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The Middle Eastern and African Arbitration Review 2019

Recent Trends in Investment Arbitration in Africa

Introduction

Africa has been shown by scientists to be the cradle of humankind. It also has some claim to be the birthplace of investment arbitration. In 1964, the World Bank convened the first of four regional conferences in Addis Ababa to discuss the creation of a new international institution: the International Centre for the Settlement of Investment Disputes (ICSID). As Aron Broches, the then World Bank’s general counsel, main drafter of the ICSID Convention and founding secretary-general of ICSID, noted at the time:

[I]t was very fitting that the first of four regional meetings to be held by the Bank should take place in Africa. African countries had an urgent need to encourage the international flow of capital and skills and had shown a willingness to create an atmosphere conducive to financial and economic cooperation.[1]

Following the creation of ICSID, African states have been parties in a number of landmark cases:

  • Adriano Gardella SpA v Côte d’Ivoire, the very first award ever issued by an ICSID tribunal;
  • Salini v Morocco, where the tribunal set out the often-cited criteria for the definition of an ‘investment’; and
  • Klöckner v Cameroon, where an ICSID ad hoc committee was constituted for the very first time.

All of these cases are major milestones in the investment arbitration field.[2]

Looking beyond ICSID, African states have also shown themselves to be great innovators in investment arbitration: with collective steps such as the modernisation of the Organisation for the Harmonization of Corporate Law in Africa (OHADA) arbitration rules and the adoption of a number of model investment treaties, as well as bilateral efforts, such as the signing of the Morocco–Nigeria bilateral investment treaty (BIT) – a landmark development in the history of investment treaties.

It is no surprise that where there is a significant amount of investment, disputes will commonly arise. The future for economic growth and foreign investment in Africa remains extremely positive. As the African Development Bank indicated in its yearly outlook, ‘real output growth is estimated to have increased 3.6 per cent in 2017 and to accelerate to 4.1 per cent in 2018 and 2019’.[3] Foreign direct investment (FDI) in Africa is also on the rise,[4] most noticeably in relation to large energy and manufacturing projects.[5] The United Nations Conference on Trade and Development (UNCTAD) has underscored that ‘FDI inflows to Africa are forecast to increase by about 20 per cent in 2018 to $50 billion’.[6] Given this level of investment and growth, it will come as little surprise if African states continue to be caught up in disputes with investors, and accordingly continue to hold a prominent role in the evolution of investment arbitration.

The landscape for investment arbitration involving African states

Across Africa’s 54 sovereign states, the legal landscape on the whole is favourable for foreign investors.

First, 49 states on the African continent are either contracting or signatory states to the ICSID Convention, with the exceptions being Angola, Eritrea, Equatorial Guinea, Libya and South Africa.[7] While Ethiopia, Guinea-Bissau and Namibia have signed the ICSID Convention, they have not ratified it to date. This means that the vast majority of African states (46 out of 54) are bound by the ICSID Convention, which provides a reliable framework and a trusted institution for the conduct of investment arbitration proceedings, and ensures that arbitral awards can be enforced across all of its signatory states.

Second, according to the UNCTAD database,[8] 43 jurisdictions across Africa have adopted an investment law establishing a specific regime for FDI and the protection of these investments. Among those 43 investment laws, some 29 (roughly three quarters) provide the investor with a remedy in international arbitration.

In addition to investment laws, international conventions remain key to providing foreign investors access to international arbitration with respect to investments made in Africa. As of March 2019, African states are party to 531 international investment agreements (IIAs) currently in force, among which 517 are BITs.[9] Together, African states have signed a further 367 IIAs that are yet to come into force.[10] In recent years, a large number of IIAs have been signed with other emerging economies – for example, the Brazil–Ethiopia BIT[11] – and between African states – for example, the Morocco–Congo BIT. A large number of treaties have also been signed by African states with Turkey and the United Arab Emirates over the past three years.[12]

Mirroring what is happening in other parts of the world, be it with the North American Free Trade Agreement being reborn as the United States–Mexico–Canada Agreement or with the European Union’s efforts at a harmonised investment dispute resolution mechanism, Africa is also seeing an increasing number of regional instruments relating to investment protection and dispute resolution mechanisms.[13] In 2018, this regional cooperation reached a new apex with the signing of the African Continental Free Trade Agreement (AfCFTA), which aims to create a single market across the entire continent, and comes on the back of the negotiation of the African Union’s Pan African Investment Code (PAIC), which is discussed further below.

