The protracted African legal saga Getma v Republic of Guinea has drawn much discussion and speculation in the arbitration community recently. For good reasons. This saga has highlighted various aspects of international arbitration, including party autonomy, remuneration of the arbitral tribunal and enforcement of annulled awards, that go way beyond the borders of the African continent. Continue reading
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
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 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. Continue reading
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 on the extent of court intervention in arbitration proceedings. An earlier decision had also upheld the court’s limited ability to intercede in arbitration proceedings. Continue reading
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
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.
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
In July 2010, the South African Cabinet adopted a new investment policy framework which was aimed at modernising and strengthening the country’s investment regime. Five core measures were mandated by Cabinet for the implementation of the new policy framework: (i) development of foreign investment legislation; (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
On 4 October 2013, ICSID dispatched the arbitral tribunal’s award in Metal-Tech Ltd v the Republic of Uzbekistan. The tribunal declined jurisdiction after finding that corruption had been established “to an extent sufficient to violate Uzbekistan law in connection with the establishment of the Claimant’s investment in Uzbekistan.” Continue reading
On 17 October 2013, the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (Organisation for the Harmonization of Business Law in Africa) or OHADA celebrated its 20th anniversary under the presidency of Burkina Faso. A series of events have been organised to commemorate the event, including a meeting of business law experts in Ouagadougou to discuss the achievements and the future prospects of the organisation. Continue reading
On 31 July 2013 ICSID issued its updated caseload statistics on cases registered and administered by the Centre. 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. Continue reading
A milestone decision was passed down by South Africa’s premier court seated in Braamfontein, Johannesburg. This was in the case of Agri South Africa v. Minister for Minerals and Energy. It is a case testing the legality of the Mineral and Petroleum Resources Development Act (MPRDA) 28 of 2002 (as amended), particularly its black empowerment provisions. Simply put this piece of legislation had the effect of vesting all mineral ownership to the state. Before it came into being, mineral resources underground were owned by the land owners who in most instances happened to be farmers. These farmers had inter alia the right to exploit the minerals and to lease such mining rights to anyone on their terms. The claimants challenged it on the basis that it expropriated their property. The court ruled that there is a difference between expropriation and deprivation. And basically provided that the concept of indirect expropriation did not apply in South African law.
This article attempts to highlight the costs associated with bringing a case for arbitration at the International Centre for Settlement of Investment Disputes (ICSID) that the Parties will incur. Continue reading
UNCTAD has published a new edition of its statistics on investment treaty arbitration. Despite its title, “Recent Developments in Investor-State Dispute Settlement (ISDS)”, it just refers to investment treaty arbitration, as stated above, because an inquiry on investment disputes arising out solely of a contract between a foreign investor and a State entity is almost impossible to achieve (arbitration courts apply strict confidentiality on these matters). Continue reading
The aim of this paper is to review all the protective provisions found mostly in all BITs, whether coming from customary international law or enunciated through the BIT itself in order to illustrate the implications of those provisions so that a proper understanding of the obligations imposed therein on the host States can be illustrated.
ICSID has published a new set of statistics about its caseload during 2012 and the aggregate since it was created by the Washington Convention in 1965.
Investment treaties provide a way for investors to mitigate sovereign risk problems, including those arising from changing regulatory frameworks. Companies investing in Africa may be able to structure their investment to take advantage of the protections provided by over 400 bilateral investment treaties which African countries have entered into with developed countries. For example, Egypt has entered into over 100 investment treaties, with both developed and developing countries, while Nigeria has entered into more than 20 such treaties, including with France, Germany, the Netherlands and the United Kingdom. Continue reading