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.   

1.     Introduction

The development of international investment arbitration beyond its contractual basis is a relatively recent phenomenon.  Not too long ago, it was inconceivable – unless consent to arbitrate had been given in a concession contract – for private investors to initiate direct arbitration against host States.  But neither Contracting Party to the first bilateral investment treaty (‘BIT’) nor signatory of the 1965 Convention on the International Centre for Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’)[2] would have foreseen that they had unwittingly participated in a chain of events that would ultimately limit host States’ sovereign powers and open other bases up for direct arbitration by private investors.

Now, the right to initiate arbitration against a host State is not only contained in contracts but also in host State laws, bilateral, regional and multilateral investment instruments. And ever since, investment arbitration has developed considerably, in large part due to a proliferation of BITs and their interpretation and application by arbitral tribunals.  While these developments have seen African States involved in more than a third of the total number of investment arbitrations at ICSID, their role in the development of international investment arbitration has thus far been almost exclusively limited to signing BITs and defending enforcement of BITs against them.

This paper reviews the development of international investment arbitration and the changing role of the African States in it.  In particular, the States belonging to the Common Market for Southern and Eastern Africa (‘COMESA’)[3] and the Southern African Development Community (‘SADC’).[4]  In doing so, it traces the emergence of investment arbitration, its development by the practice of arbitral tribunals and the experience of COMESA and SADC Members with investment arbitration.  It then considers how COMESA and SADC Members have responded to the issues raised in the arbitral practice of BITs.  It concludes by suggesting that their response hints at an evolving shift in roles from mere observers to a more hands-on role in the development of investment arbitration by the African States.

2.     The Emergence of Investor-State Arbitration

Investment arbitration was born out of the need to address the deficiencies of diplomatic protection as a means of resolving investor-State disputes.  In the 1930s, host States had concluded some concession contracts in the mining and oil sectors with private investors. These concession contracts included investor-State arbitration clauses to protect private investors from unilateral changes by the host State.[5]  However, as evidenced by the great oil nationalisation arbitrations of the 1970s, there were significant problems with these types of arbitrations due to the abuse of sovereign powers by host States within a contractual framework.[6]

Furthermore, while the inclusion of these clauses addressed the problems encountered with diplomatic protection, investor-State arbitrations were not possible without a concession contract between the private investor and the host State and only a minority of private investors ever had a concession contract.[7] Accordingly, in the absence of a concession contract providing for investor-State arbitration, diplomatic protection remained the only option for resolving disputes between host States and private investors.[8]

Subsequently, BITs appeared to offer another solution to the investor-State dispute settlement problem.  This solution was in most of the older BITs from the 1960s concluded by the European States mostly with developing States, which contained an umbrella clause.  The umbrella clause – also known as the “observance of undertakings” clause – required either party to “observe any other obligations” it may have entered into with regard to investments by nationals or companies of the other Party.  This clause arguably obliged host States under the BIT to comply with investment contracts concluded with private investors, effectively elevating a contract claim to a treaty claim.  However, the precise scope of an umbrella clause has been the subject of controversy and inconsistent decisions by arbitral tribunals.[9]

Conversely, the genius of the 1965 World Bank ICSID Convention was in embodying an investor-State dispute settlement system in an instrument that bound the Contracting States thus ensuring that any agreements on dispute resolution voluntarily entered into would be honoured.  The ICSID Convention authorised both conciliation and arbitration as a means of resolving investor-State disputes.  Not only did the ICSID Convention create a self-contained system that kept out the national courts, on arbitration, but it also adopted the model of commercial-style arbitration before specialised international tribunals.  These tribunals would issue final and binding awards recognised and enforceable in any ICSID Contracting State as if it were a final judgment of a court in that State.[10]  Accordingly, the ICSID Convention obligated States to comply with ICSID awards as an international law obligation.[11]  Furthermore, in creating ICSID as a neutral forum for the direct determination of investor-State disputes, it depoliticized the process by obviating the need to involve the investor’s home State.

However, mere ratification of the ICSID Convention does not confer jurisdiction on ICSID or its arbitral tribunals – a Contracting State has to have given consent.  As the Report of the Executive Directors on the ICSID Convention states, among other things, consent to jurisdiction needs to be in writing and once given it cannot be withdrawn unilaterally.[12]  Nevertheless, paragraph 24 of the Report provides that it does not require the consent of both parties to be expressed in a single instrument.  On this, it states that “a host State might in its investment promotion legislation offer to submit disputes arising out of certain classes of investments to the jurisdiction of ICSID, and the investor might give his consent by accepting the offer in writing.” Thus, in a first of its kind, the 1984 SPP v Egypt case[13] saw a claimant successfully initiate arbitration at ICSID by accepting a host State’s unilateral offer to arbitrate contained in a 1988 Egyptian investment law to which Egypt had adhered by Law No. 90 of 1971 acceding to the ICSID Convention.

