The Effects on Arbitration of the Arab Spring

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The impact of the Arab Spring across Middle East and North Africa (MENA) was significant. By the end of 2012, leaders had been forced from power in Tunisia, Egypt, Libya and Yemen and civil uprisings and major protests had taken place in Bahrain, Syria, Algeria, Iraq, Jordan, Kuwait, Morocco and Sudan.

At the same time, there has been an increase in the number of arbitrations (both commercial and investor–state) involving MENA parties and states.1 The wave of protests, riots and civil wars that began in Tunisia in December 2010 and spread throughout the Arab world, is often cited as a key contributing factor for the increased participation in arbitration of MENA parties and states. This article considers the impact that the Arab Spring has had on arbitration and may have over the coming years.

Effect on investor–state arbitration

Traditionally, MENA has not generated many arbitrations between foreign investors and host states, perhaps because investment in the region has been in sectors where state-owned companies have a presence, such as energy and construction (thereby enabling aggrieved investors to bring contractual claims). Investors have good reason to avoid bringing claims against states in circumstances where they can bring claims against state-owned entities that have assets to satisfy any award. Statistics from the International Centre for Settlement of Investor Disputes (ICSID) show that states from the region have appeared in only 6 per cent of ICSID cases since the centre opened in 1966.2

However, measures to protect investors and to enable claims to be brought against states are, and have been for some time, in place across MENA. In fact, just as the Arab Spring began in Tunisia and spread throughout MENA, it could be said that the history of modern investor–state arbitration, in part, began in Tunisia. Tunisia was the first state to sign the ICSID Convention on 5 May 1965, followed by the United Kingdom, which signed on 26 May 1965. Since then, most MENA states have signed and ratified the ICSID Convention; the notable exceptions being Iran and Libya.2

Bilateral and multilateral investment treaty protection

There are also a number of investment treaties in the region with investor–state dispute settlement (ISDS) mechanisms, including a number of bilateral investment treaties (BITs); the Agreement for the Promotion, Protection and Guarantee of Investment among Member States of the Organization of the Islamic Conference3(the OIC Agreement); and the Unified Agreement for the Investment of Arab Capital in the Arab States4 (the Arab Investment Agreement).

Bilateral investment treaties (BITs)

MENA states are signatories to a large number of BITs (although a high proportion of intra-MENA BITs are not in force as the ratification procedures have not been conducted). Egypt has been the most active, with 100 BITs, followed by Kuwait, with 75 BITs.5 At the other end of the scale sits Iraq, with only seven BITs.6

These BITs contain a range of ISDS mechanisms. For example, Egypt’s BIT with Switzerland7 provides that disputes may be submitted to the courts of the host state, the Cairo Regional Centre for International Commercial Arbitration (CRCICA); an ad hoc tribunal under UNCITRAL rules; or ICSID. In addition, a number of BITs between Arab League (formerly the League of Arab States) members, such as the Egypt–Jordan BIT, provide for disputes to be heard by the Arab Investment Court.8

The OIC Agreement

The Organisation of Islamic Cooperation (formerly the Organization of the Islamic Conference) is an inter-governmental organisation of 57 countries founded in 1969. The OIC Agreement entered into force on 23 September 1986 and has been ratified by 27 member states. It contains many of the protections commonly found in international investment agreements, such as protection against expropriation, free transfer of capital guaranty and a most-favoured-nation clause (which means investors may be able to rely on more comprehensive protections contained in other treaties entered into by the host state).

Unfortunately, there is a lack of clarity and precedent on the process for bringing a claim under the OIC Agreement. Article 17 of the OIC Agreement provides that, until ‘an Organ for the settlement of disputes arising under the Agreement is established, disputes that may arise shall be entitled9 through conciliation or arbitration’; however no such organ has been established.

The first and only known investor–state arbitration under the OIC was the case of Hesham Al-Warraq v Indonesia10 initiated in 2012, involving a claim arising out of the government’s bailout of a bank in which the claimant had invested. This arbitration was conducted as an ad hoc arbitration under UNCITRAL rules and seated in Singapore.11

In this case, Indonesia argued that article 17 of the OIC Agreement only provided for state-to-state arbitration. However, the Tribunal rejected this interpretation and found that the OIC Agreement permitted investor–state arbitration. In its final award, the Tribunal found that Indonesia’s treatment of the claimant’s investment had breached the fair and equitable treatment protection, although it declined to award damages because it found that the claimant had also breached the OIC Agreement.

