ICSID Review | 10 March 2020
Investor–State Dispute Settlement using the ECOWAS Court of Justice: An analysis and some proposals
by Matthew Happold
In the light of increasing discontent with arbitration as a method of investor–State dispute settlement (ISDS), alongside proposals for the establishment of court systems for the settlement of such disputes, this article suggests that such a mechanism might already be available for West African States in the form of the Court of Justice of the Economic Community of West African States (ECOWAS). The ECOWAS Court of Justice, the article shows, can already deal with a variety of investor–State disputes, while reforms are suggested to extend its investment jurisdiction and render it more effective. Such initiatives, it argues, would assist in developing African States’ role as ‘investment rule makers’ rather than ‘rule takers’, as well as further ECOWAS’s mission to promote economic integration within West Africa.
The last decade has seen both an exponential growth and increasing and widespread criticism of investor–State dispute settlement (ISDS) through arbitration.2 Despite various and continuing attempts at reform,3 criticism has not abated and a number of States have sought to terminate treaties into which they have entered and which provide for ISDS or, at least, have resolved not to enter into new ones.4 Following virulently expressed concerns and sustained lobbying, the European Union (EU) and Canada re-negotiated their Comprehensive Economic and Trade Agreement (CETA) to permit an investment court system for the settlement of investor–State disputes under the treaty’s investment chapter.5 As reflected in CETA and in the EU–Singapore and EU–Vietnam investment protection agreements,6 the EU’s policy now is to establish a permanent Multilateral Investment Court to replace the various bilateral dispute settlement procedures in its current and future trade and investment agreements.7
The fact that the EU’s proposals seek to substitute one form of ISDS procedure for another, however, indicates that the fundamental rationale for such a dispute settlement system remains: the fear that resort to national courts leads to ‘hometown justice’, to outsiders’ disadvantage.8 This is not a fear that is restricted to developing States’ justice systems.9 It arises not solely out of concerns about national courts’ potential partiality but also from worries about delay and lack of judicial expertise. Whether wholly justified or not, such concerns are real, so that the establishment of some form of ISDS taking them into account does not seem without value. Indeed, the European Court of Justice, which was so critical of ISDS in its Achmea decision,10 has recently began to assert a role as protector of foreign investors within the EU;11 marking an implicit recognition that, despite the principles of ‘mutual trust’ and ‘sincere cooperation’, national justice systems within the EU do not always provide a satisfactory level of protection.12
This article suggests that for States in West Africa there might already exist a ready-made investment tribunal in the form of the Court of Justice of the Economic Community of West African States (ECOWAS). Indeed, the ECOWAS Court itself seems to be conscious of the need for such an institution and keen to play such a role. At the opening of the Court’s 2017–18 legal year,13 the Court’s Chief Registrar, Tony Anene-Maidoh, stated that:
“ As a Community, we cannot fully attract foreign direct investment into our region without assuring investors of the availability of a Regional Arbitration forum for dispute resolution … [The Community was] fortunate that the 1993 ECOWAS revised Treaty has provisions for the establishment of an Arbitration Tribunal for the Community under Article 16.14”
What this article will suggest, however, is that although it might be desirable, activation of the Court’s arbitral jurisdiction is not necessary for it to fulfil such a function. Not only might the Court already, to some extent, be able to do so but the foundations exist to permit the ECOWAS Member States, if they wished, to expand its jurisdiction over investor–State disputes, even without further treaty making. Such proposals might appear quixotic at a time when African States are said to be turning against international adjudication.15 But it will be argued that the reforms proposed would respond to recent critiques of ISDS, benefit both ECOWAS Member States and investors in them, and accord with recent developments seeking to promote an ‘Africanization’ of international investment law
II. THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES
A regional economic integration organization established in 1975,17 ECOWAS now comprises 15 States across West Africa.18 Modelled originally on the (then) European Community, ECOWAS is one of several institutions in Africa tasked with developing economic integration across the continent.19 The principal aim of the organization, as set out in the ECOWAS Treaty, is ‘to promote co-operation and development in all fields of economic activity’20 through the achievement of a number of specified goals, not originally including the promotion and protection of cross-border investment.21 The Community, however, experienced considerable difficulties in its early years, leading to a revision of its Treaty in 1993 in an attempt to revitalize the organization.22 New Community institutions were established and the mandate of the Community was extended to include issues of democratic governance, human rights, social integration and regional security.23