Then in 1987 in the Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka[14] case the claimant, a Hong Kong company, invoked Article 8(1) on ‘Reference to International Centre for Settlement of Investment Disputes’ of the 1980 UK-Sri Lanka BIT to initiate ICSID arbitration.  Sri Lanka did not challenge ICSID’s jurisdiction and this case became the first that ICSID registered based solely on a BIT provision.

Following the AAPL v Sri Lanka case the majority of BITs started explicitly including provisions on investor-State dispute settlement (‘ISDS’) with arbitration under ICSID.  At around the same time, the shortage of capital[15] and the need to attract it had intensified and spurred conclusion of BITs, which had become the preferred method of investment protection following the failure to conclude a multilateral agreement on investment.[16] Like most developing countries, African countries viewed inward foreign direct investment (‘FDI’) as an integral part of their development strategy. As such, the notion that to attract FDI, States have to demonstrate their ability to protect such investment, has, over the decades, been ingrained in the economic mindsets of African States.  Consequently, at the height of their pursuit of such investment COMESA and SADC Members concluded many BITs. These BITs were negotiated on the basis of a pre-existing model agreement drafted by the developed State.

The proliferation of BITs was accompanied by the conclusion of Regional Free Trade Agreements like the 1993 North Atlantic Free Trade Agreement (‘NAFTA’) and multilateral treaties such as the 1994 Energy Charter Treaty (‘ECT’) both of which included arbitration provisions affording private investors the ability to invoke treaty violations directly.  Simultaneously, ICSID membership grew and became the leading forum for the resolution of investor-State disputes with the number of claims filed annually having increased dramatically from barely having any in the 1970s to registering 597 cases by the end of 2016.[17]

3.     Development of Investment Arbitration

As cases at ICSID increased, so did the development of investment arbitration.  While investment treaties provide the framework of investment arbitrations, the treaties need to be interpreted then applied.  But there may be situations faced by an arbitral tribunal that neither the investment treaty concerned nor the applicable law and arbitration rules addresses.  In such cases, there is a general understanding that arbitral tribunals have inherent powers or the discretion to fill the jurisdictional lacuna to enable them to exercise their powers in controlling the arbitration process.

As a result, investment arbitration tribunals have played a significant role in interpreting and applying investment treaties thus developing investment arbitration.  In this regard, arbitral tribunals have, through their practice of treaty interpretation and application, developed – albeit inconsistently – certain areas of investment arbitration in ways that treaty parties had not anticipated.  Such areas have included: (i) expanding grounds for founding jurisdiction by, for example, expansive interpretation of the definition of ‘investment’ and ‘investor’ or through the application of the most-favoured-nation (‘MFN’) clause;[18] (ii) extending the interpretation of the fair and equitable treatment standard (‘FET’);[19]  (iii) establishing the basis for third party participation;[20] (iv) delineating the scope of interim measures;[21] and (v) deciding on the standard for non-expropriation breaches,[22] scope and valuation[23] of compensation.

Whereas some of these developments through arbitral practice have been welcomed by treaty parties and subsequently incorporated into their treaties[24] and institutional arbitration rules,[25] many still have not and have in fact left questions open by rendering conflicting awards.[26] This disconnect between what treaty parties expect from their investment instruments and how arbitral tribunals have interpreted and applied them has caused tension between States and arbitral tribunals.

Consequently, some States have exercised their inherent powers to address some of the issues raised in the interpretation of their treaties.  On this, Article 31(3) (a) and (b) of the Vienna Convention on the Law of Treaties (‘VCLT’) provides that treaty interpretation shall take account of the treaty parties’ subsequent agreements and practice.  Additionally, some investment treaties include provisions stating that the treaty parties can issue joint interpretations (even after arbitration is underway) that will bind investor-State tribunals.[27]  The exercise of this power has divided opinions of investment treaty tribunals.  Some tribunals anxious about ensuring equality of the parties have expressed concern because they consider that a State that is alleging to be issuing an interpretation of a treaty during an on-going arbitration, may, in fact, be making an illegitimate attempt to amend the treaty retroactively.

This issue first arose in Pope & Talbot v Canada[28] when the NAFTA States decided to issue their interpretation on the FET standard.  Although the interpretation was issued after the Award on Merits ruling that Canada had violated the FET standard, the determination of damages had yet to be made.  The tribunal considered this to be an amendment of the treaty designed to interfere with on-going arbitration proceedings but concluded that its findings of liability would stand.