According to the most recent statistics published by the ICSID Secretariat, 11 of the 56 new ICSID arbitration cases registered in 2018 were brought against African states (19.6 per cent of claims registered that year).[14] Furthermore, statistics show that approximately half of these cases relate to oil, gas or mining projects.

Notwithstanding the increase in the number of cases against African states, the appointment of African arbitrators in ICSID cases remains very low. In fact, the proportion of African arbitrators, conciliators and ad hoc committee members appointed in ICSID cases has actually declined over the years – from just 5 per cent of the overall number in 2009 to just about 3 per cent in 2018.[15]

This relative lack of representation of nationals from African states on arbitral panels has been harshly criticised, in particular by Somali Judge Abdulqawi Yusuf, now president of the International Court of Justice, in his talk at the ICCA Congress in Mauritius.[16]

Therefore, while there remains much to be done in order to combat this stark under-representation on investment arbitration panels, there have been some encouraging efforts on the part of institutions to promote African arbitrators. With respect to ICSID, for example, in the first 40 or so years of the history of ICSID up to 2009, only 41 African nationals had participated as arbitrator, conciliator, mediator or ad hoc committee member in ICSID proceedings.[17] However, by the end of 2018, this figure had risen to 93 African nationals (and four dual nationals).[18] A majority of those appointments were made by ICSID itself, which underscores the efforts made by this institution to bring more diversity to the pool of arbitrators.[19]

In parallel, there have been an increasing number of events organised in Africa and organised by arbitration associations seeking to further train and promote local practitioners in investment arbitration.[20] In 2018, the Association of Young Arbitrators (AYA) organised the first Intra-Africa Award Writing Competition, won by a Nigerian practitioner. Such events can only contribute ultimately to increased diversity on arbitral panels over time.

Recent developments in investment protection regimes across Africa

Many African states, either individually or jointly, have recently adopted various measures to modernise investment protection regimes available to foreign investors, leading certain authors to comment on the ‘Africanisation’ of investment disputes.[21] These measures have come in a variety of forms, including through domestic legislation and in bilateral, regional and pan-African agreements.

Domestic laws on investment protection

Investment protection laws and codes remain relatively common instruments across Africa. While some laws provide for international arbitration, at times the modernisation of these laws has been a means for states to voice opposition to the existing investment arbitration system and to transfer investment disputes back to state courts.

The most well-known example is South Africa’s Protection of Investment Act 2015 (the Act).[22] First conceived in the late 2000s, this Act finally came into force in July 2018. The Act seeks to shift the resolution of investor-state disputes away from arbitration in favour of mediation and the South African courts. Transitional provisions in this Act provide that existing investments made under BITs ‘will continue to be protected for the period and terms stipulated in the treaties’, but that those investments made after the termination of the treaties and before the promulgation of the Act will be governed by general South African law. Subject to the consent of the South African state, the Act also permits state-to-state arbitration between South Africa and a foreign investor’s home state.[23] Even then, this mechanism is only available after the investor has exhausted all the available domestic remedies and after obtaining the state’s express consent to arbitrate. Whether this new dispute resolution mechanism truly strikes a better balance between the interests of host state and the investor has been questioned by some commentators, and will be tested in the coming years.[24]

