Shaping Investment Arbitration: The Experience of COMESA and SADC by Rukia Baruti*

Abstract

This paper was presented at the SOAS Arbitration in Africa Conference, in Cairo in April 2017.  It is derived from a more expansive publication.[1]  This narrower version discusses the role played by African States in shaping the development of international investment arbitration.  In particular, it looks at how Member States of the COMESA and SADC have responded to the issues raised in the arbitral practice of investment treaties.    Continue reading

The China Africa Joint Arbitration Centre: A Natural Step to Sustain the Exponential Growth of Sino African business and trade, by Saadia Bhatty, Esq. MCIArb.*

China is Africa’s largest trading partner today. Significantly, in 2016, China invested more than USD 14 billion in Africa. Its capital investment into Africa up to July 2016 notably increased by 515% from full year 2015 figures. In addition, the number of investment projects into Africa from China has also been exponentially growing, with 36 projects recorded from January to July 2016 alone. Continue reading

2017: The Year of Foreign Investment Revival for Egypt? by Saadia Bhatty, Esq. MCIArb.*

Egypt is among the top 10 signatories of Bilateral Investment Treaties (“BITs”) worldwide, with a total number of over 100 BITs. It is also ranked second, after Angola, in the list of top African countries with foreign direct investment (“FDI”) growth with an increase of 49.3% of FDI inflow going from $4.6 billion in 2014 to $6.9 in 2015 (UNCTAD World Investment Report (2016)). This growth of FDI has been driven mainly by the expansion of foreign affiliates in, inter alia, the financial, pharmaceutical, energy, construction and transport industry. But despite this positive development, Egypt lost 19 places in the 2016 Doing Business report published by the World Bank ranking it 131th out of 189 countries and FDI inflows in Egypt remain well below the $11.4 billion reached in 2009. Continue reading

The New Age of corporate governance in Ghana: A Step Beyond Mere Compliance with Statutory Provisions by Bobby Banson, Esq ACIArb*

Introduction

Every day, new companies are registered at the Registrar General’s Department of Ghana. Statistics available at the time of writing this paper revealed that to date, over one million companies have been issued with Certificates to Commence Business by the Registrar General’s Department. Continue reading

Registration of Trademarks in Nigeria by Onyekachi Umah*

What is a Trademark?

Over time in business and life generally, individuals, partnerships, corporations, organisations and companies have developed, designed, created, coined, formed and used certain distinctive names, logos, crests, flags, badges, symbols, signs, patterns, formations, processes and drawings to differentiate themselves from others; owing and using same exclusively. In today’s world, a circled letter “Y” is owned  by Mercedes, GMC is owned by General Motors Corporation, LEX10® is owned by Lex10 Law Technologies, HP® is owned by Hewlett-Packard Company , Closeup® is owned by Unilever Nigeria Plc, MR.BIGG’S®  and GALA® is owned by UAC foods Plc and Blackberry® is owned by Research in Motion etc. All those are names, logos and products used in business by their respective owners to the exclusion of all other persons and companies in the parts of the world, where they are registered.  To retain customers and clients, create a renowned brand and fight piracy, registration of trademarks becomes very necessary.

Continue reading

India-Africa Trade and Investment: Ten Critical Questions Africans Should be Asking Their Leaders by Dr. Uche Ewelukwa Ofodile, SJD (Harvard)*

India-Africa trade and investment has seen tremendous growth in the last decade. The deepening relationship between old partners and allies prompted the launch, in 2008, of the India-Africa Forum Summit.  Cooperation is deepening on a number of fronts. Economic cooperation, political cooperation, cooperation in social development and capacity building, cooperation in health, culture and sports, as well as cooperation in tourism, infrastructure, energy and environment are all mentioned as viable areas for cooperation in key documents of the India-Africa Forum Summit. Both sides envision a partnership that goes beyond bilateral linkages. Continue reading

The East African Court of Justice’s Arbitral Jurisdiction over Commercial Contract Disputes by Dr Faustin Ntezilyayo, MCIArb*

Introduction

The East African region has made significant strides in furthering its regional integration agenda. This can be seen, for example, through its level of intra-regional trade of 23%, which is higher than the average of 12% on the African continent.  It is estimated that intra-East African Community (EAC) trade grew from 2 billion US dollars in 2005 to 6 billion US dollars in 2014, representing a 300% increase in the value of trade. This was highlighted by the 16th Summit of Heads of State of the East African Community, held on 20 February 2015, in Nairobi, Kenya.[1] Continue reading

An Appraisal of the Legal Framework for the Protection of Foreign Direct Investment in Nigeria by Mrs ‘Funke Adekoya SAN*

Paper presented at the 2015 Annual Conference of the Chartered Institute of Arbitrators [Nigerian Branch] [1]

Introduction

An appraisal of the legal framework for the protection of foreign direct investment requires an agreement as to what constitutes foreign direct investment or FDI as it is commonly referred to. There is no universally accepted definition of what constitutes ‘foreign direct investment’ or FDI, but it is generally agreed that FDI refers to a commercial act whereby a person or entity from one country deploys substantial resources from that country to another country in order to establish commercial operations or acquire income-generating tangible assets, or take effective control or have a significant degree of influence over the management of such operations or assets with the expectation of obtaining a return on such investment. Continue reading