In part, due to the dissonance between States and arbitral tribunals regarding the interpretation of investment treaties an increasing number of developing States, including African countries, are disengaging from the regime of concluding BITs.[29]  Many States are concerned that the unpredictability of tribunal decisions interferes with their ability to regulate by influencing them to make regulatory decisions based on the need to avoid liability to investors under a BIT.  Accordingly, States are seeking to renegotiate current BITs, unilaterally terminating existing treaties or denouncing multilateral arbitration conventions.[30]

4.     COMESA and SADC Experience with Investment Arbitration

Equally, the experience of investment arbitrations by COMESA and SADC Members has soured their perception of BITs.  As at the end of 2014, more than half (61 percent) of COMESA and SADC Members had been involved in a total of 60 investor-State arbitrations, a majority (55) of which were ICSID arbitrations representing 11.11 percent of the total number of ICSID arbitration claims at the time.[31] Despite involving African States, these 60 arbitrations only had 15 African arbitrators as members of the tribunals.

Also by the end of 2014, COMESA and SADC Members had concluded more than 15 percent of the total number of BITs[32] and all BITs they concluded from the 1990s contained investor-State arbitration clauses.  Despite the increase in the number of BITs they concluded, there was no corresponding increase in the percentage of FDI inflows into COMESA and SADC regions.  Furthermore, not only did the increase in the number of concluded BITs fail to show a corresponding increase in FDI inflows, but there was a gradual increase in the number of investor-State arbitrations involving COMESA and SADC Members.

This rise in investor-State arbitration claims in COMESA and SADC regions is alarming.  It raises concerns not only about the investment climate in these States and their ability to comply with their BIT obligations – but given their developing status – it also raises concerns about the detrimental impact on their economies as a result of the amount of money spent on defending claims and paying damages to successful investor Claimants.

Out of 39 concluded cases, 13 were settled; three were discontinued; four were dismissed; 11 were in favour of the investor; seven were in favour of the host State; and two had no information available for review.  Given that the settled arbitrations involved some monetary compensation to the investors, it is reasonable to conclude that the host States lost more cases than they won.

The underlying causes of the rise in investment arbitration claims in these States included (a) a violent change in government; (b) legal and political instability in the aftermath of anti-government protests; (c) conflict situations due to civil strife; (d) corruption; (e) a change in government policy or law; and (f) insufficiently developed tax regimes.  The most common cause of investment disputes was a change of policy or a change of law.  Such changes raise the issue of the regulatory space required by developing States to be able to adopt new laws and policies designed to improve their economies and the lives of their citizens without the fear of being challenged by foreign investors.  While most of these causes for investment disputes can arise in any given country, they are invariably more common in developing States, and the longer they remain unaddressed, the more crippling they are on the capacity of developing States to adhere to the rule of law, let alone comply with their BIT obligations.

Additionally, provisions in BITs – especially those in the older BITs – were rather vague.  Not having participated in their drafting, COMESA and SADC Members are more likely to interpret their provisions differently from the predominantly “Western” or developed country arbitral tribunals.[35] The fact that African arbitrators are very rarely appointed in such arbitrations is disadvantageous because the African perspective in the development of investment arbitration by way of interpretation of their BITs is lacking.

5.     The Shaping of Investment Arbitration by COMESA and SADC

Given the preceding, COMESA and SADC Members decided to attempt a regional approach to regulating FDI.  They did so by concluding regional investment instruments.  In 2007 COMESA concluded the COMESA Common Investment Area Agreement (‘CCIA Agreement’).[36] In 2006, SADC concluded the SADC Protocol on Finance and Investment (‘FIP’), which came into force in 2010.[37] Annex I of the FIP on Co-operation on Investment was amended in August 2016.  However, the changes have yet to be ratified[38] and the amended FIP is not publicly available for review.  Additionally, in 2012, SADC concluded the SADC Model Bilateral Investment Treaty.[39]

Even though the CCIA Agreement is yet to enter into force and the amendments to the FIP are yet to be ratified, and the SADC Model BIT is currently being revised,[40] these instruments show a significant change in the focus of attention in investment instruments. This change is evident not only in the level of detail but also in the new provisions introduced as well as in the restriction or omission of certain traditional standards of protection. These instruments include provisions aimed at addressing some of the concerns raised in the practice of investment tribunals, with the specific aim of shifting the emphasis away from the protection of investments.

