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)

Mondaq | 16-Aug-2019
The AfCFTA entered into force on May 30, 2019 for all States that have ratified the Agreement. Trading under the agreement will begin on July 1, 2020.
African Law & Business | 7-Aug-2019
In May 2017, out of 613 cases brought under the ICSID Convention and Additional Facility Rules, 135 cases involved African states, of which 45% were brought based on states’ consent in BITs.
The Age | 22-Jul-2019
Australian company planned was to mine tantulum, but seventeen years later, the company is suing the Egyptian government for potentially hundreds of millions of dollars after the military regime blocked plans.
China.org.cn | 12-Jul-2019
Le gouvernement djiboutien a ratifié en conseil des ministres la Convention de Washington instituant le Centre International de Règlements des différends relatifs aux investissements (CIRDI).
Maroc Hebdo | 11-Jul-2019
L’objet du litige concerne le contrat pour la construction du Tunnel des Oudayas, à Rabat, dans le cadre du projet de la vallée Bouregreg.
Morocco World News | 27-Jun-2019
The Italian company claims that Morocco has breached the 1990 Italy-Morocco bilateral investment treaty provisions.
Medias24 | 29-May-2019
A l’origine de cette nouvelle requête CIRDI , Impresa Pizzarotti & C. S.p.A, groupement italien qui s’était chargé de la construction du Tunnel des Oudayas, à Rabat.
Lexology | 21-May-2019
Updates from Burkina Faso, Egypt, Kenya, Kuwait, Saudi Arabia, Tanzania.
Medias24 | 20-May-2019
Dans son litige face au Maroc, Corral Morocco Holding, actionnaire majoritaire de la Samir, réclame 1,5 milliard de dollars de dédommagements, soit l’équivalent de 14 milliards de DH marocains.
Medias24 | 16-May-2019
Emise en 2013 à la demande du Vietnam, la notice rouge visant Ahmed El Fehdi a été levée. Les dirigeants de la holding H&A Investment comptent désormais engager une procédure d’arbitrage CIRDI contre Hanoi.

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