South Africa is not the only African jurisdiction to have modified its local legislation in order to restrict access to investment arbitration in the international forum. The 2016 Namibia Investment Protection Act provides for either mediation or recourse to local courts. While international investment arbitration is still possible, that is only where a specific arbitration agreement has been signed between the state and the investor.[25] In 2017, Egypt’s new legislation provided for the creation of a new local institution – the Egyptian Arbitration and Mediation Centre – that would be in charge of administering investment disputes.[26] In August 2018, the Ivory Coast modified its investment protection regime with a new Investment Code.[27] The dispute resolution mechanism is novel and may provide a model for other West African states. The Investment Code provides that disputes first be subject to mediation under the UNCITRAL Rules and then for investment arbitration under the rules of the OHADA Court of Justice and Arbitration.[28] All these developments contribute to the Africanisation of investment arbitration.

Bilateral investment treaties

Bilateral investment treaties are plentiful across Africa. As noted above, African states are parties to over 517 BITs that are currently in force.

Recently adopted BITs signal a shift in attitudes. In particular, the Canada–Nigeria and Canada–Cameroon BITs, which were signed in 2014, were the first African BITs to incorporate corporate and social responsibility provisions. However, for some, these provisions do not go far enough: under the BITs, the state bears the obligation to ensure that investors comply with corporate and social responsibility standards. Neither BIT, however, places any obligation on foreign investors to comply with these standards.[29]

While not yet in force, the Morocco-Nigeria BIT signed in 2016 has gone a step further. It has been hailed as a landmark development in the history of BITs. In this treaty, the states have imposed obligations upon investors, in particular with regards to their compliance with local legislation on environmental, social, human rights and anti-corruption measures.[30] The states, moreover, agreed to establish a joint committee whose role is to administer the performance of the treaty and exchange information concerning investments.[31] In so doing, both states have accepted a more active role than that usually undertaken by signatory states in the effective performance of investments in one another’s country, in accordance with the host state’s laws and overarching investment strategy.[32]

The Morocco–Nigeria BIT also adopts certain innovative rules with respect to arbitration. First, it expressly prohibits arbitrators from applying the ‘loser pays’ rule in an arbitration and instead requires that each party bears its own legal costs and its share of the procedural costs.[33] Second, it also prohibits the tribunal from ordering provisional or conservatory measures on the assets of either party, in particular any property used or intended to be used in the exercise of diplomatic missions of the host state.[34]

It is worth noting, however, that Morocco has not sought to negotiate similar provisions in its other recent BITs. For example, the 2018 Morocco–Congo BIT has a boilerplate arbitration agreement that does not contain any of the limits set out in the Morocco–Nigeria BIT.[35]

Multilateral investment treaties

Africa is home to eight regional economic communities.[36] Many of these have created a specific investment protection regime.[37] We look at two of these regional approaches in more detail below.

In 2008, the 15 member states of the Economic Community of Western African States (ECOWAS) issued a model law on investments.[38] The ECOWAS Community Rules on Investment, which entered into force on 19 January 2009, follow the trend taken in some BITs by placing an explicit requirement on investors to demonstrate compliance with local legislation.[39] A further notable provision is article 13(1), which establishes an anti-corruption obligation on the investor from the outset and throughout the life of the investment.

The ECOWAS Community Rules on Investment maintain a somewhat boilerplate dispute resolution mechanism, allowing for arbitration following a six-month cooling-off period. The parties may submit their dispute to arbitration to ‘a national court; any national machinery for the settlement of investment disputes; [or] the relevant national court of the member states’.[40] Interestingly, however, should the parties fail to agree on the dispute resolution mechanism, the rules provide that the dispute will be referred to the ECOWAS Court of Justice, depriving an arbitral tribunal of any jurisdiction it otherwise might have had. This provision, however, fails to indicate the time within which the parties must agree on the dispute resolution mechanism.[41]