5.1.      Standards of Treatment

Although the FIP includes the FET standard, it qualifies it by providing that it shall be no less favourable than the treatment granted to investors of a third state.[41] As such, it links FET to MFN treatment, which should limit potential damages by ensuring that all foreign investors receive the same level of compensation. In the amendments to the FIP, the FET standard has been deleted.[42]  The FIP does not provide for national treatment (‘NT’); instead, Article 7 allows the Member States to grant preferential treatment to their nationals in accordance with their domestic legislations to enable them to achieve national development objectives. However, it requires the Member States to ‘eventually harmonize their respective domestic policies and legislation within the spirit of non-discrimination.’[43] The amendments to the FIP offer NT on post-establishment rights of management, operation and disposition of investments.[44]

FET has been given special attention in the CCIA Agreement and the SADC Model BIT because it is the most frequently invoked standard. In this regard, the CCIA Agreement obliges Member States to apply FET to investors and their investments in accordance with the customary international law minimum standard[45] and clarifies that this ‘does not require treatment in addition to or beyond what is required by that standard.’[46] It acknowledges that the Member States have different forms of administrative, legislative and judicial systems and that they understand that different levels of development may not achieve the same standards at the same time.[47] This approach differs from the traditional one to the international minimum standard by introducing a degree of flexibility in its interpretation based on the level of development of the respondent country.[48] Moreover, the CCIA Agreement excludes the full protection and security provision.

The SADC Model BIT recommends not to include the FET standard and suggests an alternative standard called ‘Fair Administrative Treatment.’ This standard requires, taking into consideration the level of development of the Member State in reviewing its approach to procedural justice or due process in administrative, legislative, and judicial processes so as to ensure that these do not operate in a manner that is arbitrary or that deny justice or due process to investors or their investments.[49] While it recommends excluding the FET standard, it does include it as an option but links it to the customary international law minimum standard by using the specific language of the Neer case,[50] which is known for its high threshold.[51] While the SADC Model BIT includes a provision on ‘protection and security’, it makes it a standalone provision that is not linked to FET, but instead to non-discriminatory treatment.  Furthermore, compensation relates to losses suffered as a result of war or another armed conflict, which is determined on a non-discriminatory basis.[52]

Similarly, to avoid uncertainty in the interpretation of the phrase ‘like circumstances’ with respect to non-discrimination provisions, both the CCIA Agreement and the SADC Model BIT require an overall examination on a case-by-case basis of all the circumstances of an investment so that a broad view is taken as opposed to merely looking at whether the investors are in the same sector or a related or competitive sector.[53] The amendments to the FIP contain a similar provision.[54]  Both the CCIA Agreement and the SADC Model BIT exclude NT for measures included in the exceptions or exclusion lists, and the SADC Model BIT also allows for the exclusion of NT to certain sectors.

The MFN clause has been excluded from the SADC Model BIT. Also, unlike the CCIA Agreement, which confers NT for both pre-establishment and post-establishment rights, the SADC Model BIT only covers non-discrimination for post-establishment rights of management, operation and disposition[55] to limit the potential for claims.

The regional investment instruments of COMESA and SADC include provisions on expropriation and compensation. While the FIP still adopts the typical BIT standard for compensation, the CCIA Agreement requires ‘prompt’ and ‘adequate compensation’, which may be adjusted to ‘reflect the aggravating conduct by a COMESA investor or such conduct that does not seek to mitigate damages.’[56] However, the amendments to the FIP provide for “fair and adequate” compensation.[57]  Similarly, the SADC Model BIT departs from the typical expropriation provision in at least two ways.  Firstly, it does not require an expropriation to be non-discriminatory to be lawful. The explanation given for this is that expropriations are commonly targeted and specific and could, therefore, be viewed as discriminatory anyway. Secondly, it adopts a different standard of compensation for expropriation, which is ‘fair and adequate’ to be paid ‘within a reasonable period of time.’[58]

Both the CCIA Agreement and the SADC Model BIT allow host States to pay awards that are ‘significantly burdensome’ in instalments, i.e. on a yearly basis ‘over a period agreed by the Parties, subject to interest at the rate established by agreement’ of the disputants or by a tribunal.[59] However, compensation will not be payable for ‘the issuance of compulsory licences granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights to the extent that such issuance, revocation, limitation or creation is consistent with applicable international agreements on intellectual property.’[60] Similar provisions are included in the amendments to the FIP.[61]

Furthermore, a measure of ‘general application shall not be considered an expropriation of a debt security or loan covered by these agreements solely on the basis that the measure imposes costs on the debtor that cause it to default on the debt.’[62] In addition, both instruments affirm the right of a host State to regulate for the public good by providing that regulatory measures taken by a host State ‘designed and applied to protect or enhance legitimate public welfare objectives, such as public health, safety and the environment’ will not constitute an indirect expropriation.[63]  This provision is also adopted in the amendments to the FIP.[64]

As seen above, provisions on standards of protection in the COMESAfa and SADC investment instruments show a clear restriction in coverage compared to similar provisions in traditional BITs. There is also a complete exclusion of some of the standards of protection typically found in BITs.

