Africa

African states are party to over 900 investment agreements, the vast majority of which have been signed with non-African countries.

The Economic Community of West African States (ECOWAS) Treaty, signed by Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea-Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo, contains investment-state dispute settlement (ISDS) provisions, but no disputes have been registered to date

In 2006, Members of the Southern African Development Community (SADC) (Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland) signed the SADC Finance and Investment Protocol that also includes the ISDS mechanism. Only two claims have been registered under these terms, both against Lesotho (but the governments in the region do not typically disclose such information). In 2016 amendments to the protocol were adopted. They eliminated ISDS provisions (only state-to-state arbitration remained) and narrowed the scope of investors’ rights.

In South Africa, shortly after settling a dispute with foreign mining companies over its new post-apartheid mining rules (Piero Foresti & Others case), the government began to withdraw from bilateral investment treaties (BIT) that include ISDS, arguing they belonged to a bygone era. It claimed BITs focus on the interests of investors from developed countries and do not address concerns of developing countries.

The South African government decided to develop a new model BIT and strengthen its domestic legislation in regard to the protection offered to foreign investors, such as compatibility of BIT-type protection with South African law. South Africa also sought to incorporate legitimate exceptions to investor protection where warranted by public interest considerations.

Provisions of South Africa’s new model BIT] have been incorporated into SADC’s. This model sets out provisions that mitigate the risks of earlier treaties and leaves open the option for state-to-state dispute settlement in addition to investor-state dispute settlement procedures.

In 2014, voices from the Namibian government cast doubts on the correlation between foreign direct investment and investment treaties including ISDS. They argued that ISDS represented a risk for developing countries, due to important legal fees and awards which can pose a significant budgetary threat. Further, statistics show most claimants come from developed countries.

About 20% of all ICSID arbitration disputes have involved African states.

Egypt has been the fourth most targeted state worldwide with 26 registered ISDS cases against it. It is currently facing a dispute initiated by French utility services giant Véolia over a law increasing the minimum wage.

In 2013, an arbitration court ordered Libya to pay US$935 million in a dispute over a land-leasing contract for a tourism project, making it one of the largest known awards to date.

Burundi and the Democratic Republic of Congo have been the most targeted in sub-Sahara Africa, both with four disputes all initiated by Belgian and US investors respectively.

(February 2017)

L’Express de Madagascar | 15-Aug-2017
Les investisseurs de Madamobil viennent de déposer une plainte contre les autorités. Un centre d’arbitrage à Washington est en charge du dossier.
Kapitalis | 26-Jul-2017
Le Cirdi a rendu son verdict : l’Etat tunisien s’est rendu coupable de violation du droit de propriété d’ABCI sur la Banque franco-tunisienne (BFT)
Miningmx | 17-Jul-2017
AngloGold Ashanti joined Acacia Mining in entering into arbitration over legislative changes in Tanzania which entitles the East African country’s government to renegotiate business agreements with mining firms.
Lexology | 13-Jul-2017
A number of the provisions of the new legislation are inconsistent with the protections afforded to qualifying investors under agreements such as bilateral investment treaties.
The New Times | 5-Jul-2017
If Rwanda clings to BIT approach, its scope should be limited. Alternatively, it can embark on a more attractive investment climate in lieu of BITs.
Reuters | 5-Jul-2017
Acacia Mining said it was seeking an adjudicator to resolve its dispute with the Tanzanian government, a day after the east-African country passed two laws to force companies to re-negotiate their contracts.
Maghreb Emergent | 3-Jul-2017
L’ancien vice-président de la Cour d’arbitrage international de Londres, Laurent Lévy, a été désigné arbitre en chef dans l’affaire opposant le ministère de l’Habitat à l’entreprise espagnole Ortiz Construcciones au niveau du CIRDI.
Web Manager Center | 30-Jun-2017
La partie tunisienne ne veut pas d’un règlement amiable avec l’actionnaire majoritaire ABCI, même dans une phase ultérieure.
IISD | 28-Jun-2017
Le Secrétariat de la Charte de l’Énergie est en « mode expansion », et souhaite obtenir l’accès aux ressources énergétiques d’Afrique et d’Asie pour ces membres actuels – principalement des pays développés.
IISD | 23-Jun-2017
The Energy Charter Secretariat is in expansion mode, wanting to gain access to energy resources in Africa and Asia for its current—mostly developed country—members, and extending a far-reaching (and outdated) investment protection system to investments in resource-rich countries.

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