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’Echo | 14-May-2019
Il accuse la Belgique de ne pas l’avoir protégé face à un traitement inégalitaire vis-à-vis d’autres clubs. Et d’avoir contribué à lui faire perdre tous ses investissements.
The Star | 26-Apr-2019
Kenya spends at least Sh500 million in defending a single case filed by investors at international courts under the Bilateral Investment Treaties, according to a regional trade negotiation institute.
La Nation | 16-Apr-2019
The ICSID Convention, which entered into force in 1966, establishes the institutional and legal framework for foreign investment dispute settlement.
Modern Diplomacy | 16-Apr-2019
The ICSID Convention, which entered into force in 1966, establishes the institutional and legal framework for foreign investment dispute settlement.
MENAFN | 26-Mar-2019
British Petroceltic announced filing an arbitration case against the Egyptian General Petroleum Corporation (EGPC) at the World Bank Group’s ICSID.
The Citizen | 25-Mar-2019
The preferential protection of bilateral investments between Tanzania and the Netherlands is likely to cease next month but the protection for investments made before the date of termination continues to apply for a period of 15 years (until 1 April 2034).
TV Maghreb | 22-Mar-2019
Le groupe SAUR et sa filiale STEREAU ont fait appel au CIRDI contre l’Algérie concernant un litige sur une station d’épuration des eaux, en vertu de l’accord d’investissement avec la France.
Medias24 | 5-Mar-2019
L’arbitrage Carlyle vs Maroc sera présidé par un nom connu de la finance. Le tribunal arbitral est désormais constitué et l’instance réputée engagée. Carlyle réclame au Maroc une somme qu’elle réclame aussi à la Samir et à ses assureurs.
SOMO | 1-Mar-2019
Shell used the investment agreement between the Netherlands and Nigeria to obtain a lucrative oil field at remarkably good conditions.
The East African | 25-Feb-2019
Seatini said East African countries should find alternative ways to finance development projects rather than depend on public-private partnerships and bilateral investment treaties, which have cost the region dearly.

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