5.2.      Host States’ Rights

To further limit the coverage of the standards of protection, the regional investment instruments introduce host States’ rights. In this regard, the CCIA Agreement permits a host State to take ‘emergency safeguard measures’ if it suffers injury as a result of economic activities under the CCIA Agreement[65] and to take ‘measures to safeguard balance of payments … external financial difficulties’ by applying restrictions on investments with respect to which it has undertaken commitments on transfers of assets, NT, MFN treatment and expropriation if it suffers a serious balance-of-payment and external financial difficulties.[66]

The FIP includes a specific article on the ‘Right to Regulate’ that allows the Member States to regulate in the interests of the public. Through this provision, Member States can ‘adopt, maintain or enforce any measure’ considered appropriate for ensuring that ‘[i]nvestment activity is undertaken in a manner sensitive to health, safety or environmental concerns.’[67] This provision has been expanded in the amendments to the FIP to allow a host State to ‘take regulatory or other measures to ensure that development in its territory is consistent with the goals and principles of sustainable development, and with other legitimate social and economic policy objectives.’[68]

Similarly, the SADC Model BIT includes a provision on the ‘Right of States to Regulate.’[69] It provides that a host State ‘has the right to take regulatory or other measures to ensure that development in its territory is consistent with the goals and principles of sustainable development, and with other legitimate social and economic policy objectives.’[70] This right is to be ‘understood as embodied within a balance of the rights and obligations of Investors and Investments and host States.’[71]

The SADC Model BIT also bestows upon host States the right to pursue development goals. In this respect, a host State ‘may grant preferential treatment’ to any enterprise ‘in order to achieve national or sub-national regional development goals.’[72] A host State may also ‘support the development of local entrepreneurs’ and ‘seek to enhance productive capacity, increase employment, increase human resource capacity and training, research and development.’[73] Finally, a host State may take measures to ‘address historically based economic disparities suffered by identifiable ethnic or cultural groups due to discriminatory or oppressive measures.’[74] It appears that the introduction of provisions on host States’ rights in these regional instruments aims to balance out the rights and obligations of host States and investors.

5.3.      Investor Obligations

In developing the balancing act, the regional investment instruments introduce provisions on investor obligations. In this respect, the FIP requires investors to abide by the laws, regulations, administrative guidelines as well as policies of the host State.[75] The amendments to the FIP require investors to abide by this provision for the ‘full cycle of those investment’.[76] Similarly, the CCIA Agreement requires investors and their investments to comply with all applicable domestic measures of the host State.[77] The SADC Model BIT has several provisions placing obligations on investors. These include an obligation against corruption,[78] compliance with domestic laws,[79] provision of information,[80] environmental and social impact assessment,[81] environmental management and improvement,[82] the minimum standard for human rights, environment and labour;[83] corporate governance standards,[84] investor liability,[85] as well as transparency of contracts and payments.[86] In deviating further from the approach of the traditional BITs, these regional instruments take into account host State concerns by incorporating investor obligations to integrate environmental, social and governance issues in investment decision-making.

5.4.      Dispute Settlement

While retaining the BIT practice of including ISDS provisions, the regional investment instruments take a more restrictive approach to allowing recourse to arbitration. They also allow counterclaims intended to achieve a more balanced access to investment dispute resolution. All the regional investment instruments confer on investors the right to bring direct claims against a host State but make this conditional upon attempting an amicable settlement of disputes.  The FIP requires that (after failing to settle the dispute amicably), investors should exhaust local remedies before resorting to arbitration.  However, the amendments to the FIP do not include an ISDS provision and provide only for State-to-State dispute resolution.[87]

The CCIA Agreement obliges disputing parties to seek to resolve their disputes through amicable means, both before and during the cooling-off period.[88] The cooling-off period is a minimum of six months. If no alternative means of resolving a dispute is agreed, a disputing party is obliged to seek the assistance of a mediator to resolve it during the cooling-off period.[89] If three months before the expiration period of the cooling-off period the disputing parties have failed to agree on a mediator, the President of the COMESA Court of Justice, or his designate, shall appoint a mediator from the COMESA Secretariat’s list. The appointment shall be binding on the disputing parties.[90]

The SADC Model BIT does not make it obligatory to resort to mediation, it does, however, provide that either disputing party may request mediation of the dispute after a notice of intent has been submitted, and the other disputing party may agree to such mediation.[91]

Additionally, both the CCIA Agreement and the SADC Model BIT impose a three-year cut-off period for submission of an arbitration claim.[92] Like the FIP, the SADC Model BIT requires the exhaustion of local remedies before arbitration proceedings are commenced. If local remedies have been exhausted the time limit for bringing an arbitration claim under the SADC Model BIT is one year from the conclusion of the request for local remedies.[93] Moreover, the SADC Model BIT prevents the initiation of arbitration under a BIT if the issue in dispute would be covered by choice of forum clause contained in any investment law, regulation, permit or contract.[94]