The 1993 Revised ECOWAS Treaty also sought to revitalize economic integration as a central aim of the Community. It extended the list of aims and objectives of the Community to include the establishment of a common market, an economic union and a monetary union, and the harmonization of environmental protection policies.24 For the first time, it also acknowledged the importance of the private sector in economic integration.25 Investment promotion and protection became Community objectives, so as to ensure ‘the promotion of joint ventures by private sector enterprises and other economic operators, in particular through the adoption of a regional agreement on cross-border investments’, and ‘the harmonisation of national investment codes leading to the adoption of a single Community investment code’.26
Pursuant to its investment competence, in 2008 the Authority of Heads of State and Government (the Authority) concluded an ECOWAS Supplementary Act on Investments.27 The Authority serves as ECOWAS’s ultimate governing body,28 and can adopt Supplementary Acts,29 which are binding on the Community institutions and the Member States, and are ‘directly applicable’ in the latter.30 The preamble to the 2008 Supplementary Act refers to the competence of the Community to regulate matters of investment protection31 and emphasizes the importance of investment in achieving development goals.32 The principal reason for the adoption of the Act, however, seems to have been that ‘national investment codes in force in Member States offer investors different incentives and protection measures’ in contradiction to ECOWAS’s integration goals.33
So it can be seen that the ECOWAS system grants the Community the competence to regulate matters of foreign investment, which the Community has exercised by adopting the 2008 Supplementary Act on Investments.34 What remains to be determined is the extent to which foreign investors can use Community institutions, in particular the ECOWAS Court of Justice, to protect their interests. To answer that question, the next two sections examine the jurisdiction of the Court and the ways in which it might be able to address cases involving foreign investors.
III. THE ECOWAS COURT OF JUSTICE
The ECOWAS Court is the organization’s judicial organ. It is currently composed of five judges selected by the ECOWAS Member States35 and has its seat in Abuja, Nigeria. The Court was established in 1991 by the Protocol on the Community Court of Justice,36 but it was not until 2005, through a Supplementary Protocol, that private persons were granted direct access to it.37
Under Article 9 of its amended Protocol, the Court now has jurisdiction to adjudicate four categories of disputes. The first is disputes arising under Community law: that is, concerning the interpretation, application and (with regard to subsidiary legislation) the legality of the ECOWAS Treaty and other ECOWAS legal instruments; Member States’ compliance with their obligations under Community law; and the liability of the Community itself.38 The second is allegations of human rights violations ‘that occur in any Member State’.39 The third derives from the Court’s power to act as the Arbitration Tribunal of the Community, at least until the Member States establish such a tribunal as envisaged in the ECOWAS Revised Treaty.40 Fourthly and finally, the Court has jurisdiction ‘over any matter provided for in an agreement where the parties provide that the Court shall settle disputes arising from the agreement’.41
Article 9, however, must be read in conjunction with Article 10 of the Protocol, which sets out who can bring claims before the Court. This provides that access to the Court is granted only to ‘[i]ndividuals and corporate bodies in proceedings from the determination of an act or inaction of a Community official, which violates the rights of the individuals or corporate bodies’42 and to ‘[i]ndividuals on application for relief for violation of their human rights’.43 In other cases, Member States and organs of the Community can bring claims, and officials of the Community have access to the Court in employment disputes,44 but individuals and corporations otherwise lack standing, albeit that Member States’ courts can request preliminary rulings from the ECOWAS Court on the interpretation of the ECOWAS Treaty, protocols or regulations.45 The resemblance to the Court of Justice of the European Union is clear:46 only acts of the Community itself can be challenged directly before the ECOWAS Court for violations of Community law. Accordingly, this section will move straightaway to look at the Court’s second basis of jurisdiction (allegations of human rights violations) before moving to examine the other two bases of jurisdiction set out in article 9: the Court’s role as the ECOWAS Arbitration Tribunal and its consensual jurisdiction. Section IV will then consider a potential basis of jurisdiction unmentioned in article 9: the ECOWAS Supplementary Act on Investments.