Arab Investment Agreement

The Arab League was established in 1945 following the signing of the ‘Charter of the League of Arab States’12 by Iraq, Jordan, Syria, Lebanon and Egypt. It now has 22 members from MENA. The Arab Investment Agreement entered into force in 1981. The substantive protections in the Arab Investment Agreement are similar to those in the OIC Agreement. The Arab League has subsequently adopted an updated investment agreement, known as the 2013 Amendment to the 1980 Arab League Investment Agreement13 (the 2013 Amendment). This update broadens and provides greater clarity on the protections offered to an investor and is expected to enter into force in 2016.

The Arab Investment Agreement provides for the Arab Investment Court to have sole jurisdiction unless otherwise agreed. The 2013 Amendment grants jurisdiction to both the Arab Investment Court and state courts unless otherwise agreed. The Arab Investment Court was established in 1985, however, it was not utilised until 2003 when a Saudi Arabian investor, Tanmiah, brought a claim against Tunisia relating to the sponsorship of the Mediterranean Games held in Tunisia in September 2001.14

Impact of the Arab Spring

Since 2012, there has been an increase in the number of investment treaty arbitrations involving MENA companies and states. It is also clear, on occasion, that investment treaty arbitrations have arisen from the events of the Arab Spring.

Claims against Egypt

A state that has certainly seen an increase in arbitration since the Arab Spring is Egypt. The Egyptian government faced 37 international and domestic arbitration cases worth US$14.3 billion in the three years since the 2011 uprising, in comparison with approximately two cases per year prior to the uprising (according to Ezzat Ouda, the head of the state’s lawsuits authority).15

Eighteen days of mass protests forced Egypt’s president, Hosni Mubarak, to resign in February 2011, after three decades in power. Following Hosni Mubarak’s resignation, the new government in Egypt cancelled many contracts that had been entered into with the former regime and, in some instances, corruption charges were brought against government officials and foreign investors.

These actions have led directly to claims. The first was brought by a Dubai-based property group DAMAC Properties and its chairman, Hussain Sajwani, in 2011.16 In 2006, DAMAC acquired land in the Red Sea resort area of Gamsha Bay. However, only months after the fall of the Mubarak regime, the chairman of DAMAC was convicted in absentia of corruption in relation to the purchase of land and the sale was rescinded. The claim was discontinued in 2014 after a settlement was reached with Egypt.17 A similar claim was brought in 2014 by a German licence plate manufacturer, Utsch.18 This claim, which is still pending, relates to the 2011 conviction in absentia of its CEO for wasting government funds.

Cases have also arisen from the pressure on the Egyptian government to overturn the sale of state assets during Mubarak’s rule. Egyptian courts have, following domestic lawsuits filed by third parties, annulled a number of deals entered into between the state and foreign investors. Such action led to an investor treaty claim being brought by a multinational, Indorama, in relation to the renationalisation of its textile factory.19 That claim for US$156 million was settled in 2015 for US$54 million.20 Egypt has also been engaged in settlement discussions with other investors that were involved in similar privatisation disputes.

With a view to reassuring foreign investors, in 2014 Egypt approved a new law (Law No. 32 of 2014) that restricts the rights of third parties to challenge commercial contracts awarded by the government.21 This responds to the large number of domestic lawsuits that have been filed challenging the legality of public contracts awarded during Mubarak’s regime.

Egypt also made substantial amendments to the Egyptian Investment Law No. 8 of 1997 (the Investment Law) in March 2015 and created three out-of-court forums designed to encourage amicable settlement of investment disputes with the government.22The amended Investment Law also removed the legislative consent to investor–state arbitration, which means investors will need to rely on the consent to arbitration in a treaty or contract as the basis for bringing an arbitration against Egypt.