Whereas the CCIA Agreement and the SADC Model BIT provide investors with a choice of forum for bringing claims against a host State, including arbitration under the ICSID Convention and ad hoc arbitration under the UNCITRAL  Arbitration Rules or under any other arbitration institution or rules,[95] they also attempt to limit the potential for multiple claims by including fork-in-the-road clauses that prevent an investor from choosing another forum after having initiated proceedings for a claim relating to the same subject matter.[96]

The CCIA Agreement and the SADC Model BIT allow host States to bring counterclaims against investors. Under the CCIA Agreement, the host State may do so as a defence, counterclaim, right of set-off or a similar claim.[97] Under the SADC Model BIT, a host State may counterclaim for damages or other relief resulting from an alleged breach of the BIT.[98] The SADC Model BIT also allows the initiation of a civil action by the host State, political subdivisions or private entities in domestic courts against an investor or investment for damages arising from an alleged breach of the obligations set out in the BIT.[99] In reformulating their dispute resolution provisions, the regional instruments attempt to shift the focus away from investment protection.

6.     Conclusion

Investment arbitration developed in response to the need to better protect foreign investors and their investments.  This protection was achieved by establishing ICSID to provide a more effective forum for the resolution of investor-State disputes.  Simultaneously, developed States drafted and concluded BITs mostly with developing States, which later offered arbitration under ICSID and are seemingly skewed in favour of investors.  However, the prominence of ICSID as the preferred forum for ISDS and the proliferation of BITs as well as investment tribunal practice, have not been favourable to COMESA and SADC Members who have had to defend a relatively high percentage of ICSID arbitrations.

While COMESA and SADC Members signed several BITs at the height of their pursuit of FDI, they had little if any input in their drafting or the subsequent development of investment arbitration.  In recognition of the failure of BITs as a tool for attracting FDI and the need to prevent the rise of investment arbitration claims, COMESA and SADC Members concluded regional investment instruments.  It is evident from the content of these investment instruments that they are in response to the arbitral practice of investment tribunals as they shift the focus of their purpose away from the protection of investors and their investments.

This approach is apparent not only in the inclusion of specific provisions aimed at balancing out the rights and obligations of host States and investors but also in the limitation of coverage or omission of certain investment protection provisions.  Viewed holistically, the deliberate shift away from an emphasis on protection demonstrates the changing role of these African States in the international investment regime from mere observers to fully fledged participants keen to shape the development of investment arbitration.

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* Managing Director of Africa International Legal Awareness (AILA) and Research Member of the Foreign Investment in Africa Project (funded by the Swiss National Science Foundation (SNSF), Law Faculty of the University of Geneva, Department of Public International Law and International Organisation.

[1] Rukia Baruti, ‘Investment Facilitation in Regional Economic Integration in Africa: The Cases of COMESA, EAC and SADC’ Journal of World Investment & Trade 18 (2017) 493–529).

[2] Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159.

[3] Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.

[4] Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

[5] Joost Pauwelyn, At the Edge of Chaos? Foreign Investment Law as A Complex Adaptive System, How It Emerged And How It Can Be Reformed (Rochester, NY: Social Science Research Network, 24 January 2014), p. 392 <https://papers.ssrn.com/abstract=2271869> accessed 27 February 2017.

[6] Campbell McLachlan, ‘Investment Treaty Arbitration: The Legal Framework in Albert Jan van Den’, in 50 Years of the New York Convention: ICCA International Arbitration Conference, ed. by Albert Jan van den Berg, ICCA Congress Series (Kluwer Law International; Kluwer Law International, 2009), xiv, 95–145 (p. 98).

[7] McLachlan, xiv, p. 98.

[8] Pauwelyn, p. 392.

[9] See Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, (ICSID Case No. ARB/01/13), Decision of the Tribunal on Objections to Jurisdiction, 6 August 2003, paras 166-67; Société Générale de Surveillance S.A. v. Republic of the Philippines, (ICSID Case No. ARB/02/6), Decision of the Tribunal on Objections to Jurisdiction, 29 January 2004, paras 115, 119.

[10] ICSID Convention, art. 54.1.

[11] McLachlan, xiv, p. 96.

[12] ICSID Convention, art. 25(1).

[13] Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt (ICSID Case No. ARB/84/3), Decision on Jurisdiction 14 April 1988.

[14] Asian Agricultural Products Limited v. Democratic Socialist Republic of Sri Lanka (ICSID Case No. ARB/87/3)

[15] Ibrahim F.I. Shihata (1991), ‘Promotion of Foreign Direct Investment – A General Account, with Particular Reference to the Role of the World Bank Group’, ICSID Review, 6.2 (1991), 484–509 (p. 488).