A. The Court’s Human Rights Jurisdiction
The Court’s human rights jurisdiction grants direct access to the Court to applicants, who claim that ECOWAS Member States have violated their rights under the African Charter on Human and Peoples’ Rights47 or an applicable human rights treaty. Indeed, examination of the Court’s jurisprudence shows that it has so far largely dealt with cases alleging human rights violations.48
In the past, investors have relied on human rights norms to claim redress for mistreatment by governments, the most famous example being the award of the European Court of Human Rights of over €1.8 billion to Yukos shareholders in compensation for Russia’s violations of the European Convention on Human Rights during tax proceedings against the company, its liquidation and the forced sale of its assets.49 However, the European Convention is exceptional in that it explicitly grants rights to legal persons.50 Most human rights treaties have been interpreted as conferring rights upon natural, not legal, persons, and their monitoring bodies have refused to entertain claims by corporations that claim violations of their rights.51 The general rule, insofar as one can be ascertained, is that only individuals or groups of individuals (peoples, minorities and indigenous peoples) possess human rights.52 Indeed, many of the interests protected by particular human rights are not interests that legal persons have,53 which is why, even under the European system of human rights protection, companies do not enjoy the full range of rights enumerated in the European Convention.54 By contrast, for obvious reasons, the majority of claimants in investment treaty arbitrations are corporations, which enjoy the full panoply of rights conferred on investors in such treaties and whose standing to bring proceedings to vindicate their rights is expressly recognized.55
The jurisprudence of the ECOWAS Court on this issue, however, has not spoken with one voice. One stream of jurisprudence followed the English-language wording of article 10(d), which refers only to ‘individuals’,56 to hold that corporations cannot bring claims.57 But another series of cases came to the opposite conclusion.58 In one early judgment, CNDD v Côte d’Ivoire,59 the Court held that legal persons could file complaints under its human rights jurisdiction on the basis of the Court’s interpretation of the French-language version of article 10(d), which refers to ‘“toute personne victime” without stating whether it is a question of natural person or legal person, or still, whether it is the two at the same time’.60 The Court thus held that ‘the concept of “victime” enables one to understand that it is a question of adjudicating on complaints from any person who may claim that he/it has been harmed or that he/it has suffered from violation of his/its recognised rights’.61 In SYNECOCI et autres c Côte d’Ivoire,62 the Court concluded that ‘l’article 10[(d)] … ne distinguant pas entre personnes physiques ou morales, mais exigeant toujours un préjudice’.63 And in FIDC v Liberia64 the Court was willing to permit the applicant, a corporation, to bring an action that claimed violations of its rights to a fair hearing and to property under the African Charter on Human and Peoples’ Rights,65 but concluded that the applicant’s claim failed to state a case.
“ [T]he Applicant is a legal entity duly registered under the laws of the Republic of Liberia and thus has a legal capacity to bring this action … However, this action must be considered inadmissible in view of the fact that its substance is devoid of the foundation of human rights violations.66”
An explanation for this somewhat perplexing conclusion can be found in the Court’s recent judgment in Dexter Oil Ltd v Liberia.67 There, the applicant brought a claim under article 10(d) of the Protocol, arguing that the Liberian authorities’ freezing of its bank account had violated its right to property. But could the applicant, a Liberian corporation, claim under article 10(d)? The Court acknowledged the divergence in its previous jurisprudence on the subject.68 There was consequently, it considered, a need to reconcile the divergence.69 In its view, article 10(d) generally gave individuals access to the Court only to allege violations of their human rights. However, corporations also enjoyed a more limited number of rights under international law, allegations of violations of which could ground claims before the Court.
“ The established exceptions under which corporate bodies can ground an action are; rights that are fundamental rights not dependent on human rights and they include right to fair hearing, right to property and right to freedom of expression.70”
Accordingly, the applicant was entitled to bring its claim under article 10(d), albeit that, on its merits, the claim failed.
One case upon which the Court relied in coming to this conclusion was Ocean King Nigeria Ltd v Senegal.71 In that case, the applicant was the owner of a ship that had been abandoned at sea and salvaged by another company, Euskalduna de Pesca, which towed it into a Senegalese port. A series of court proceedings followed before the Senegalese courts between the applicant and Euskalduna de Pesca, with the vessel eventually being awarded to Euskalduna de Pesca in lieu of the applicant’s payment of towing fees. Before the ECOWAS Court, the applicant, inter alia, alleged a violation of its right to fair hearing because, it claimed, it had not been properly informed of the proceedings. The respondent State objected that the applicant lacked standing to bring a human rights claim before the Court.