The 16 members of the Southern African Development Community (SADC), another regional organisation, were influenced by South Africa’s decision to move away from investment arbitration.[42] In 2008, the SADC issued its Protocol on Finance and Investment. Annex 1 of the protocol provided for two alternative arbitration choices – ICSID arbitration or UNCITRAL ad hoc arbitration (this last option becoming mandatory should the parties fail to agree on the dispute resolution mechanism). Four years later, with South Africa in the process of terminating many of its BITs, SADC issued a model BIT where the recommended option was for member states not to include any investor-state dispute settlement provisions at all, only including a mechanism similar to diplomatic protection.[43] The Drafting Committee specifically noted that ‘several states are opting out or looking at opting out of investor-state mechanisms, including . . . South Africa’.[44] However, the Drafting Committee accepted that certain states might nonetheless wish to include investor-state dispute settlement provisions and set out an optional recommended text based on the US and Canadian model BITs, among others.[45]

The most dramatic shift in the investment protection paradigm across Africa occurred in 2016, when the African Union – which includes almost all of the states of the continent – released the draft Pan-African Investment Code (PAIC). The PAIC aims to participate ‘in the process of developing a sound and competitive and private sector in Africa coherent with the transformative agenda of the continent under the global framework of agenda 2063’.[46] Its purpose is to provide a framework for investments made between African Union member states. This is all the more relevant at a time where the African Union is gaining momentum as an economic force with the AfCFTA, which has a combined gross domestic product exceeding US$3 trillion.

The PAIC underlines African legislators’ full awareness of recent investment arbitration jurisprudence, and in particular of those cases that have generated heated debates, such as (for example) the Philip Morris v Australia and Uruguay cases, or the series of cases brought against Argentina following its 2001 economic crisis. For example, the PAIC expressly protects a state’s rights to regulate, in particular with regards to ‘measures relating to the protection of human, animal or plant life or health’.[47] This provision could encompass any environmental and health regulations – such as, for example, new legislation that might provide for plain packaging of cigarettes.[48] In another provision, the draft treaty expressly entitles states to undertake temporary measures that would imply restrictions on investments in ‘the event of serious balance of payments and external financial difficulties or threat thereof’[49] – a defence akin to that submitted by Argentina in the numerous investment arbitration proceedings that arose from its management of the 2001 economic crisis.

Finally, as if to respond to Judge Yusuf’s criticism that African arbitration users – and states in particular – fail to promote the use of African arbitration, the dispute settlement clause for investor-state disputes under the draft PAIC provides that, following a mandatory negotiation period, UNCITRAL arbitration ‘may be conducted at any established African public or African private alternative dispute resolution centre’.[50] The PAIC therefore takes a positive step to ensure that intra-African investment disputes will be heard in Africa, and are not exported to the likes of London or Paris.

Recent issues in investment arbitration proceedings involving African states

Recent developments in investment arbitration proceedings and recently published awards involving African states have raised significant novel issues, thereby confirming the importance of Africa in the sphere of investment arbitration.

Environmental protection

Environmental protection is a hot topic for states and global initiatives to combat climate change such as the 2015 COP 21 and the signature of the Paris Agreement evidence a shift in global mind-set. All 54 African countries signed the Paris Agreement, with only four countries so far failing to ratify it.[51] Alongside these initiatives, African countries have taken certain steps to ensure that environmental protections are included in investment treaties and codes.

For example, the ECOWAS Community Rules expressly indicate that ‘member states recognise that it is inappropriate to encourage investment by relaxing . . . environmental measures’, pressing states to prioritise sustainable development over investment for investment’s sake.[52] Similarly, the SADC Investment Protocol provides for the protection of the environment and protects the state’s right to regulate in matters of health, security and environment.[53] Further, the 2012 SADC Model BIT grants the arbitral tribunal the power to rule on whether the investor’s breach of the treaty provisions protecting the environment and human rights should have a bearing on the merits of the dispute. Most recently, article 37 of the PAIC requires member states to ensure that their laws and regulations protect the environment, but also places the onus on investors to protect the environment.[54]