[16] This included the unsuccessful efforts to establish a multilateral framework for investment including the 1948 Havana Charter, which contemplated codifying investment protection through the establishment of an international trade organization; the 1959 Abs-Shawcross Draft Convention on Investment Abroad which was to provide the basis for a multinational agreement on investment protection for the Organisation for Economic Co-operation and Development (OECD); and the OECD’s attempt to negotiate a multilateral agreement on investment in the 1990s.

[17] ICSID Caseload Statistics (Issue 2017-1) <https://icsid.worldbank.org/en/Documents/resources/ICSID percent20Web percent20Stats percent202017-1 percent20(English) percent20Final.pdf> accessed 27 February 2017.

[18] William Rand, Robert N. Hornick, and Paul Friedland, ‘ICSID’s Emerging Jurisprudence: The Scope of ICSIDs Jurisdiction’, New York University Journal of International Law and Politics, 19 (1986), 33; Chen Huiping, ‘Expansion of Jurisdiction by ICSID Tribunals: Approaches, Reasons and Damages’, Journal of World Investment & Trade, 12 (2011), 671–88.

[19] S.D. Myers v. Government of Canada (NAFTA) (UNCITRAL), Partial Award, (12/11/00), 40 I.L.M. 1408, 2001, para 264; Pope and Talbot v. Government of Canada, (NAFTA) (UNCITRAL), Award on the Merits (April 10, 2001), 7 ICSID Reports 102, paras 105-118.

[20] Methanex Corp. v. United States of America, (NAFTA) Decision of the Tribunal on Petitions from Third Persons to intervene as “Amici Curiae” <http://www.state.gov/documents/organization/6039.pdf> accessed 2 March 2017; Aguas Argentinas S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, (ICSID Case No. ARB/03/19) Order in response to a Petition for Participation as Amicus Curiae (19 May 2005), in particular at para 15.

[21] Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, (ICSID Case No. ARB/05/22), Procedural Order No. 1, Request for Provisional Measures, September 31, 2006, paras. 100-102, <http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C67/DC1581_En.pdf> accessed 2 March 2017.

[22] MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, (ICSID Case No. ARB/01/7), Award, 25 May 2004, para. 238; CMS Gas Transmission Company v. Republic of Argentina, (ICSID Case No. ARB/01/8), Award, 12 May 2005, para. 410.

[23] Metalclad Corporation v. Mexico, Award of 30 August 2000, 40 I.L.M. (2001) 36, para. 121; Wena Hotels Ltd v. Arab Republic of Egypt, (ICSID Case No. ARB/98/4), Award of 8 December 2000, 41 I.L.M. (2002) 896, para. 122; Técnicas Medioambientales Tecmed S.A. v. Mexico, (ICSID Case No. ARB (AF)/00/2) Award of 29 May 2003, 43 I.L.M. (2004) 133, para. 186; MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Chile, Award of 25 May 2004 <http://www.italaw.com/documents/MTD-Award_000.pdf> accessed 2 March 2017.

[24] Free Trade Commission, Statement on Non-Disputing Party Participation, 7 October 2003 <http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Nondisputing-en.pdf> accessed 2 March 2017; 2006 Amendments to the ICSID Arbitration Rules (Article 37).

[25] 2006 Amendments to the ICSID Arbitration Rules (Article 37); 2013 UNICTRAL Rules on Transparency in Treaty-based Investor-State Arbitration.

[26] Frank Spoorenberg and Jorge E. Vinuales, ‘Conflicting Decisions in International Arbitration’, Law and Practice of International Courts and Tribunals, 8 (2009), 91–114.

[27] See NAFTA Art. 1105; Article 30(3) 2012 US Model BIT; Article 20(2) of the China-Canada BIT.

[28] See Pope & Talbot Inc. v Government of Canada (Award on the Merits Phase 2) NAFTA Case (UNCITRAL) (10 April 2001) paras 111-118 holding that Canada had breached its obligation to provide fair and equitable treatment to the investor.

[29] Investing in the SDGs: An Action Plan, ed. by United Nations Conference on Trade and Development (2014), World Investment Report, 2014 (New York: United Nations, 2014), p. xxxi.

[30] Venezuela denounced and sought to renegotiate its BIT with the Netherlands in 2008; Ecuador terminated nine of its BITs with other Latin American States in 2008 and sought to terminate 13 other BITs in 2010 but only managed to denounce the BIT with Finland; Bolivia denounced its BIT with the US in 2011; South Africa denounced its BITs with the Belgium-Luxembourg Economic Union in 2012, with the Netherlands, Switzerland and Spain in 2013 and with Austria and Germany in 2014.