Despite these changes, the number of claims against Egypt has continued to grow. In January 2016, Al Jazeera registered an ICSID claim under the Egypt–Qatar BIT.23 Al Jazeera is reportedly seeking US$150 million in compensation relating to what it described as a ‘sustained campaign of harassment and intimidation’.24 In September 2013 Al Jazeera had announced its intention to bring a claim against Egypt, stating that Egypt had raised and closed its offices, confiscated equipment, deported correspondents and jammed its transmission.25 Events then took a dramatic turn in December 2013, when three journalists working for Al Jazeera, Australian Peter Greste, Canadian Mohamed Fahmy and Egyptian Baher Mohamed, were taken into custody. In 2014, all three journalists were convicted of aiding a ‘terrorist organisation’ and sentenced to between seven and 10 years’ imprisonment. Peter Greste was subsequently released and deported in February 2015, and Mohamed Fahmy and Baher Mohamed were given a presidential pardon in September 2015.

Claims against Libya

Libya’s Arab Spring was a bloody affair, ending with the killing in 2011 of Muammar Gaddafi. Since then, investor–state claims have been brought against Libya relating to the deterioration in security as a result of the civil war that led to the fall of the Gaddafi regime.

On 20 July 2015, Strabag SE, an international construction and engineering company, filed a claim against Libya under the Austria–Libya BIT.26 Details of the claim have not yet been made public, however, it is understood that Strabag is claiming payment for services under contracts entered into prior to the revolution in Libya and damages for the theft of equipment post-revolution. Strabag had a number of projects in Libya, including a €434 million contract to renew infrastructure in the Libyan city of Tajura.

In June 2015, Tekfen Holding, a Turkish construction company, commenced an ICC arbitration against the Libyan Man-Made River Authority and the Libyan state.27 Tekfen is a 67 per cent owner in a joint venture company that in 2005 was awarded the construction of 380km section of Libya’s Great Man-Made River Project. Tekfen suspended operations in February 2011 following looting of its main worksite in Kufra and evacuated its employees. It appears from announcements made by Tekfen that the dispute involves a contractual claim and a claim under the Libya–Turkey BIT.

Claims against Syria

There had, until recently, been no reports of claims being made against Syria. However, in February 2016 Investment Arbitration Reporter reported that Syria had been found to have breached the Spain–Syria investment treaty after it seized a bank guarantee for a project that had been derailed by the ongoing conflict in Syria and EU sanctions.28

It may be that potential claimants are waiting for a resolution of the current conflict in Syria, the outcome of which may have significant implications under international law. Under international law, if an insurrection movement succeeds and becomes the new government of a state, its actions are attributable to the state and therefore the state would be liable for the damage caused by the revolutionary forces and also the acts of the previous regime.29

General trend

As can be seen from the cases described above, the Arab Spring has created circumstances that have led to investor–state arbitrations, particularly in Egypt. However, the number of reported cases that clearly arise from the Arab Spring is relatively low compared to both the total number of claims brought against MENA countries since 2011 and the number of claims arising from other political and economic events affecting specific countries or regions.

Out of a total of 46 investor–state claims brought since 2011 against states in MENA, less than a quarter of these appear to be directly linked to the Arab Spring. In comparison, the Iran–United States Claims Tribunal (IUSCT), which was established in 19 January 1981 pursuant to the Algiers Accords, has heard over 4,700 cases and ordered payments totalling over US$2.5 billion.30 The IUSCT came into existence as one of the measures taken to resolve the crisis in relations between Iran and the United States of America (US) arising out of the detention of 52 US nationals at the US Embassy in Tehran, which commenced in November 1979, and the subsequent freeze of Iranian assets by the US.

Another useful comparison is the Argentinian financial crisis in 2001. Following the Argentinian financial crisis, 37 claims were filed against Argentina in the space of five years, 31 of which related to measures introduced by the Public Emergency and Exchange Regime Reform Act enacted in January 2002.31 The number of claims against MENA states is still relatively modest in comparison, but new cases are still coming to light, and there is the prospect of more cases in the pipeline.

Other factors

There has certainly been a steady increase in investor treaty claims involving MENA states and parties since the Arab Spring. However, it would appear that the Arab Spring is one of several factors that have contributed to increased participation in investment treaty arbitration.

