Despite the slowdowns or recessions experienced in 2016 by the largest economies in the sub-Saharan region, Africa remains one of the world's most dynamic continents in terms of growth and foreign investment.2 This has been fuelled in particular by energy, natural resources and infrastructure in sub-Saharan Africa. Encouragingly, in 2014 and 2015 sub-Saharan Africa was home to five of the 10 most improved countries for doing business.3
The number of international arbitrations regarding African projects or parties, in a broad range of sectors, is significant. According to the International Chamber of Commerce (ICC), more than one-third (35 per cent) of all state parties in ICC arbitrations are African states.4 There has also been an approximately 50 per cent increase in the number of participating parties from both North and sub-Saharan Africa in 2016.5 Nigeria achieved a new statistical record with 30 participating parties.6 Likewise, there has been an increase in the percentage of London Court of International Arbitration (LCIA) cases involving parties from Africa. In 2016, 7.9 per cent of all LCIA parties were African, up from 6.4 per cent the previous year and 4.5 per cent in 2011.7
International arbitration is frequently the preferred dispute resolution method for international parties doing business in Africa, offering investors the benefit of having their disputes determined by independent and competent arbitrators according to rules that are both predictable and flexible, and with the comfort of enforceable awards. Investors are giving increased consideration to whether the target state for investment is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and whether it has adopted the Model Law on International Commercial Arbitration (Model Law).
The purpose of this chapter is to provide an overview of the practice of resolving disputes through international arbitration in Africa. This is evidently a challenge, not least because Africa is not unitary and comprises 54 different countries with hundreds of languages being spoken. A further divide inherited from colonial years exists between countries whose legal system is linked to the civil law (mostly France and Belgium) and those linked to the common law (mostly the United Kingdom). The first section below provides an overview of arbitration in Africa, while the second and third sections examine recent developments in anglophone and francophone Africa respectively. The final section provides highlights of the recent developments regarding investment treaty arbitrations in Africa.
II OVERVIEW OF ARBITRATION IN AFRICA
Thirty-six African states are now parties to the New York Convention,8 thereby providing investors in these jurisdictions with the assurance that arbitral awards will - or at least should - be recognised and enforced in any of the 157 state parties to the New York Convention. Significantly, these 36 African states include Africa's three largest economies (Nigeria, South Africa and Egypt), whose combined GDPs in 2016 were in excess of US$1.1 trillion.9 In August 2016, Angola became the latest African state to become a party to the New York Convention. Africa is, however, the continent with the highest proportion of countries that are not parties to the New York Convention.10 Consequently, investors will continue to encounter difficulties in attempting to enforce foreign awards in those countries. Those states that are not constrained by the limited grounds of refusal in Article V of the New York Convention may impose their own more stringent criteria.11
Ten African states have adopted the UNCITRAL Model Law.12 The Model Law provides a reliable and well-structured domestic arbitration regime that is an important consideration for investors in Africa. For example, the Model Law provides that domestic courts can only refuse to enforce an award in limited circumstances. The domestic arbitration laws of a state are particularly important where investors are considering the state as a possible choice of seat for their arbitration. In those circumstances, where the seat may determine the procedural law of the arbitration, the reliability of domestic laws will be key. As the arbitration regimes of African states develop further,13 foreign investors may seat their arbitration more frequently in an African state, provided they have sufficient confidence in its judiciary. For large projects, however, the seat of arbitration retained by foreign businesses is still often placed outside the African country. Investors are likely to continue to seek protection for particularly large-scale investments through a traditional seat of arbitration such as Paris or London, for instance, under the auspices of well-established international arbitration institutions such as the ICC or the LCIA.
Some regional harmonisation also exists, the most important example being OHADA (see footnote 12), a mainly francophone international organisation that groups together 17 African states.14 The OHADA treaty includes a Unified Arbitration Act (UAA) and created a Common Court of Justice and Arbitration (CCJA) in Abidjan.