[31] ICSID Database <https://icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/AdvancedSearch.aspx> accessed 31 December 2015.

[32] UNCTAD, ‘International Investment Agreements Navigator’ <http://investmentpolicyhub.unctad.org/IIA/> accessed 13 December 2014.

[35] American Manufacturing & Trading, Inc. v. Republic of Zaire (ICSID Case No. ARB/93/1), Award, 21 February 1997 (hereinafter American Manufacturing Award) where Zaire had a different interpretation of Article IX of the 1984 Zaire-US BIT to that of the tribunal.

[36] COMESA Common Investment Area Agreement (23 May 2007, not yet in force) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3092> accessed 9 February 2017.

[37] SADC Protocol on Finance and Investment (FIP) (signed 18 August 2006, entered into force 16 April 2010) <www.sadc.int/files/4213/5332/6872/Protocol_on_Finance__Investment2006.pdf> accessed 2 February 2017.

[38] Luke Eric Peterson, ‘Investigation: In Aftermath of Investor Arbitration against Lesotho, SADC MemberStates Amend Investment Treaty So As To Remove ISDS and Limit Protections’, IAReporter (February 20 2017) <http://www.iareporter.com/articles/investigation-in-aftermath-of-investor-arbitration-against-lesotho-sadc-member-states-amend-investment-treaty-so-as-to-remove-isds-and-limit-protections/> accessed 21 February 2017.

[39] SADC, ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (2012) <www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf> accessed 9 February 2017.

[40] UNCTAD, World Investment Report 2016: Recent Policy Developments and Key Issues (United Nations 2016).

[41] SADC FIP Annex I, art 6.

[42] Peterson.

[43] SADC FIP, art 7(2).

[44] Peterson.

[45] CCIA Agreement art 14(1).

[46] ibid art 14(2).

[47] ibid art 14(3).

[48] Peter Muchlinski, ‘The COMESA Common Investment Area: Substantive Standards and Procedural Problems in Dispute Settlement’ in CL Lim (ed), Alternative Visions of the International Law on Foreign Investment ‑ Essays in Honour of Muthucumaraswamy Sornarajah (CUP 2016) 131.

[49] SADC Model BIT, art 5.1, Option 2.

[50] Neer v Mexico, Opinion (15 October 1926) (1926) 4 RIIA 60.

[51] See SADC Model BIT, art 5.2, Option 1 (‘…the demonstration of an act or actions by the government that are an outrage, in bad faith, a wilful neglect of duty or an insufficiency so far short of international standards that every reasonable and impartial person would readily recognize its insufficiency’).

[52] ibid art 9.

[53] ibid art 4.2; CCIA Agreement, art 17(2).

[54] Peterson.

[55] SADC Model BIT, art 4.

[56] CCIA Agreement, art 20(2).

[57] Peterson.

[58] SADC Model BIT, art 6.1.

[59] CCIA Agreement, art 20(5); SADC Model BIT, art 6.4.

[60] CCIA Agreement, art 20(6); SADC Model BIT, art 6.5.

[61] Peterson.

[62] CCIA Agreement, art 20(7); SADC Model BIT, art 6.6.

[63] CCIA Agreement, art 20(8); SADC Model BIT, art 6.7.

[64] Peterson.

[65] CCIA Agreement, art 24.

[66] ibid art 25.

[67] SADC FIP, Annex I, art 14.

[68] Peterson.

[69] SADC Model BIT, art 20.

[70] ibid art 20.1.

[71] ibid art 20.2.

[72] ibid art 21.1.

[73] ibid art 21.2.

[74] ibid art 21.3.

[75] SADC FIP, Annex I, art 10.

[76] Peterson.

[77] CCIA Agreement, art 13.

[78] SADC Model BIT, art 10.

[79] ibid art 11.

[80] ibid art 12.

[81] ibid art 13.

[82] ibid art 14.

[83] ibid 15.

[84] ibid art 16.

[85] ibid art 17.

[86] ibid art 18.

[87] Peterson.

[88] CCIA Agreement, art 26(3).

[89] ibid art 26(4).

[90] ibid art 26(5).

[91] SADC Model BIT, art 29.3.

[92] CCIA Agreement, art 28(2) and SADC Model BIT, art 29.4.

[93] SADC Model BIT, art 29.4.

[94] ibid art 29.9(b).

[95] CCIA Agreement, art 28(1) and SADC Model BIT, art 29.6.

[96] CCIA Agreement, art 28(3) and SADC Model BIT, art 29.4(c).

[97] CCIA Agreement, art 28(9).

[98] SADC Model BIT, art 19.2.

[99] ibid art 19.3.

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