The Court agreed: corporate bodies could not bring human rights claims under article 10(d) of the Court’s Protocol.72 But it went on to state that:
“ [T]he Applicant was complaining, inter alia, of a denial of the right to fair hearing which is a fundamental right, open to any party who is affected by a tribunal’s decision. That right is not dependent on human rights, and for that reason a party who has such a complaint of denial of fair hearing should not be thrown out of a court without first being heard. That was sufficient justification for this Court to embark upon hearing this application in the first place. Being a Member State of the Community, the defendant owes an obligation to every ECOWAS citizen or entity to ensure fair hearing within its territory, failing which this Court will have the right to entertain an application by an aggrieved party, even if it is based on the Court’s inherent jurisdiction.73”
This was a bold claim, made even more daring by the fact that it purported to be based on an exercise of the Court’s ‘inherent jurisdiction’, which is usually thought to exist to permit courts properly to exercise their existing powers, not to extend them.74 The Court also failed to describe what the content of the ‘fundamental right’ to a fair hearing might be.75 So, although the Court in Dexter Oil might have interpreted the judgment in Ocean King Nigeria rather creatively, it did not do so in an unprincipled manner. The claim that the Court had some extra-statutory jurisdiction was quietly abandoned, while corporations’ ‘fundamental’ right to a fair trial was equated to the corresponding human right to a fair trial and consequently grounded in international human rights law.76
The only loose end from Ocean King Nigeria would appear to be the statement by the Court in that case, unglossed in Dexter Oil,77 that the obligation on ECOWAS Member States to ensure a fair hearing extends ‘to every ECOWAS citizen or entity’.78 Whether this statement, when made, was meant to exclude non-ECOWAS persons is unclear but it might be thought to create some uncertainty as regards the ambit of the obligation. However, there is nothing in Dexter Oil to suggest that corporations’ rights depend on their nationality and the Court’s description of such rights as ‘rights that are fundamental and necessary for the existence of a corporate body’79 argues to the contrary. If the Court were to follow other supranational courts with a human rights jurisdiction that permits claims by corporations, the nationality of corporate claimants would be immaterial.80
On the basis of Dexter Oil, the Court’s jurisprudence now appears to recognize that corporations have the right to bring claims under article 10(d), including claims for breach of the right to property, to a fair trial and to freedom of expression.81 However, the matter can still not be considered wholly beyond doubt. In its judgment in Taakor Tropical Hardwood Co Ltd v Sierra Leone,82 handed down just two weeks before that in Dexter Oil, the Court held that the applicant, being a corporation, could not utilize article 10(d) to seise the Court, as that provision only gave individuals standing to sue for human rights violations.83 No reference was made in Dexter Oil to the Court’s judgment in Taakor Tropical Hardwood, despite the fact that Justice Asante, the Court’s President, presided in both cases.84 So although it is difficult to imagine that Dexter Oil was decided per incuriam, whether it reflects the Court’s settled opinion is as yet unclear.