When negotiating arbitration clauses, investors are increasingly giving consideration to agreeing to an onshore arbitration with the logistical benefits this provides in obtaining the relevant documentation and securing the attendance of witnesses. As a consequence, there has been a steady growth in the use of regional arbitral institutions. By the end of 2015, 1,070 cases had been registered at the Cairo Regional Centre for International Commercial Arbitration (CRCICA).15 Several new arbitration centres have also been created, including most recently in 2015 the China Africa Joint Arbitration Centre established in Johannesburg, which is aimed at resolving disputes between China and African states. The LCIA-Mauritius International Arbitration Centre established in 2011 is committed to offering an equivalent service to the LCIA in Africa. The Kigali International Arbitration Centre in Rwanda was established in the same year. The Nairobi Centre for International Arbitration, established in 2013, published its arbitration and mediation rules in December 2015. The Lagos Court of Arbitration, established in 1989, amended its Rules in 2013 and the Lagos Chamber of Commerce International Arbitration Center, incorporated in 2002, was launched on 14 November 2016.16 A task force has also been established to set up the Djibouti International Arbitration Centre.17
III ANGLOPHONE AND COMMON LAW JURISDICTIONS
Twenty African states, including South Africa, Nigeria, much of East Africa and parts of West Africa, have legal systems based at least in part on English common law.18 Nine of these states are members of the Common Market for Eastern and Southern Africa (COMESA), an organisation of 19 states committed to ‘developing their natural and human resources for the good of their people'.19 The 470 million people under the COMESA umbrella, accounting for an export bill of US$112 billion, benefit from a marketplace that includes a free trade area, a customs union and trade promotion. Article 28 of the COMESA Treaty provides that the COMESA Court of Justice shall have jurisdiction to hear and determine any matter arising from an arbitration clause conferring jurisdiction, as well as disputes submitted by Member States. In March 2016, the judges of the COMESA Court of Justice completed a training programme in dispute resolution and dispute settlement that was preceded in June 2014 with a training programme in international arbitration.
Anglophone states are respectful of the system of binding precedent and have the ability to call upon a rich body of common law jurisprudence. These states may indicate through arbitration-related court judgments that they are arbitration-friendly jurisdictions. Nigeria provides a recent positive example. In February 2014, the Nigerian Court of Appeal refused to grant an injunction to restrain arbitration proceedings, finding that the domestic arbitration legislation provided only very limited circumstances in which a domestic court could intervene.20 The Court of Appeal followed its 2013 decision in which it held that domestic legislation does not empower a court to grant an injunction to stay arbitral proceedings.21 These are positive indications of the reluctance of the Nigerian courts to interfere in the enforcement of foreign arbitral awards.
However, the picture remains mixed across anglophone Africa. For example, recent attempts to enforce a Stockholm Chamber of Commerce (SCC) award in Kenya suggest that it is not always possible to predict how a local court will approach the enforcement of foreign arbitral awards. In that arbitration, the tribunal found in favour of a Tanzanian government authority in its dispute with a Kenyan construction company, just as the Tanzanian Disputes Resolution Board had done at an earlier stage in their dispute.22 The Kenyan High Court, however, refused to enforce the award, citing public policy grounds.23 The High Court found that, although the parties had agreed that their dispute would be governed by Tanzanian law, the SCC tribunal had applied English law and as such, enforcement of the award would be contrary to the public policy of Kenya and was therefore not enforceable. The Tanzanian authority appealed to the Kenyan Court of Appeal, which held that it did not have jurisdiction over the matter. According to the Court of Appeal, the only ‘competent court' in Kenya with the power to recognise and enforce arbitral awards is the High Court, with no further right of appeal.24
This is not the only example of an international arbitration award not being enforced. It has been reported that in 2014, the Tanzanian High Court granted an interim order on an ex parte basis, staying the enforcement of an International Centre for Settlement of Investment Disputes (ICSID) award. The reasons for the Court ordering this stay have not yet been made public, but it may be that investors feel less confident in their abilities to enforce foreign arbitral awards in Tanzania as a result of this decision.25
IV FRANCOPHONE and CIVIL LAW JURISDICTIONS
There are two main sub-regions here: northern Africa (essentially the Maghreb plus Egypt), as well as francophone western and sub-Saharan Africa, with many of the countries in the last two regions sharing a common adherence to OHADA.