Tribunals are also paying keen attention to the need for investors to comply with domestic laws designed to protect the environment. In October 2018, the tribunal in Cortec Mining et al v Kenya found that the investors did not have a protected investment under the UK–Kenya BIT as they had failed to comply with Kenyan law in obtaining a mining licence.[55] The tribunal – in line with an earlier decision of the Kenyan Court of Appeal – found that the investors had failed to comply with provisions of Kenyan law requiring an environmental impact licence to be issued before the valid grant of any mining licence. Of crucial importance in this case is the fact that the BIT in question did not include express wording that is found in a number of treaties requiring that investments be made ‘in accordance with [host state] law’. Unanimously, the tribunal held that a requirement to comply with host state law could be implied into the interpretation of both the BIT and the ICSID Convention.

Transparency in investment arbitration

For a number of years, civil society groups have expressed concerns about a lack of transparency in investor-state arbitration. Public interest is invariably at the heart of disputes that oppose states to foreign investors, perhaps all the more so when the dispute relates to significant economic projects in some of the poorest states and has the potential to impact the lives of many. Also, the fact that many such proceedings are held behind closed doors and are decided by a relatively small pool of arbitrators who specialise in this field have led some to call into question the legitimacy of these proceedings.

These concerns were central to the decision of a number of states to sign the Mauritius Convention, a multilateral treaty on transparency in investment arbitration. The convention enshrines the Transparency Rules (Transparency Rules), an autonomous set of procedural rules designed to render investment arbitration more transparent. While these rules can be applied on a case-by-case basis, ratification of the Mauritius Convention makes their implementation automatic if both the host state and the home state of the investor are parties to the convention. As of 1 March 2019, the Mauritius Convention has been signed by 23 states, of which seven are African states.[-1]7 To date, the Mauritius Convention has been ratified by five of those 23 states, including Cameroon, the Gambia and Mauritius.[-1]8

Additionally, among the 49 treaties that apply the Transparency Rules or set out provisions modelled on them,[-1]9 15 have been signed by African states. Three of these treaties have been concluded between African states.[-1]0 Model treaties have also incorporated provisions in order to make investment arbitration more accessible to the public. For example, the 2008 ECOWAS Community Rules provided for transparency of hearings.[-1]1 In 2012 (before the Transparency Rules were even published),[-1]2 the SADC Model BIT expressly provided for transparency of arbitral proceedings, and in particular made available to the public the parties’ submissions and the tribunal’s decisions.[-1]3 Interestingly enough, the PAIC does not appear to provide any transparency mechanism.

An African state was also first to consent to the application of the Transparency Rules in an ICSID arbitration. While the Republic of Guinea is not a party to the Mauritius Convention, it consented to the application of the Transparency Rules in the case of BSGR v Guinea, which was commenced in August 2014.[-1]4 The parties agreed that all pleadings, exhibits, tribunal orders and decisions would be published on the ICSID website, while reserving the right to apply for the redaction of certain information on the grounds of confidentiality or privilege. The hearings were streamed on ICSID’s website (in both French and English) with a small delay to allow for the broadcast to be suspended for the parts of the hearing dealing with confidential or privileged documents.[-1]5 The video-recording and streaming allowed the press and the public to follow the proceeding closely.[-1]6 The recording of the two hearings held in this case have been permanently uploaded on ICSID’s YouTube channel.[-1]7

Investor obligations and states’ counterclaims

Often a continent of firsts in investment arbitration, Africa is no stranger to state counterclaims. In the case of MINE v Guinea, the Republic of Guinea was the first state to ever submit a counterclaim in an ICSID arbitration and it was also the first state to ever see a tribunal grant its demand.[-1]8

While under certain instruments the right of states to initiate claims or file for counterclaims in investment arbitration cannot be asserted easily, the draft PAIC joins the newest generation of investment protection treaties that include a full chapter on investors’ obligations (including provisions on bribery and compliance with human rights) and expressly allows for state counterclaims.[-1]9 The express language set out in the new model treaties detailed above and the imposition of obligations upon investors will require a shift in mindset. Counterclaims will become more common.