On other grounds, though, the ECOWAS Court seems a particularly attractive venue for the bringing of human rights claims. In contrast to investor-State treaty arbitration, which, save exceptionally, does not require the exhaustion of domestic remedies before a claim can be brought,85 human rights adjudicators generally do.86 The ECOWAS Court, however, is unusual in imposing no such requirement.87 The Court has repeatedly held that domestic remedies need not be exhausted to permit it to consider claims under its human rights jurisdiction,88 so no resort to national courts needs be had before seising it. In contrast to other human rights jurisdictions, which can impose stringent limitation periods,89 the ECOWAS Court has held that there is no time limit for bringing human rights claims before it.90 And, finally, although the ECOWAS Court has not yet gone so far as the European Court of Human Rights in Yukos,91 it has displayed a willingness to compensate applicants for damage to their economic interests resulting from ECOWAS Member States’ human rights violations. So, in 2015, in Chude Mba v Ghana, the Court awarded the applicant US$800,000 after the Ghanaian authorities halted work on his construction of two apartment blocks on a plot of land that he had acquired in Accra.92
What does seem clear, however, is that corporations cannot be respondents before the Court under article 10(d). Despite the rather ambiguous wording of article 9(4),93 on several occasions the Court has stated that, as human rights treaties only impose obligations upon States, only States can be respondents to human rights claims before it.94 Thus, in Socio-Economic Rights and Accountability Project (SERAP) v Nigeria,95 a case which was originally brought not only against Nigeria but also against seven oil companies active in the Niger Delta, the ECOWAS Court found that although the applicant had standing to bring the claim,96 the seven companies could not be sued before it for human rights violations. As a result, the claim was continued solely against Nigeria. Such reasoning would also seem to prevent respondent States making counterclaims against corporations bringing human rights claims against them before the Court under article 10(d).97
B. The Court’s Arbitral Jurisdiction
Despite the call by the Court’s Chief Registrar,98 the Court’s power to act as the Arbitration Tribunal of the Community currently remains a dead letter, for the simple reason that no steps have been taken to activate it. Article 9(5) of the Court’s Revised Protocol provides that: ‘Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have the power to act as arbitrator for the purpose of Article 16 of the Treaty.’ Article 16 of the ECOWAS Revised Treaty establishes an Arbitration Tribunal of the Community but goes on to state that ‘[t]he status, composition, powers, procedure and other issues concerning the Arbitration Tribunal shall be as set out in a Protocol relating thereto’ and no such protocol has, as yet, been adopted. In the absence of such a protocol or cognate instrument it would seem that the ECOWAS Court cannot act in place of the as-yet unestablished Arbitration Tribunal, because its powers and jurisdiction as an arbitral tribunal remain undefined. The initiative remains with the ECOWAS Member States, who have so far proved unwilling to act. Whether and how they should do so will be discussed in Section VI.
C. The Court’s Contractual Jurisdiction
Article 9(6) of its Protocol gives the Court jurisdiction ‘over any matter provided for in an agreement where the parties provide that the Court shall settle disputes arising from the agreement’. In Petrostar (Nigeria) Ltd v Blackberry Nigeria Ltd, the ECOWAS Court was willing to determine a contractual dispute between two private parties on the basis of a forum-selection clause in their agreement that provided that disputes should be settled by it.99 The case itself was not a complex one, although it did involve allegations of fraud and bribery (by the Applicant) and frustration, undue influence and duress (by the Defendant), and the Court did hear witnesses.100 However, the Court was not clear as to what law it was applying, simply finding for the Applicant on the basis of the unimpeached evidence of its witnesses and the terms of the contract between the two parties.101
So the ECOWAS Court might provide a forum for the settlement of investors’ contractual disputes with host States. Indeed, given the Court’s statements on a number of occasions that as an international court it applies international law,102 it might be more willing than ECOWAS Member States’ national courts to apply choice-of-law clauses allowing resort to international law.103 Further, given the distinction between treaty and contract claims,104 it would seem that use of the ECOWAS Court by investors in such a manner would not preclude subsequent resort to international arbitration under an applicable BIT.105
IV. THE ECOWAS SUPPLEMENTARY ACT ON INVESTMENTS
There is, however, another way in which the ECOWAS Court might have jurisdiction over investor–State disputes: under the already-mentioned ECOWAS Supplementary Act on Investments.106 The Supplementary Act on Investments gives the usual range of protections to intra-ECOWAS investors,107 which might be thought as having some importance given the paucity of bilateral investment treaties (BITs) between the various ECOWAS Member States,108 albeit that the Act also imposes various obligations on investors.109 But a reading of certain provisions of the treaty also suggests that its coverage in some cases might also extend to non-ECOWAS investors. Such a reading might also be argued to comport with the policy behind the Supplementary Act, which was to impose a level playing field among ECOWAS Member States as regards the promotion and protection of foreign investments.110 The Supplementary Act, however, suffers from confusing and at times contradictory drafting, which makes it difficult to ascertain what the intention of the drafters was.
The Supplementary Act ‘applies to all investments by an investor, whether the investment is made before or after the entry into force [of the Act]’.111 Investments are defined in the usual wide manner.112 Investors, however, are defined in article 1(d) of the Supplementary Act not only as ‘any individual or company of any Member State of ECOWAS’ but also more widely as any ‘company that has invested or is making an investment in the territory of a [ECOWAS] Member State’.113 But this definition conflicts with that in article 1(a), which provides that ‘“company” means any corporate entity constituted or organized under the applicable law of any ECOWAS Member State’,114 which would render the second limb of article 1(d) largely otiose by preventing non-ECOWAS corporate investors from benefiting from any of the Act’s protections. Such an interpretation would not, however, appear to exclude non-ECOWAS individual investors from the Act’s ambit, which seems an odd result.