Arbitration practice in northern Africa is somewhat disparate. Arbitration is a common dispute-resolution mode in Algeria and Egypt, whereas it is less so in the rest of that sub-region. It is noteworthy that, as far as domestic courts are concerned, Libyan courts are traditionally hostile to arbitration. All countries offer common features, such as a broad agreement on the validity of the Kompetenz-Kompetenz principle, which allows arbitral tribunals to determine their own jurisdiction. Although judicial intervention in the arbitration process is generally also supposed to be quite limited, Libyan law offers for instance broad grounds on which an arbitral award may be annulled that are similar to those applicable to domestic judgments. The other countries of the region are characterised by less stringent legislation concerning the enforcement of arbitral awards. They all recognise the requirement to file an application for exequatur with the relevant court as a precondition for enforcement. Domestic courts in Egypt adopt a rather enforcement-friendly approach, including against the state. Some other countries, such as Tunisia and Libya, are still reluctant to allow the enforcement of arbitral awards against the state.
Each of the northern African countries have distinct legislation on arbitration. They all make a distinction between domestic and international arbitration, however, in line with the traditional French approach. Another common feature is the increasing awareness of legislators concerning arbitration as an efficient dispute resolution mechanism to be promoted. With the exception of Libyan law, the main source of inspiration is again the Model Law.
Northern African countries are also parties to many arbitration-related conventions, mostly related to the rest of the Arab region, such as the Riyadh Agreement on Judicial Cooperation, the Amman Convention on International Commercial Arbitration, and the Unified Agreement for the Investment of Arab Capital in the Arab States.
Northern African countries' legislation is more specific on the definition of arbitration agreements. For instance, Article 1007 of the Algerian Administrative and Civil Procedure Code defines an arbitration clause as an agreement by which the parties to a contract dealing with rights of which they can freely dispose commit to submit disputes that may arise in relation to this contract to arbitration.26 Arbitration clauses must be stated in writing and provide for the nomination of the arbitrator or for the modalities of their appointment.27 The requirement of an arbitration agreement to be in writing is common to all of the northern African countries. Algerian law provides for the autonomy of arbitration agreements, but only for international arbitration.28 It is also worth noting that Libyan law provides that arbitration agreements should expressly determine the subject matter of the dispute to be determined by arbitration.
The OHADA UAA is extremely important in OHADA countries. The UAA is modelled on international arbitration instruments, and in particular the Model Law. It makes no distinction between domestic and international arbitration. It creates a unified dispute resolution system under the aegis of the CCJA, which plays an important role in fostering a harmonised approach to OHADA business law. There is room in the UAA for local arbitration institutions and ad hoc arbitration. The CCJA, which is officially the supreme court of the OHADA contracting states, combines a judicial and an arbitral role.
Even for OHADA contracting states, domestic arbitration laws continue to apply with respect to issues that are not addressed in the UAA. However, according to Advisory Opinion of the CCJA No. 001/2001/EP of 30 April 2001, domestic provisions on arbitration that conflict with the UAA are deemed revoked and therefore of no effect.
Unlike what is found in northern African countries, in the UAA, little room is made for the regime of arbitration agreements. Pursuant to Article 23 of the OHADA Treaty, an arbitration agreement has the effect of depriving domestic courts of their jurisdiction if a dispute comprised in the scope of the arbitration agreement is brought before them.29 Article 13.4 of the UAA is similar.