Conclusion

Africa has quietly, but very effectively, been one of the most innovative forums for investment arbitration over the years. The most recent developments in treaty drafting contribute to a coming of age of Africa in the field of investment protection.

African states have responded to the criticism that bilateral investment treaties are weighted too heavily in favour of investors by ensuring that new treaties impose obligations on investors, in particular with regards to the protection of environmental and corporate social responsibility obligations.[-1]0 Other significant developments include express provisions on a state’s right to regulate[-1]1 and a desire that disputes involving African states should be heard on African soil.[-1]2

The Africanisation of investment arbitration should be applauded and encouraged to continue, while attention will also turn to observing how the new treaties, the new laws and the new practitioners all join together as elements that contribute to creating a safe economic environment for foreign investment in Africa. The next decade will be one of action, where states will bear the responsibility of properly implementing the new mechanisms they have created. More changes are no doubt on the horizon.


Notes

[1] History of the ICSID Convention, vol. II-1, available at https://icsid.worldbank.org/en/Documents/resources/History%20of%20ICSID%20Convention%20-%20VOLUME%20II-1.pdf, pp 239–240

[2] They are recognised as such by ICSID, which named the hearing rooms at its premises after two of these cases (Salini and Klöckner).

[3] African Development Bank Group, African Economic Outlook (2018), available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Publications/African_Economic_Outlook_2018_-_EN.pdf

[4] UNCTAD World Investment Report 2018 – Investment and New Industrial Policies, p 39, Figure B. While a fall in commodity prices affected the flow of foreign direct investment in Africa between 2016 and 2018, it is expected that 2019 will see a return to the significant growth that characterized the period from 2010 to 2015.

[5] UNCTAD World Investment Report 2018 – Investment and New Industrial Policies, p 39, Table C.

[6] UNCTAD World Investment Report 2018 – Investment and New Industrial Policies, p 14.

[7] ICSID, The ICSID Caseload Statistics, Issue 2019-1, p 6.

[8] https://investmentpolicyhub.unctad.org/InvestmentLaws

[9] See https://investmentpolicyhub.unctad.org/IIA

[10] Seven of these treaties were signed in 2018.

[11] The signature of this BIT is a powerful signal insofar as, according to the UNCTAD database, the two countries have each signed less than 50 BITs and have been known to be rather reticent in resorting to investment arbitration mechanisms. This BIT is yet to enter in force, however Brazil has so far only one BIT in force, signed with Angola in 2015.

[12] Turkey has thus signed 30 BITs with African countries, though only seven are currently in force; among the 23 BITs remaining, 11 were signed since January 2016. In that same period, 8 BITs were signed between African countries and the United Arab Emirates.

[13] UNCTAD World Investment Report 2018 – Investment and New Industrial Policies, p xiii.

[14] New cases were registered against Algeria (two cases), Egypt (two cases), Morocco (two cases), Togo, Senegal, Rwanda, the Gambia and Gabon.

[15] Based upon the statistics issued in ICSID, The ICSID Caseload Statistics, Issue 2019-1, pp 21–22; ICSID, The ICSID Caseload Statistics, Issue 2010-1, p 17.

[16] Judge Yusuf’s Opening Address at the 2016 ICCA Mauritius Conference is available on https://www.arbitration-icca.org/AV_Library/Judge_Abdulqawi_Yusuf-ICCA_2016-Mauritius.html.html

[17] ICSID, The ICSID Caseload Statistics, Issue 2010-1, p 17.

[18] ICSID, The ICSID Caseload Statistics, Issue 2019-1, pp 21–22.

[19] ICSID, The ICSID Caseload Statistics, Issue 2019-1, p 20. It is noteworthy in particular that, out of the 50 Sub-Saharan African nationals who participated in these roles, 29 were appointed by ICSID.