In addition, although most of the obligations incurred by ECOWAS Member States under the Act are specified as being towards investors or investments made by investors of other Member States, the prohibition of expropriation in article 8(1) of the Act is unqualified,115 providing that:
“ No Member State may directly or indirectly nationalize or expropriate an investment in its territory (‘expropriation’), except: a) for a public purpose; b) on a non discriminatory basis; c) in accordance with due process of law; and d) on payment of compensation in accordance with Paragraphs (2) to (6).”
Following article 1(d), this might appear to suggest that any investor, regardless of their nationality, in the territory of any ECOWAS Member State can rely on it.116 But, contrary to this reading, article 8 appears in Chapter II of the Supplementary Act, which is entitled ‘Standards of Treatment to Member States’ Investors’. Finally, article 33(1), the Supplementary Act’s provision on dispute settlement procedures, refers to disputes ‘between Member States, or between a Member State and an investor, or between an investor and a host State’117 without qualification of nationality, again suggesting that such procedures can also be utilized by any investor, not just those holding the nationality of an ECOWAS Member State.
Extraneous considerations do not seem to take us much further either. It is often argued that investment treaties are based on reciprocity. That, however, is an issue of policy rather than of legal principle. States can confer rights on third parties and have, in the past, done so by treaty.118 For example, in Islamic Republic of Iran Shipping Lines v Turkey the European Court of Human Rights held that the applicant company had standing under article 34 of the European Convention on Human Rights to bring a claim before the Court,119 despite the company’s incorporation in Iran, a non-party to the Convention.120 What was important was not its nationality but its status as a ‘non-governmental organisation’ within the meaning of article 34 of the Convention.121 The same might be said as regards the definition of ‘investor’ in article 1(d) of the Supplementary Act (although, as we have seen, article 1(a) argues to the contrary, as least as regards corporations). Moreover, the Supplementary Act is not, strictly speaking, a treaty but a form of delegated legislation enacted by the ECOWAS Authority under the ECOWAS Revised Treaty. As such, it might be argued that it is more akin to a piece of national legislation, such as an investment code, providing foreign investors with access to a particular mechanism to settle disputes under the code with their host States,122 so that there is no need to imply any relation of reciprocity. Indeed, as regards article 8(1) of the Act, it might further be argued that what is conferred is merely a procedural rather than a substantive right. As the prohibition against expropriation is a rule of customary international law,123 all the Supplementary Act does is permit non-ECOWAS investors to enforce it using its mechanisms, albeit that the title of the chapter containing article 8 militates against this conclusion.
Even as regards ECOWAS investors, however, the text of the Act gives rise to difficulties. Article 33 of the Supplementary Act mandates a six-month ‘cooling-off’ period after the issue of a ‘notice of intention to initiate arbitration … using a dispute settlement procedure prescribed below’ during which the parties to the dispute should make efforts to reach an amicable settlement. If no amicable settlement is reached, however, the dispute ‘may be submitted to arbitration’ before either ‘(a) a national court; (b) any national machinery for the settlement of investment disputes; [or] (c) the relevant national court of the Member States’.124 It can be seen that the use of the term ‘arbitration’ in article 33 is a misnomer and further confirmation of this is found in the default method of dispute settlement to be utilized when parties disagree as to which of those possible fora should be adopted, which is the ECOWAS Court.125 But there is no specific provision in the Protocol on the Community Court of Justice that provides for the Court to have jurisdiction over investor–State disputes under the Supplementary Act.