The CCJA Arbitration Rules provide for a rather classical mechanism for the organisation of the proceedings and bear some similarities to the Arbitration Rules of the ICC. In particular, Article 23.1 of the Rules provides that the award is ultimately submitted to the scrutiny of the CCJA, which may result in modifications being proposed to the arbitral tribunal.30
Arbitral awards rendered in accordance with the CCJA Rules have the same binding force within the territory of OHADA contracting states as judgments of the states' domestic courts.31 In the event of the absence of voluntary compliance with an award, its enforcement may be pursued through an application for exequatur by the winning party with the CCJA. According to Article 30 of the CCJA Rules, the order of the court to this effect makes the award enforceable in all OHADA contracting states.
The award can also be subject to three kinds of recourse:
- a a challenge regarding validity, which is the equivalent of a request to set aside the award;
- b a recourse for revision aimed at allowing the revision of the award in cases where new elements or facts were discovered by one of the parties that may have altered the decision of the arbitral tribunal had they been disclosed in due course; and
- c a third-party opposition that allows third parties who were not called before the arbitral tribunal and whose rights are adversely affected by the decision to challenge the award.
However, OHADA arbitration may be affected by a recent decision that has raised some concern in the arbitration community. The CCJA recently annulled an award against the Republic of Guinea on the ground that the arbitrators had breached their mandate by negotiating directly with the parties over their fees instead of using the schedule of fees prescribed by the rules.32 This was despite the fact that the parties had reportedly agreed to increase the amount of fees of the arbitrators (from an initial €60,000 to €450,000 in total for a €50 million dispute) and that the Secretariat of the CCJA had also reportedly agreed with such procedure in the first place. The decision was criticised by many, including - and this is quite unusual - the arbitral tribunal itself, notably because this annulment was against the consensual nature of arbitration.33 The presence of a Guinean judge on the CCJA annulment panel can also be seen as being problematic in the circumstances.34 On 9 June 2016, a US district court of the District of Columbia refused Getma's request to recognise and enforce the award against Guinea despite the set aside decision.35 In parallel, as Guinea had refused to pay its share of the fees, the arbitral tribunal commenced proceedings against it in French courts. In a decision dated 1 February 2017, the French Court of Cassation upheld a finding of the Paris Court of Appeal that allowed the tribunal to recover the outstanding portion of the arbitrators' fees it had negotiated with the parties.36
A partnership agreement signed on 23 June 2016 between OHADA and the International Court of Arbitration of the ICC should help bring more transparency into this system and enhance cooperation between the two organisations, as well as promoting, professionalising and standardising the practice of arbitration in the 17 Member States of OHADA.37
V INVESTOR-STATE DISPUTES
The reality of investing in Africa is that investors must deal with political and economic risk and instability, as well as deeper problems.38 In terms of political risk, bilateral investment treaties (BITs) can be a cost-effective method of minimising that risk. BITs will typically contain provisions that, for example, guarantee compensation for an expropriation, and ensure fair, equitable and non-discriminatory treatment of investments. In addition, many BITs will provide for disputes to be resolved through ICSID, under the umbrella of the 1965 Washington Convention, which has an enhanced enforcement regime.
As African states seek to attract foreign investment by providing greater protection for investors, the number of BITs to which African states are party continues to increase. African states have now concluded more than 400 BITs with developed countries. Egypt alone has entered into more than 100 BITs throughout the world. Moreover, African states are continuing to negotiate BITs with other African states. For example, in the past 15 years Mauritius has signed or ratified 19 BITs with other African states.
African states continue to show strong support for ICSID as a forum for resolving disputes. Forty-five have ratified the ICSID Convention,39 while a further three have signed but not ratified it,40 leaving only Angola, Djibouti, Eritrea, Equatorial Guinea, Libya and South Africa as non-parties - significantly fewer than the number of African states that are not parties to the New York Convention.
