=specific&pubs%5B%5D=Journal+of+International+Arbitration&tags=%5B%22Search+in%3A+Journal+of+International+Arbitration%22%5D

www.kluwerarbitration.com/CommonUI/jurisdiction.aspx?jurisdiction=Cameroon&text-type=BITs

U.S. Department of State, 2016 Investment Climate Statement www.state.gov/e/eb/rls/othr/ics/investmentclimatestatements/index.htm?year=2016&dlid=254177

Cameroon Investment, Trade Laws and Regulations Handbook, Volume 1: Strategic Information and Regulations; Int’l Business Publications, USA (7 Feb. 2015)

World Bank Overview Cameroon www.worldbank.org/en/country/cameroon/overview

World Bank: Protecting minority investors www.doingbusiness.org/data/exploreeconomies/cameroon/#protecting-minority-investors

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