[20] Thus, at least five conferences exclusively focused on investment arbitration in Africa took place between March and December 2018. Investment Treaty Law & Arbitration Training aimed at African practitioners is moreover organised by the association African International Law Awareness (AILA) for September 2019.

[21] Athina Fouchard Papaefstratiou, Capucine du Pac de Marsoulies, Martin Tavaut, and Clément Fouchard, (AfricArb) , ‘The Africanisation of Rule-Making in International Investment Arbitration’, Kluwer Arbitration Blog, 17 August 2018, http://arbitrationblog.kluwerarbitration.com/2018/08/17/africanisation-rule-making-international-investment-arbitration/; B Le Bars, The Evolution of Investment Arbitration in Africa, GAR: The Middle Eastern and African Arbitration Review, May 2018.

[22] Act No. 22 of 2015, Protection of Investment Act, 2015, published in the Republic of South Africa’s Government Gazette, Vol 606, 15 December 2015, No. 39514.

[23] Protection of Investment Act, 2015, article 13(5).

[24] M Kenton & A–S Petitdemange, ‘South African Protection of Investment Act: A Balance of Interests?’, Transnational Dispute Management, Vol 13, Issue 4, October 2016.

[25] Namibia Investment Protection Act, Part VI. Dispute settlement, Section 28. Resolution of post establishment disputes.

[26] Egyptian Investment Law, 2017, available at https://investmentpolicyhub.unctad.org/InvestmentLaws/laws/167

[27] Ordonnance No. 2018-646, 1 August 2018. Available at http://www.cepici.gouv.ci/web/docs/Ordonnance-2018-646-du-01-08-2018code-investissement.pdf

[28] Ordonnance No. 2018-646, 1 August 2018, article 50. Available at http://www.cepici.gouv.ci/web/docs/Ordonnance-2018-646-du-01-08-2018code-investissement.pdf

[29] See article 15 of these two BITs.

[30] Morocco–Nigeria BIT, articles 13, 14, 15, 17, 18, 19, 20 and 24.

[31] Morocco–Nigeria BIT, articles 4 and 5.

[32] Morocco–Nigeria BIT, articles 13, 14, 15, 17, 18, 19, 20 and 24.

[33] Morocco–Nigeria BIT, article 27(2)(d).

[34] Morocco–Nigeria BIT, article 27(2)(e).

[35] Morocco–Congo BIT, article 9.

[36] These are the Arab Maghreb Union (AMU), the Common Market for Eastern and Southern Africa (COMESA), the Community of Sahel-Saharan States (CEN-SAD), the East African Community (EAC), the Economic and Monetary Community of Central Africa (CEMAC), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority for Development (IGAD) and the Southern African Development Community (SADC).

[37] Thus, for example, the COMESA Treaty and the CEMAC Investment Treaty.

[38] The following states are members of ECOWAS: Benin, Burkina Faso, Cape Verde, Comoros, Côte d Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Seychelles, Sierra Leone and Togo.

[39] ECOWAS Supplementary Act A/SA.3/12/08 adopting Community Rules on Investment and the Modalities for their implementation with ECOWAS (ECOWAS Community Rules on Investment), article 11.

[40] ECOWAS Community Rules on Investment, article 33(6).

[41] ECOWAS Community Rules on Investment, article 33(6).

[42] The following states are members of the SADC: Angola, Botswana, Comoros, the Democratic Republic of Congo, Lesotho, Malawi, Madagascar, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

[43] Article 28(3)(a) of the SADC Model BIT thus sets out that a state can submit to state-to-state arbitration a claim seeking compensation for an alleged breach of the agreement on behalf of an investor.

[44] SADC Model Bilateral Investment Treaty with Commentary, 2012, article 29, p 55.