To date, 33 African states have been involved in ICSID proceedings. Additionally, a significant proportion of ICSID's caseload is from Africa. According to ICSID, 25 per cent of all state parties in ICSID arbitrations are African states.41 2016 has seen a decrease in the number of ICSID cases involving sub-Saharan African states compared with 2015.42 Of all the African states, Egypt has had the largest number of claims (29) registered against it, with the most recent case being registered in November 2016.43
However, two of Africa's largest economies, South Africa and Nigeria, have demonstrated a reluctance to enter into BITs as they prioritise national sovereignty and public policy. South Africa has not signed or ratified a new BIT for the past seven years, and in that time it has terminated existing BITs with Austria, Belgium, Denmark, France, Germany, Luxembourg, the Netherlands, Spain, Switzerland and United Kingdom. South Africa's current intention is to protect foreign investments through domestic legislation, a common alternative approach in many African states. On 13 December 2015, South African President Jacob Zuma signed the Protection of Investment Act into law. Although the Act applies to both foreign and domestic investors, it is likely to create uncertainty for the former because it does not provide protections that are typically included in BITS, such as obligations in respect of expropriation and fair and equitable treatment. Moreover, unlike a BIT, South Africa's domestic legislation may be unilaterally amended by the government at any time. This is in contrast with the situation under a terminated BIT that, through a ‘sunset clause', typically provides protection for a period of between 10 and 15 years. On the other hand, investors from countries such as the US, which have never previously had a BIT with South Africa, will benefit from protections contained within the Act, including for physical security, fair administrative treatment and a national treatment standard.
Surprisingly, Africa's largest economy, Nigeria, has been less willing than its African neighbours to enter into BITs. Nigeria only has 15 BITs currently in force, none of which are with the world's three largest world economies - the United States, China and Japan. At the 2014 World Investment Forum, Nigeria stated that the state's right to regulate in the public interest and to preserve public policy prevailed over economic losses to investors and expressed concern at the potential for increased exposure to claims.44 Accordingly, Nigeria currently appears reluctant to enter into further BITs.
In terms of ongoing investor-state arbitrations, the most significant is that concerning Uganda's introduction of retrospective taxation, which must now be considered a key risk of investing in that state. In March 2015, Total E&P Uganda announced that it had filed a request for arbitration before ICSID concerning stamp duty imposed by Uganda on the acquisition of Total's interest in oil blocks.45 This follows a February 2015 UNCITRAL award in favour of Uganda in its dispute with Canada's Heritage Oil, a claim filed under a production sharing agreement following the government's decision to impose a 30 per cent capital gains tax on the company's sale of two oil blocks to UK company Tullow Oil.
Another recent development has been the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration (Rules on Transparency), which came into effect on 1 April 2014 and were signed in Mauritius. This treaty comprises a set of procedural rules that provide for transparency and accessibility to the public of treaty-based investor-state arbitration conducted under the UNCITRAL Arbitration Rules. The Rules on Transparency include provisions on the publication of documents, open hearings, and the possibility for the public and non-disputing treaty parties to make submissions, while also providing robust safeguards for the protection of confidential information. They apply to all treaties concluded after 1 April 2014 unless the parties ‘opt out'. The Rules on Transparency will also apply to treaties concluded before this date if the state or the parties ‘opt in'. Through the Mauritius Convention on Transparency, states have the opportunity to agree, subject to reservations, that the Rules on Transparency will apply to all arbitrations arising under their investment treaties concluded before 1 April 2014. Ten states signed the Mauritius Convention in March 2015, including Mauritius itself, with six more signatories following in 2015, one in 2016 and one in the first months of 2017. This Convention will come into force on 18 October 2017 following its ratification by Mauritius, Canada and Switzerland.
