South Africa denounces BIT with Spain, by José Ángel Rueda

On 23 June 2013 South Africa sent a notification to Spain in order to denounce their BIT.[1]

The BIT was signed ad referendum in Pretoria on 30 September 1998 and entered into force on 23 December 1999.[2] According to Article XII(1) the BIT was in force for an initial period of 10 years (until 23 December 2009) and from then onwards it was in force for consecutive 2-year periods (the first one, from 24 December 2009 until 23 December 2011; the second one, from 24 December 2011 until 23 December 2013; and so on).

Article XII(2) allows any State party to denounce the BIT by a notification in writing six months before the date of expiry of the BIT. As the second 2-year period referred to above lasts until 23 December 2013, South Africa had until 23 June 2013 to send its notification. It did so on time.

In any event, as usual in BIT practice, Article XII(3) contains a survival clause whereby the BIT will be in force for an additional 10-year period from 23 December 2013 for all investments made or acquired before that date.

We understand this move by South Africa is related to a hot debate about BITs within that country.[3] We will be happy to receive comments from South Africa on this topic.[4]


[1] See http://www.comercio.es/acuerdos, footnote 7 (in Spanish).

[2] See BOE (Spanish official gazette) no. 26, 31 January 2000.

[3] See “Bilateral Investment Treaty Policy Framework Review”, Executive Summary of Government Position Paper, Pretoria, June 2009, Government Gazette, 7 July 2009.

[4] See a previous post by Azwimphelele Langalanga, “South African Courts and the Expropriation Conundrum: Caveat Foreign Investor”, 31 May 2013, at http://blogaila.com/2013/05/31/south-african-courts-and-the-expropriation-conundrum-caveat-foreign-investor-by-azwimphelele-langalanga/

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