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

South Africa’s Promotion and Protection of Investment Bill: A Brief Outline, by Muhammad Mustaqeem De Gama*

Introduction

The Cabinet decision of 20 July 2010 specified that an inter-ministerial work group should commence work on an investment protection act for South Africa. Such an act would incorporate, codify and interpret core international law concepts and clarify the level of protection that investors may expect in South Africa. On 1 November 2013 the draft Bill on the Promotion and Protection of Investment [NOTICE 1087 OF 2013 in Government Gazette (GG) No. 36995] (hereinafter “the Bill”) was published for public comment. The notice provided for a three month public comment period. This period came to an end on 31 January 2014. The Department of Trade and Industry is currently assessing the public comments and will introduce the Bill to Parliament as soon as the required technical and constitutional processes have been completed. Continue reading

Africa-China Bilateral Investment Treaties: A Critique by Dr. Uche Ewelukwa Ofodile*

This Article was first published in the Michigan Journal of International Law, Vol. 35(1), 2013.  If you wish to make references to the article please follow the pagination in the Michigan Journal of International Law. 

Synopsis

The purpose of this Article is to draw attention to, raise questions about, and generate discussions regarding the emerging norms, legal context, and long-term development-implications of South-South foreign direct investment (“FDI”) and South-South bilateral investment treaties (“BIT”). This Article seeks to refocus the discourse about FDI and BITs on developing countries in their role as exporters of capital and in the context of the much-touted new geography of investment. Can South-South BITs play a positive role in promoting development in sub-Saharan Africa any more than the Africa-North BITs? Is China concluding development-focused BITs with countries in Africa? The Article identifies the BITs between China and countries in Africa, analyzes the main provisions and the development-dimension of these BITs, and examines the extent to which they differ from model BITs used by Western countries. Continue reading

South Africa’s approach to the implementation of its Investment Policy Framework by Mustaqeem De Gama & Rafia De Gama*

  1. Background

In July 2010[1], the South African Cabinet adopted a new investment policy framework which was aimed at modernising and strengthening the country’s investment regime.[2] Five core measures were mandated by Cabinet for the implementation of the new policy framework: (i) development of foreign investment legislation;[3] (ii) review and termination of existing old generation BITs; (iii) development of a new model BIT; (iv) BITs will only be entered into on the basis of compelling economic and political reasons; and (v) the establishment of an Inter-Ministerial Committee (IMC) to oversee the implementation of these measures. Continue reading

Awaiting the Trans-Pacific Partnership, by Antonio Delgado

Last month, the leaders of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam announced that the negotiations for completion of the Trans-Pacific Partnership (“TPP”) were on track. Progress was made on the legal texts and annexes that will regulate a diverse range of sectors that include goods and services, investment, financial services, government procurement, and temporary entry markets. The focus of the TPP is now aimed at resolving the outstanding issues and achieving a final agreement by the end of this year.[1] Continue reading

New ICSID Statistics (2013-2) made public, by José Ángel Rueda

On 31 July 2013 ICSID issued its updated caseload statistics on cases registered and administered by the Centre.[1] As of 30 June 2013 ICSID had registered 433 cases under the 1965 ICSID Convention and the 1978 Additional Facility Rules (AFR). It had registered 14 cases in 2013 until the closure of that document.[2]  Continue reading

Pakistan’s BIT Dilemma: Understanding Why a ‘Model’ BIT may not be the Best Approach, by Nida Mahmood

Pakistan is on its way to develop its own ‘Model’ Bilateral Investment Treaty (BITs) as the standard international investment treaty to seek and attract more foreign investment.[1] Such ‘Model’ investment treaties usually contain blanket and comprehensive provisions to cater to the diverse relationships that a State may have with other potential capital exporting States and in this way, a standard-form contract-like treaty is perpetuated to achieve a harmony in terms of obligations that a State is prepared to undertake as regards investments to and from its territory.  Continue reading