In April 2016, a divided UNCITRAL arbitral tribunal issued the first known arbitral award under the Finance and Investment Protocol of the Southern African Development Community (SADC),46 ruling that Lesotho committed a denial of justice in relation to its involvement in the decision of SADC Member States to ‘suspend and then shutter' a standing SADC tribunal empowered to hear claims by individuals and companies against SADC states.47
Recently on 21 February 2017, an ICSID tribunal found Egypt in breach of the US-Egypt BIT in a politically sensitive case finding arising from pipeline attacks during the Arab Spring that interrupted the Egyptian gas supply to Israel.48 Among other treaty breaches, the tribunal ruled that Egypt breached its obligation to protect and secure the pipelines: if the state could not have prevented four early militant attacks on the pipeline, these should have served as ‘a warning' that further attacks might ensue. It also held that Egypt's security forces were responsible for failing to take preventive or reactive measures and thus to protect the claimant's investment. Aside from Egypt and in the same context, a new wave of at least a dozen foreign investors is now pursuing investment treaty-based claims against the state of Libya under the ICC or ad hoc rules in relation to the deterioration of the security situation following the uprisings of 2011.49
VI OUTLOOK AND CONCLUSIONS
Given the current level of investment flowing into Africa, there is little doubt that the number of disputes involving African projects or African parties will continue to rise in future years. It is encouraging to see that most African countries are parties to the ICSID Convention. However, more effort is required to increase the number of African states that are parties to the New York Convention, as well as ensuring a state's correct application of the New York Convention. The holding in 2016 of the congress of the International Council for Commercial Arbitration in Africa (Mauritius) for the first time since its creation in 1963 is a sign of the times, and should help to foster the spirit of international arbitration in Africa. Speakers were optimistic about the development of international arbitration in Africa despite the difficulty of enforcing awards against states and state entities. A call was also launched for the appointment of more African arbitrators and for the ‘re-localisation' of arbitration on African soil.50 In this regard, Africa International Legal Awareness, a non-profit body training African lawyers in investment treaty law and international arbitration, unveiled an online directory featuring African practitioners with expertise in these fields in March 2016.51 Work remains to be done, however, to bring African judiciaries in line with international best practices regarding non-interference in the arbitral process and enforcement of international awards.
1 Michelle Bradfield, Jean-Christophe Honlet and Liz Tout are partners and Marie-Hélène Ludwig and Lionel Nichols are associates at Dentons.
2 GDP is expected to grow by 3.5 per cent in 2017 in Africa (IMF DataMapper, 2017). The International Monetary Fund estimated in January 2016 that most countries in sub-Saharan Africa would experience a gradual increase in growth (International Monetary Fund, World Economic Outlook, Subdued Demand, Diminished Prospects, January 2016), but noted in October of the same year that the largest economies in sub-Saharan Africa (Nigeria, South Africa, Angola) were experiencing sharp slowdowns or recessions as lower commodity prices interacted with difficult domestic political and economic conditions (International Monetary Fund, Subdued Demand: Symptoms and Remedies, October 2016).
3 The sub-Saharan economies that showed the most notable improvement in performance on the Doing Business indicators for 2014/15 were Uganda, Kenya, Mauritania, Senegal and Benin (World Bank, Doing Business 2016), and Kenya remained on the list for 2015/2016 (World Bank, Doing Business 2017).
4 ICC Dispute Resolution Bulletin, 2015 - Issue 1.
5 ICC News, ‘ICC reveals record number of new Arbitration cases filed in 2016', 18 January 2017.
7 LCIA, Facts and Figures 2016.
8 Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central African Republic, Comoros, Democratic Republic of the Congo, the Ivory Coast, Djibouti, Egypt, Gabon, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Mali, Mauritania, Mauritius, Morocco, Mozambique, Niger, Nigeria, Rwanda, Sao Tome and Principe, Senegal, South Africa, United Republic of Tanzania, Tunisia, Uganda, Zambia and Zimbabwe.
