Africa

African states are party to over a thousand investment agreements, the vast majority of which have been signed with non-African countries.

In 2006, Members of the Southern African Development Community (SADC) (Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland) signed the SADC Finance and Investment Protocol that also includes the ISDS mechanism. Only two claims have been registered under these terms, both against Lesotho (but the governments in the region do not typically disclose such information). In 2016 amendments to the protocol were adopted. They eliminated ISDS provisions (only state-to-state arbitration remained) and narrowed the scope of investors’ rights.

In South Africa, shortly after settling a dispute with foreign mining companies over its new post-apartheid mining rules (Piero Foresti & Others case), the government began to withdraw from bilateral investment treaties (BIT) that include ISDS, arguing they belonged to a bygone era. It claimed BITs focus on the interests of investors from developed countries and do not address concerns of developing countries.

The South African government decided to develop a new model BIT and strengthen its domestic legislation in regard to the protection offered to foreign investors, such as compatibility of BIT-type protection with South African law. South Africa also sought to incorporate legitimate exceptions to investor protection where warranted by public interest considerations.

Provisions of South Africa’s new model BIT have been incorporated into SADC’s. This model sets out provisions that mitigate the risks of earlier treaties and leaves open the option for state-to-state dispute settlement in addition to investor-state dispute settlement procedures.

In 2014, voices from the Namibian government cast doubts on the correlation between foreign direct investment and investment treaties including ISDS. They argued that ISDS represented a risk for developing countries, due to important legal fees and awards which can pose a significant budgetary threat. Further, statistics show most claimants come from developed countries.

About 11% of all arbitration disputes have involved African states.

In 2013, an arbitration court ordered Libya to pay US$935 million in a dispute over a land-leasing contract for a tourism project, making it one of the largest known awards to date.

Egypt has been the fifth most targeted state worldwide with 34 registered ISDS cases against it. Tanzania has been the most targeted country in sub-Sahara Africa with six disputes, all of which were initiated by European investors.

Photo: Hansueli Krapf / CC BY-SA 3.0

(April 2020)

Globe Newswire | 15-Aug-2021
Winshear Gold Corp. has filed a case at ICSID against Tanzania for the expropriation of the company’s retention licenses, claiming the country has breached its obligations under the Tanzania-Canada BIT.
Bloomberg | 12-Aug-2021
Shell didn’t say in its statement if it will withdraw the related arbitration claim.
Les Echos | 12-Aug-2021
Shell n’a pas indiqué dans sa déclaration si elle retirerait sa procédure d’arbitrage liée à cette affaire.
Media Congo | 9-Aug-2021
New evidence from a UN report and a high-profile investor arbitration case is casting a spotlight on Rwanda’s role in sophisticated smuggling networks that extract gold and coltan from Congolese conflict zones and funnel the strategically important minerals illicitly into global supply chains.
The Globe and Mail | 6-Aug-2021
New evidence from a UN report and a high-profile investor arbitration case is casting a spotlight on Rwanda’s role in sophisticated smuggling networks that extract gold and coltan from Congolese conflict zones and funnel the strategically important minerals illicitly into global supply chains.
Global Cement | 4-Aug-2021
France-based Vicat raised a case against the Egyptian government with the International Centre for Settlement of Investment Disputes in late June 2021. It concerns its cement production business.
The Guardian | 3-Aug-2021
Ahead of the African Continental Free Trade Agreement (AfCFTA) implementation in Nigeria, the Nigerian Institute of Chartered Arbitrators and other stakeholders are seeking dispute resolution mechanisms that will address concerns of non-state entities.
Bulawayo | 28-Jul-2021
Bernhard von Pezold and his family have enlisted the help of a US federal court in Washington DC in enforcing a US$277 million arbitral award against Zimbabwe.
Market Screener | 27-Jul-2021
Indiana Resources files a memorial on the arbitration with Tanzania over the expropriation of the Ntaka Hill Nickel Project, whereby it claims the amount of AU$127 million, including interest which continues to accrue.
Le Matinal | 5-Jul-2021
Les tentatives de Dawood Rawat de renverser un jugement antérieur ont échoué devant le Tribunal de Première Instance de Bruxelles.

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