A Simple Guide to Acquiring Land/Landed Property in Ghana: Is Land Title Registration Enough? by Bobby Banson*

The first lesson I learnt in my Land Law Class is that Land is the only commodity that God has ceased creating. It is the only thing that man, throughout the history of invention, has not attempted to create. Land has become and continues to be a very scarce commodity. The ever increasing global population worsens the situation. The world’s population is now more than seven (7) billion and continues to grow by 83 million people per year. We should not forget the fact that land is a finite sphere and cannot endure infinite growth by any single species. Continue reading

Third Party Litigation Funding: A New Route to Accessing Justice by Bobby Banson*

ACCESS TO JUSTICE

With the recent hikes in the filling fees and other administrative charges associated with Court proceedings and processes in Ghana as well as the upward adjustments of the Bar Scale of Fees for Lawyers, the perception that justice is the preserve of the rich seems to have gained notoriety. Litigants are made to weigh the cost benefit analysis before venturing into the area of litigation. This situation leaves prospective litigants no choice than to take solace in the proverbial words of “Fame Nyame” to wit “leave it to God”. Justice is simply expensive in Ghana to the average person. Continue reading

Third Party Rights – Arbitrability, Locus Standi and Precipate Action in Arbitration Proceedings in Nigeria, by ‘Funke Adekoya, SAN

Statoil (Nigeria) Limited & Anor v. Federal Inland Revenue Service & Anor

In a landmark decision, which rolls back the giant strides that Nigeria was said to have recently achieved in asserting its arbitration–friendly nature, the Court of Appeal has seemingly reversed its previous position on Section 34 of the Arbitration and Conciliation Act[1] on the extent of court intervention in arbitration proceedings.[2] An earlier decision had also upheld the court’s limited ability to intercede in arbitration proceedings.[3] Continue reading

Africa’s Sub-regional Courts, Infrastructure Development and Sustainability: Insight from the Serengeti Decision by Uche Ewelukwa Ofodile*

Introduction

On 20 June 2014, the East African Court of Justice (hereinafter “EACJ” or “the Court”) issued a decision barring the United Republic of Tanzania (hereinafter “Tanzania”) from constructing and maintaining a road known as the “Natta-Mugumu – Tabora B-Kleins Gate – Loliondo Road” (hereinafter, “the Road” or “the Superhighway”) across the northern wilderness of the Serengeti National Park (hereinafter “the Serengeti”). Continue reading

Africa and the System of Investor-State Dispute Settlement: To Reject or Not to Reject? Uche Ewelukwa Ofodile*

Abstract

This paper examines the position of countries in Sub-Saharan Africa (SSA) regarding proposals to reform the investor-State dispute settlement (ISDS) system. Despite their silence on ongoing discussions about the future of the ISDS system and possible pathways for reform, SSA countries are making their position on the issue known. The paper argues that the position of SSA countries can be gleaned from instruments that these countries have pushed for at the sub-regional level. In particular, in the Investment Agreement for the COMESA Common Investment Area (CCIA),[1] in the SADC Bilateral Investment Treaty Template (SADC Model BIT),[2] and even in the SADC Protocol on Investment, countries in SSA appear to express a desire for a radically transformed ISDS system. However, closer inspection suggests that SSA countries are inconsistent in their actions when it comes to reforming the ISDS mechanism. Although these countries espouse a vision of an ISDS mechanism that is different from the existing mechanism, their actions tell a different story. For example, the CCIA is not operational, the SADC Model BIT is not binding and very few countries, if any, have taken steps to model their bilateral investment treaties (BITs) after it. And in their BITs and related treaties, SSA countries still cling to the traditional approach to ISDS and BITs more generally. Furthermore, while SSA countries would prefer to limit investor access to ISDS, the demise of the SADC Tribunal in the wake of Mike Campbell (Pvt) Ltd and Others v. Republic of Zimbabweundermines efforts to project domestic and regional institutions in Africa as credible alternatives to international arbitration. The paper suggests that the inconsistent position of SSA countries on the ISDS question deserves closer study. Also deserving closer study is an assessment of the experience of SSA countries with the ISDS system since the system emerged some forty years ago. Finally, attention must be paid to the myriad of factors that presently limit the capacity of countries in Africa to negotiate tailored and development-oriented international investment agreements (IIAs) as well as factors that undermine their effective participation in the international investment law regime more generally.  Continue reading

Mediation use in ISDS by Fatma Khalifa*

Investor State Dispute Settlement (ISDS) has been largely dominated by arbitration as a means of dispute settlement. The problems encountered by parties in ISDS cases and the concerns voiced by multiple stake holders call for attempting new mechanisms, such as mediation, for settling Investor State Disputes (ISD). Mediation in ISDS is rather a new combination of terms. In this paper I will first identify mediation (1), compare it to other dispute settlement mechanisms (2), identify the players in the mediation process and the consent of the Parties (3), briefly explain the mediation process (4), and finally conclude by shedding some remarks on the current status and proposals for a way forward. Continue reading