9 International Monetary Fund, World Outlook Database, October 2016.
10 This includes Chad, Gambia, Equatorial Guinea, Ethiopia, Eritrea, Guinea-Bissau, Libya, Malawi, Namibia, the Republic of the Congo, Sierra Leone, Somalia (which announced in June 2016 its intention to accede to the New York Convention: Alison Ross, ‘Somalia plans reforms to arbitration framework', Global Arbitration Review, 3 June 2016), Sudan, South Sudan, the Seychelles, Swaziland and Togo.
11 For example, in Ethiopia and Sudan, foreign awards must comply with the respective country's moral values before they can be enforced: Steven Finizio and Thomas Führich, ‘Africa's Advance', Commercial Dispute Resolution News, May-June 2014.
12 Egypt, Kenya, Madagascar, Mauritius, Nigeria, Rwanda, Tunisia, Uganda, Zambia and Zimbabwe. The Uniform Arbitration Act of the Organisation for the Harmonization of Business Law in Africa (OHADA) is also inspired by the Model Law. South Africa started a legislative procedure aimed at adopting the Model Law and modernising the procedure for the enforcement of foreign awards with a bill published on 15 March 2017 in the Government Gazette and presented to the National Assembly on 21 April 2017 (Tom Jones, ‘South Africa mulls Model Law', Global Arbitration Review, 21 April 2017).
13 Only two African states (Sierra Leone and South Sudan) do not have discernible law applicable to arbitration (Arbitration Institutions in Africa Conference 2015).
14 Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Republic of the Congo, the Democratic Republic of the Congo, the Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Togo.
15 CRCICA Annual Report 2015.
16 Benjamin Button-Stephens, ‘Lagos launches new centre', Global Arbitration Review, 24 November 2016.
17 ‘Vasani and Le Bars lead effort to create Djibouti centre', Global Arbitration Review, 14 September 2016.
18 Botswana, Cameroon, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mauritius, Namibia, Nigeria, the Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.
19 Kenya, Libya, Seychelles, Malawi, Mauritius, Sudan, Uganda, Zambia and Zimbabwe.
20 Nigerian Agip Exploration Limited v. Nigerian Petroleum Corporation and Oando OML 125 & 134 Ltd CA/A/628/2011, 25 February 2014.
21 Statoil (Nigeria) Ltd, Texaco Nigeria Outer Shelf Limited v. Nigerian National Petroleum Corporation and Others CA/L/758/2012, 12 July 2013.
22 Under the contract, if a party was dissatisfied with the result of the Tanzanian Disputes Resolution Board it could refer the dispute to SCC arbitration.
23 Tanzania National Roads Agency v. Kundan Singh Construction Limited HC Misc Civil Appeal No. 171 of 2012.
24 Tanzania National Roads Agency v. Kundan Singh Construction Limited Civil Appeal No. 38 of 2013.
25 Kamal Shah, Matthew Harley and Rosie de Galleani, ‘Tanzanian High Court reportedly issues anti-ICSID injunction', Practical Law, 14 May 2014.
26 Article 1007 of the Algerian Administrative and Civil Procedure Code: ‘The arbitration clause is the agreement by which the parties to a contract dealing with rights of which they can freely dispose commit to submit disputes that may arise in relation to this contract to arbitration.' (Translation from French.)
27 Article 1008 of the Algerian Administrative and Civil Procedure Code: ‘The arbitration clause must, under penalty of nullity, be stated in writing in the main contract or in a document to which it refers. Under the same penalty, the arbitration clause must, either nominate the arbitrator(s), or specify the terms of their nomination.' (Translation from French.)
28 Article 1040 of the Algerian Administrative and Civil Procedure Code: ‘The validity of an arbitration clause cannot be challenged on the ground that the main contract would be null and void.' (Translation from French.)