[45] SADC Model Bilateral Investment Treaty with Commentary, 2012, article 22, p 41. This section is greatly inspired by the United States of America Model BIT (as is in particular demonstrated by the reference to the appeal mechanism, referred to in the US Model BIT since 2004).

[46] Report: Meeting of Member State Experts on the consideration of the PAIC and AIMEC, November 2016, para 33.

[47] Draft PAIC, article 14(1).

[48] As is well-documented, a number of African countries have been threatened with investment arbitration should they implement the World Health Organization’s recommendations on plain packaging. The example of Togo even made it onto a popular late-night show in the United States of America, in a 2015 episode of Last Week Tonight with John Oliver ( Tobacco ).

[49] Draft PAIC, article 16(4)(a).

[50] Draft PAIC, article 42.

[51] These States are Angola, Eritrea, Libya and South Sudan.

[52] ECOWAS Supplementary Act A/SA.3/12/08 adopting Community Rules on Investment and the Modalities for their implementation with ECOWAS, article 20.

[53] SADC Model Bilateral Investment Treaty with Commentary, 2012, pp. 31-42, articles 13 and 14.

[54] Draft PAIC, article 37.

[55] Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic of Kenya, ICSID Case No. ARB/15/29. The authors would like to note that DLA Piper represented the Republic of Kenya in these proceedings.

[56] See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention_status.html

[57] See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention_status.html

[58] See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Rules_status.html

[59] These three treaties are all signed by Morocco, with Nigeria, Rwanda and Guinea-Bissau. They have yet to come in force.

[60] ECOWAS Community Rules, article 34.

[61] The Commentary of the SADC Model BIT, published in 2012, points out that UNCITRAL is in the process of revising the rules for investor-State arbitration toward this same end.

[62] SADC Model Bilateral Investment Treaty with Commentary, 2012, article 29.17, pp 64–65. Article 18 of this treaty provides for transparency of contracts and payments, in particular payments made to the government, marking a significant drive against corruption.

[63] BSG Resources Limited (in administration), BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v Republic of Guinea (ICSID Case No. ARB/14/22), 17 September 2015, Procedural Order No. 2, available at http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C3765/DC8462_En.pdf. The authors would like to note that DLA Piper represented the Republic of Guinea in these proceedings.

[64] It is in the course of this arbitration that ICSID established an innovative protocol to handle the need to transition between open and closed hearings, as described on the institution’s website. See https://icsid.worldbank.org/en/Pages/resources/ICSID%20NewsLetter/2017-Issue4/Transparency-in-Practice.aspx

[65] Press articles published during the hearings included the following: https://www.telegraph.co.uk/business/2017/06/05/inside-simandou-mining-project-has-cursed-come-near/; https://www.telegraph.co.uk/business/2017/05/24/george-soros-nuts-claims-mining-magnate-beny-steinmetz/; http://m.miningweekly.com/article/billionaire-steinmetz-recovers-from-setback-in-simandou-battle-2017-06-02

[66] Both hearings are available on ICSID’s Youtube Channel. The May 2017 hearings on the merits (opening, examination of witnesses and experts) are available at https://www.youtube.com/watch?v=70r1k0E-JLE. The March 2018 hearings on the handwriting expertise are available at https://www.youtube.com/watch?v=YlrAXAKA-hU&list=PLTPAfLBOjfQIjsQdhKktyn5SGitGpitLT

[67] Maritime International Nominees Establishment v Republic of Guinea, ICSID Case No. ARB/84/4, Award, 6 January 1988. It is important to note that the underlying instrument was an investment contract, not a treaty.

[68] Draft PAIC, Chapter 14 and article 43.

[69] Morocco–Nigeria BIT, articles 13, 14, 15, 17, 18, 19, 20 and 24; Draft PAIC, Chapter 14.

[70] Morocco–Nigeria BIT, article 23; SADC Model BIT, article 20.

[71] Draft PAIC, article 42; ECOWAS Community Rules, article 33.