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)

Tout DZ | 27-May-2016
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IISD | 18-May-2016
In an award issued July 28, 2015 but only published February 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) ordered Zimbabwe to return farms it seized without compensation in 2005.
Lexology | 12-May-2016
In the midst of various events, which sent shockwaves through the South African economy, the Protection of Investment Act was enacted on 15 December 2015.
IOL | 6-May-2016
AngloGold Ashanti said it filed a dispute with Ghana at an international investor arbitration panel due to the country’s failure to protect the company’s Obuasi operation from illegal miners.
Leaders | 13-Apr-2016
L’Accord de libre-échange complet et approfondi (ALECA) serait-il ce pacte qui nous obligerait dans quelques années à accepter plus de concession au profit de la machine européenne.
The Conversation | 25-Mar-2016
Bilateral investment treaties have been a source of political controversy in recent years. This is clear from the alarming increase in the number of disputes between investors and governments.
South Centre | 1-Mar-2016
In African countries, the expansion of international investment agreements could carry significant risks to policy space and policy tools necessary for industrialization and development.
Jeune Afrique | 8-Feb-2016
Le tribunal arbitral du Cirdi s’est déclaré incompétent pour juger le différend qui oppose le groupe espagnol de BTP et Malabo, dans le cadre d’une procédure déclenchée en 2012.
El Watan | 29-Jan-2016
La chaîne qatarie Al Jazeera a annoncé poursuivre l’Egypte en justice devant un tribunal d’arbitrage dépendant de la Banque mondiale, l’accusant d’avoir «confisqué» ses investissements et causé «une perte d’au moins 150 millions de dollars».
Lawyer Herald | 29-Jan-2016
Pan-Arab TV Network Al-Jazeera is taking legal actions against Egypt over the closure of the Qatar-owned broadcast network and the harassments of its journalists has led to $150 million worth of losses.

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