29 Article 23 of the OHADA Treaty: ‘Any state court seised of a dispute that the parties had agreed to submit to arbitration shall decline jurisdiction upon request of any of the parties, and shall direct the parties as the case may be to the arbitration procedure provided under the present Treaty.' (Translation from French.)
30 Article 23.1 of the CCJA Arbitration Rules: ‘Drafts of awards on jurisdiction, partial awards ruling on certain claims of the parties and final awards shall be submitted to the scrutiny of the court before their signature.' (Translation from French.)
31 Article 27 of the CCJA Arbitration Rules: ‘Arbitral awards rendered in accordance with the provisions of the present rules shall have the force of res judicata within the territory of each state party, in the same manner as decisions rendered by state courts. They may be readily enforced within the territory of any of the state parties.' (Translation from French.)
32 CCJA, Plen Sess, 19 November 2015, Case No. 130/2014/PC.
33 Douglas Thomson, ‘Tribunal criticises court over treatment of Guinea award', Global Arbitration Review, 12 January 2016.
35 Alison Ross, ‘West African set-aside decision not against US public policy, says court', Global Arbitration Review, 10 June 2016.
36 Tom Jones, ‘French court tells Getma to cover Guinea's costs', Global Arbitration Review, 13 February 2017.
37 OHADA News, ‘OHADA signs a partnership agreement with CCI', 23 June 2016.
38 Of the region's 44 countries (sub-Saharan Africa), 39 show a serious corruption problem, but Botswana, Cape Verde, Mauritius and Rwanda were ranked among the top 50 most transparent countries out of a list of 167: Transparency International, Corruption Perceptions Index 2016. Moreover, it takes an average of two years to enforce a contract, and the cost of doing so is 25 per cent of the underlying value of the investment in North Africa and 44.3 per cent in sub-Saharan Africa (World Bank, Doing Business 2016, June 2016).
39 International Centre for Settlement of Investment Disputes, List of Contracting States and Other Signatories of the Convention (as of April 2017).
40 Ethiopia, Guinea-Bissau and Namibia.
41 ICSID Caseload Statistics (Issue 2017-1): sub-Saharan African parties represent 15 per cent and Middle Eastern and North African parties represent 10 per cent.
42 ICSID Caseload Statistics (Issue 2017-1): 6 per cent of the cases registered in 2016 involved sub-Saharan African countries (against 15 per cent reported in 2015) and 11 per cent involved North African and Middle Eastern countries, the same as in 2015.
43 LP Egypt Holdings I, LLC (US), Fund III Egypt, LLC (US) and OMLP Egypt Holdings I, LLC (US) v. Arab Republic of Egypt (ICSID Case No. ARB/16/37).
44 Patience Okala, Speech to World Investment Forum 2014, 16 October 2014.
45 The proceedings were suspended on 21 January 2016 pursuant to the parties' agreement.
46 The SADC Member States are Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, the Seychelles, South Africa, Swaziland, the United Republic of Tanzania, Zambia and Zimbabwe.
47 Luke Eric Peterson, ‘Lesotho is held liable for investment treaty breach arising out of its role in hobbling a regional tribunal that had been hearing expropriation case', IAReporter, 14 July 2016.
48 Ampal-American Israel Corporation (US), BSS-EMG Investors LLC (US), David Fischer (German), EGI-Series Investments LLC (US), EGI-Fund (08-10) Investors LLC (US) v. Arab Republic of Egypt, Decision on Liability and Heads of Loss, 21 February 2017 (ICSID Case No. ARB/12/11).
49 Luke Eric Peterson, ‘Investigation: As fight continues over $1bil award, Libya facing at least a dozen investment treaty arbitrations - possibly more - in aftermath of Arab Spring', IAReporter, 31 March 2017.
50 Sebastian Perry, ‘Time to ‘re-localize' arbitration in Africa, ICCA told', Global Arbitration Review, 10 May 2016.
51 Africa International Legal Awareness, Directory, available at www.aila.org.uk/page-1381080.