A factor that is likely to have increased the growth in investment treaty arbitration involving MENA states and parties is the general increase in the inflow and outflow of investment over the past decade. There has been a decade-long surge in foreign investment into MENA, focusing largely on the hydrocarbon sector.32 In more recent years, there has also been an unprecedented level of investment by entities from the region in other parts of the world. The Gulf states, in particular, have invested considerably abroad through state entities or investment funds. That has, no doubt, impacted on the number of claimants from the region involved in investment-treaty arbitration.

Another factor for the growth in MENA-related claims is treaty coverage and treaty awareness. As has been the case globally, the growing number of BITs and a rising awareness of the possibility of treaty arbitration where investments have gone awry, has led to a sharp increase in the number of claims in recent years. There is an apparent increased willingness on the part of investors to make use of their right to enforce the protections investment treaties provide them.

Future impact of the Arab Spring on investor–state arbitration

While it is expected that investor–state cases will continue to arise in the near future, it seems unlikely that the Arab Spring will lead to the flood of investment treaty cases that a number of commentators anticipated. This may be because the main focus of the Arab Spring has been on regime change and political reform rather than the nationalisation of foreign investments.

It also appears unlikely that states will become flooded with so many claims that they seek to renounce existing treaties. The Arab Spring has not slowed the spread of international investment agreements entered into in the MENA region. As noted above, the League of Arab States adopted an updated investment agreement in 2013 and since the start of 2011 MENA countries have signed 79 BITs (although many of these are yet to enter into force). Worldwide a total of 131 BITs were signed in the same period. Over this period, the United Arab Emirates has signed 11 BITs and Kuwait has signed 10 BITs. Japan has been particularly active in the region, signing BITs with Mozambique, Kuwait, Saudi Arabia, Iraq, Oman and Iran.

Effect on commercial arbitration

In recent years there has been an increase in the number of MENA-based parties that are willing to include arbitration clauses in their contracts. Not only has this been driven by the inherent benefits of arbitration, but also by recent developments in the region which suggest that it is becoming a more friendly place to conduct arbitration and enforce arbitral awards. This, as a result, has meant that parties have a greater confidence in arbitration as a means of resolving disputes and, in particular, arbitration conducted in MENA states.

Prior to the Arab Spring, MENA countries were experiencing a growing trend towards modernisation of commercial arbitration laws and a maturing of the arbitration market. Iran ratified the New York Convention in 2001, followed by Qatar in 2002 and the United Arab Emirates in 2006. In 2008 Morocco and Syria both enacted standalone arbitration laws, drawing on the UNCITRAL Model Law. Prior to the outbreak of civil war in Libya, a draft Arbitration Law had been released which incorporated elements from the Unified Arab Code of Civil Procedure, the UNCITRAL Model Law and Egyptian, Tunisian and French Law.33

While the Arab Spring may have set back law reform in Libya, elsewhere in the region the modernisation trend continued. In 2012 Saudi Arabia enacted a new arbitration law based on the UNCITRAL Model Law.34 The law provides parties with greater freedom to determine the procedure of their arbitration and limits the intervention of the courts.

In 2015 Bahrain enacted a new stand-alone arbitration law that directly adopts the UNCITRAL Model Law.35 There are also reports that Iraq is reviewing its arbitration law.36 However, while Iraq ratified the ICSID Convention in 2015, it, together with Libya and Yemen, are not yet signatories to the New York Convention.

The past decade has also seen new arbitration centres open in MENA states. In 2006 the Qatar International Center for Conciliation and Arbitration was established. In 2008, the DIFC-LCIA Arbitration Centre was launched (a partnership between the Dubai International Financial Centre and the London Court of International Arbitration). In 2009 the Bahrain Chamber for Dispute Resolution was established, in partnership with the American Arbitration Centre. In Abu Dhabi, a new financial free zone, the Abu Dhabi Global Market, is being established, which has its own court and arbitration law.

In addition, more established arbitration centres in the region, such as the Dubai International Arbitration Centre (DIAC) and CRCICA have also seen an increase in their caseload.

