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


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

ICSID Tribunal Declines Jurisdiction when Confronted with Corruption, by Antonio Delgado

On 4 October 2013, ICSID dispatched the arbitral tribunal’s award in Metal-Tech Ltd v the Republic of Uzbekistan.[1] 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.”[2] Continue reading

ICSID Case Commentary: Tethyan Copper Company Pty. Limited v. The Islamic Republic of Pakistan (ICSID Case No ARB/12/1), Decision on Claimant’s Request for Provisional Measures, 13 December 2012, by Nida Mahmood


On 29th July 1993, BHP Minerals International Exploration Inc. (BHP) and the Balochistan Development Authority (BDA), a statutory corporation of the Province of Balochistan in Pakistan, entered into a Chagai Hills Exploration Joint Venture Agreement (CHEJVA) for exploration of deposits of gold, copper, and other minerals in the Chagai district of Balochistan.  However, pursuant to two subsequent contracts, (i) an option Agreement and (ii) an Alliance Agreement with BHP, the Claimant, Tethyan Copper Company Pty Limited, a company constituted and registered under the laws of Australia and owned in equal shares by Antofagasta Plc, a company incorporated in the United Kingdom with its headquarters in Chile, and Barrick Gold Corporation, a company incorporated in Canada, took over from BHP the exploration activities in the Chagai Hills exploration area. Continue reading

Japan’s favourable stance towards FTAs and treaty succession, by José Ángel Rueda

March 2013 will be remembered as a month in which relevant FTA negotiations were launched or reinforced by accessions of powerful States.[1] One of the most prominent actors in this period has no doubt been Japan as in just a couple of weeks it decided to join[2] existing FTA talks for the Trans-Pacific Partnership (TPP)[3] and launch FTA negotiations with the European Union (EU).[4]  Continue reading

Germany-Philippines relations not affected by Fraport case, by José Ángel Rueda

Official statements and news reports published during the last five days indicate that Germany reaffirms that the so-called Fraport case is not an obstacle for the deepening of trade and investment relations with the Philippines.

Such conclusion is the outcome of the official visit that German Foreign Minister Dr. Guido Westerwelle paid to the Philippines on 7-8 February 2013 where he met President Benigno Aquino and Foreign Secretary Alberto del Rosario.[1]

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Recent Developments regarding the Recognition and Enforcement of Foreign Arbitral Awards in Pakistan By Nida Mahmood*

The dispute resolution provision contained in a Bilateral Investment Treaty (BITs) that commonly provides for investor-State dispute resolution in a foreign arbitral forum is perhaps the single most influential reason and incentive for States to negotiate BITs with other States. This is because foreign arbitral forums are perceived to be transparent, neutral, independent, and cost effective mechanisms for settlement of those disputes that commonly are between one State and the investors of another State, in which case, the national/local courts just may have an ‘inherent national prejudice’. Continue reading

Harmonisation of Chinese Legal Culture with English Common Law Principles through International Customary Law, By Mary B. AYAD*

Chinese legal culture is compatible with ancient and current English Common Law principles in applications of international customary law construction of contracts.  Proof of this is found in a recent Australian High Court decision on the Forrest Mining case[1]  which from the Australian perspective,[2] though vague on expounding the precise legal principles underpinning its reasons,[3] sets a sophisticated and pragmatic precedent in the topical matter of the constructions of cross-border commercial contracts, international sales contracts and investor—State contracts. Continue reading