Africa

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

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 11% of all arbitration disputes have involved African states.

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.

Egypt has been the fifth most targeted state worldwide with 34 registered ISDS cases against it. Tanzania has been the most targeted country in sub-Sahara Africa with six disputes, all of which were initiated by European investors.

(April 2020)

TSA | 22-Sep-2020
L’Algérie a obtenu une « victoire définitive » contre le milliardaire égyptien Naguib Sawiris dans l’affaire Djezzy.
Afronomics Law | 11-Sep-2020
Tanzania’s reforms show that the claim that African states should regard ISDS mechanism as the preferred method for resolving investment disputes is not only very contested, but that there are legitimate grounds for those contestations.
La Tribune Afrique | 11-Sep-2020
L’Angola et l’Union européenne vont lancer des discussions exploratrices en vue d’un accord d’investissement.
Africa Intelligence | 9-Sep-2020
Après plusieurs mois à menacer de lancer des procédures d’arbitrage contre l’Etat tanzanien pour annulation de leurs permis miniers, trois sociétés ont décidé de concrétiser leur action.
The Zimbabwe Mail | 2-Sep-2020
There are only two types of farmers that can be compensated for both land and improvements on farms. On of them is farmers whose land was protected by Bilateral Investment Protection and Promotion Agreements.
Le Temps | 21-Aug-2020
Une entité juridique basée aux Seychelles reproche à la Suisse un acte législatif vieux de 30 ans, qui interdit de revendre temporairement des immeubles non agricoles.
Leadership | 10-Aug-2020
Nigeria is undertaking series of reforms of the country’s bilateral investment treaties to attract responsible, inclusive, balanced and sustainable investments.
Indiana Resources | 10-Aug-2020
Funding will support legal costs associated with the claim against Tanzania regarding the the expropriation of the Ntaka Hill Nickel Project.
The East African | 5-Aug-2020
Some of the dispossessed farmers were from countries such as Germany, Netherlands and Switzerland whose properties were protected by investment treaties between Harare and the Western countries.
Webmanagercenter | 5-Aug-2020
Deux nouvelles réunions viennent d’être programmées avec le Centre international pour le règlement des différends relatifs aux investissements, afin de poursuivre l’examen de l’affaire de la Banque Franco-tunisienne.

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