Claims arising out of the Arab Spring

While disputes arising out of the Arab Spring has been a hot topic at arbitration conferences in the MENA region, the confidential nature of commercial arbitration means that, in comparison with investment treaty claims, details of specific commercial arbitrations that have arisen as a result of the Arab Spring are harder to identify. One example that is in the public domain is the ICC arbitration initiated in 2011 by East Mediterranean Gas EMG, an Egyptian joint venture company that supplied gas to Israel Electric through the Arish-Ashkelon pipeline (a pipeline that connects the Arab Gas Pipeline in Egypt with Israel and Jordan).37 Following the fall of the Mubarak regime there were several attacks on the pipeline causing interruptions to supply. EMG sought damages against two Egyptian state-owned companies in relation to failure to deliver gas and threatened termination of the contractual relationship. In December 2015, the tribunal ordered the two Egyptian state entities to pay over US$288 million to EMG and over US$1.7 billion to Israel Electric. Two treaty claims have also been launched by EMG shareholders against Egypt.

Statistics from certain regional arbitration centres also suggest that the number of commercial arbitrations have increased since the Arab Spring. CRCICA, which has been administering arbitrations for over 30 years, saw a spike in the number of cases filed after the Arab Spring. In 2012 a record 78 cases were filed, 66 cases had been filed in 2011. In 2013, 73 cases were filed and 74 were filed in 2014. While details of the claims are not available, the statistics do reveal that the disputes arose from a broad range of fields. Construction, a sector that has traditionally generated a large number of international arbitrations, has only accounted for around 15–20 per cent of cases at CRCICA since 2011.

However, the increase in the number of cases following the Arab Spring does not, to date, appear to be as significant as the increase in caseload that was experienced by certain arbitration institutions, particularly in the UAE, following the collapse of the property market and associated halt on construction projects in 2008 and 2009. In 2009, a record 292 cases were filed at DIAC, up from 100 the previous year. There was another significant increase the following year, with 431 cases filed in 2010. The number peaked at 440 cases in 2011.

Future impact of the Arab Spring on commercial arbitration

It is expected that arbitration proceedings will continue to arise in the near future as a result of the events of the Arab Spring. It is the case that war, regime change and political instability provides fertile ground for commercial disputes. Parties have, as a result of the Arab Spring, found themselves in a significantly different legal, economic and security landscape. As a result, obligations may have become difficult if not impossible to perform, and the parties’ economic bargain may have fundamentally changed. Commercial disputes arising from the application of force majeure, the civil law concept of economic hardship and the imposition of sanctions have arisen and are likely to arise in the future. The MENA region is also a region where state-owned companies have a presence, in industries such as energy and construction and foreign investors therefore often have the option of bringing contractual claims (not only investment treaty claims) when they suffer losses.

However, while the Arab Spring has had an impact on formal commercial arbitration proceedings and is expected to do so in the near future, the ease of enforcement of arbitration awards in a number of MENA states remains an issue. The MENA region generally is becoming a more friendly place to conduct arbitration but it remains the case that in some states enforcement is problematic and in others it is largely untested. There is, in some jurisdictions, limited reported precedent of enforcement of arbitral awards so as to determine the extent to which parties seek to avoid enforcement and of the approach of local courts to such attempts. The level of confidence that parties have in the arbitration process and the enforceability of any resulting award is likely to be an important factor in whether disputes arising from the Arab Spring progress to formal arbitration proceedings.


The Arab Spring has had profound social and political implications in the MENA region and has also had a tangible impact on both investor–state and commercial arbitration. However, to date the flood of cases directly resulting from the Arab Spring that many anticipated has not materialised.

Nevertheless, the MENA region remains politically volatile and many foreign businesses in Arab Spring countries will have lost revenue or their investments as a result of political and social unrest, sanctions or the breakdown of local infrastructure and transport. It is likely that commercial arbitration and investor–state cases will continue to be commenced as a result. However, the number of cases that are commenced and proceed to a substantive hearing will depend, in part, on the attitude that governments wish to take, going forward, to foreign investment and that local courts take when called upon to enforce arbitration awards.


  1. See ICC Court of Arbitration Bulletins 2010-2014, ICC Court Dispute Resolution Bulletin 2015, and UNCTAD Investment Policy Hub, available at:
  2. ICSID Case Load Statistics, issue 2016-1, p. 11.
  3. See ICSID Database of Member States, available at:
  4. Agreement for the Promotion, Protection and Guarantee of Investment among Member States of the Organization of the Islamic Conference (adopted by resolution 7/12-E of the Twelfth Islamic Conference of Foreign Ministers held in Baghdad, Iraq, on 1–5 June 1981, entered into force 23 September 1986).
  5. Unified Agreement for the Investment of Arab Capital in the Arab States (signed 26 November 1980, entered into force 7 September 1981) League of Arab States, Economic Documents, No. 3.
  6. See UNCTAD Investment Policy Hub, available at:
  7. Ibid.
  8. Agreement between The Swiss Confederation and The Arab Republic of Egypt on the Promotion and Reciprocal Protection of Investments (7 June 2010).
  9. Agreement between the government of the Hashemite Kingdom of Jordan and the government of the Arab Republic of Egypt on the Mutual Promotion and Protection of Investments (8 May 1996).
  10.  The equivalent phrase in French and Arabic versions translates in English to ‘resolved’.
  11. Hesham Talaat M Al-Warraq v the Republic of Indonesia, UNCITRAL, Final Award (15 December 2014).
  13. Charter of the League of Arab States (adopted 22 March 2015).
  14. Unified Agreement for the Investment of Arab Capital in the Arab States (Amended) (adopted January 2013).
  15. Tanmiah for Consultancy Management & Marketing v Tunisia, Arab Investment Court, 1/1 Q, IIC 238 (12 October 2006).
  16. Editorial, ‘Egypt has faced $14 bn worth of cases from investors since 2011: Judge’, ahramonline (22 April 2014), available at:
  17. Hussain Sajwani, DAMAC Park Avenue for Real Estate Development S.A.E., and DAMAC Gamsha Bay for Development S.A.E. v Arab Republic of Egypt, ICSID Case No. ARB/11/16.
  18. See Editorial, ‘Egypt says disputes with Dubai’s DAMAC are resolved’, Reuters (Cairo, 15 May 2013; ICSID Case Details, ICSID Case No. ARB/11/16, available at:
  19. Utsch M.O.V.E.R.S. International GmbH, Erich Utsch Aktiengesellschaft, and Helmut Jungbluth v Arab Republic of Egypt, ICSID Case No. ARB/13/37.
  20. Indorama International Finance Limited v Arab Republic of Egypt, ICSID Case No. ARB/11/32.
  21. Sebastian Perry, ‘Egypt sews up textile dispute’, Global Arbitration Review (14 July 2015), available at:
  22. Law No. 32 of 2014 Regulating Certain Procedures for Challenging State Contracts, issued 22 April 2014.
  23. Law No 17 of 2015, issued on 12 March 2015.
  24. Al Jazeera Media Network v Arab Republic of Egypt (ICSID Case No. ARB/16/1).
  25. Al Jazeera Media Network press release, ‘Al Jazeera instructs lawyers over Egyptian arrests, attacks and jamming’, 12 September 2013, available at:
  26. Ibid.
  27. Strabag SE v Libya, ICSID Case No. ARB(AF)/15/1.
  28. Tekfen Holding A.S. press release, ‘Tekfen Construction’s Libya Project’, 18 June 2015.
  29. Luke Eric Peterson, ‘Investigation: Syria held liable for investment treaty breach after authorities seized bank guarantee for a project that was derailed by conflict and sanction’, IAReporter, 1 February 2016.
  30. See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, article 10.
  31. U.S. Department of State, ‘Iran-U.S. Claims Tribunal’, available at:
  32. See Ricardo Ortiz, ‘The Bilateral Investment Treaties and the cases at ICSID: The Argentine experience at the beginning of the XXI century’, available at:
  33. MENA-OECD Investment Programme, ‘Draft Background Note: Recent FDI Trends in the MENA Region’, December 2014.
  34. See Abdul Hamid El Ahdab and Jalal El-Ahdab, Arbitration with the Arab Countries, (Kluwer Law International 2011), p. 158.
  35. Royal Decree No. M/34 concerning the Approval of the Law of Arbitration, issued 16 April 2012.
  36. Law No. 9 of 2015 on Arbitration, issued 5 July 2015.
  37. See Noor Kad, ‘Between Iraq and a Hard Place’: The problem of non-ratification of the New York Convention in Baghdad’, Kluwer Arbitration Blog, 18 March 2014, available at:
  38. Douglas Thomason, ‘Israel wins gas supply claim against Egypt’, Global Arbitration Review, 7 December 2015, available at:

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