Article 9(6) of the Protocol might seem to permit the Court to exercise jurisdiction in such cases. Article 33 of the Supplementary Act can be interpreted as constituting an offer by the ECOWAS Member States open to those satisfying its conditions, which qualified investors can accept by initiating proceedings under article 33(1) against any of them, alleging violations of the Act’s investment protection provisions, thus perfecting an agreement between the two parties to settle their dispute before the Court (at least if they fail to reach an amicable settlement and cannot agree on another of the available fora).126 The wording of article 9(6) of the Court’s Protocol,127 however, suggests that for the provision to apply to give the Court jurisdiction over a dispute there must be privity between the parties to it, because article 9(6) refers to ‘an agreement where the parties provide that the Court shall settle disputes arising from the agreement’. In addition, under article 33(7) of the Supplementary Act, resort to the ECOWAS Court can be had only if the parties to the dispute cannot agree on one of the procedures under article 33(6),128 so that it might be said that the initiation of proceedings under article 33(1) does not indicate any agreement to submit disputes to that particular forum but simply a lack of agreement on choosing any other.
Even if they cannot be surmounted, however, these difficulties can be circumvented. Given that the ECOWAS Revised Treaty provides that Supplementary Acts are binding on the Community institutions,129 which includes the ECOWAS Court,130 it can be argued that the basis of the Court’s jurisdiction is to be found in the Supplementary Act itself. The better view, therefore, is that investors in ECOWAS Member States may bring claims that their rights under the Supplementary Act have been violated before the ECOWAS Court and, at least with regard to claims of expropriation under article 8 of the Supplementary Act, that this might include non-ECOWAS investors.131 Even if non-ECOWAS investors cannot bring claims directly, because the Supplementary Act lacks any denial of benefits clause,132 it seems nonetheless to permit claims through locally incorporated subsidiaries. The only requirement appears to be that such entities are ‘constituted or organized under the applicable law of any ECOWAS Member State’,133 without any additional conditions regarding their corporate structure or the place of their business activities.
V. SOME PRELIMINARY CONCLUSIONS
From the foregoing survey it can be seen that the ECOWAS Court has—or might have—jurisdiction over a wide variety of possible claims by investors in ECOWAS Member States. There seems little doubt that the Court can adjudicate contractual disputes between foreign investors and their ECOWAS Member host States if their contracts so provide. It seems equally clear that ECOWAS Member States investors in other ECOWAS Member States benefit from the protections in the ECOWAS Supplementary Act on Investments, including the right to bring claims before the ECOWAS Court. It is less clear whether corporate investors can bring claims against ECOWAS Member States under the Court’s human rights jurisdiction but the Court’s most recent jurisprudence supports such a conclusion, and it seems uncontentious that individual investors can bring human rights claims. There is an argument that non-ECOWAS Member States investors might enjoy at least some rights under the Supplementary Act on Investments—in particular, the ability to bring claims before the ECOWAS Court alleging expropriation of their investments—but it would take a bold applicant to bring such a claim.
What can, however, be concluded is that the ECOWAS Court already has the capacity to act as an investment tribunal, insofar as it has jurisdiction to adjudicate on various categories of potential disputes between investors and their ECOWAS Member host States. Moreover, there is no requirement for applicants to exhaust domestic remedies, even when they bring human rights complaints before the Court.134 But the Court’s ability to act is divided between its various jurisdictions and the ambit of its powers is unclear, as a result both of ambiguities and inconsistencies in the drafting of the Court’s Protocol and the ECOWAS Supplementary Act on Investments, and of divergences in the Court’s own jurisprudence. So the current situation is by no means optimal. The ECOWAS Court may be an available forum, but is it a desirable one, particularly when an investor might have the option of bringing its claims under an applicable BIT? And is its development into such an institution something that the ECOWAS Member States would—or should—want to promote?
Although a number of regional courts have been established in Africa, recent years have seen something of a backlash against them.135 ECOWAS has not been immune from this development. In 2009, The Gambia, having lost one claim that it had committed torture and facing another,136 proposed revisions to the Court’s Protocol that would have substantially restricted the Court’s human rights jurisdiction.137 Following a mobilization of regional NGOs against the proposals, they were defeated; the ECOWAS Committee of Legal Experts recommended against them and the Council of Justice Ministers endorsed the recommendation. More recently, however, proposals, put forward as part of a scheme to render ECOWAS’s operations more efficient and cost effective,138 to reduce the number of judges on the Court from seven to five and permit judges only one four-year non-renewable term on the Court were adopted with effect from the appointment of new judges to the Court in 2018.139 These reforms threaten to have negative implications for the Court’s ability to handle its increasing caseload, as well as for its institutional memory,140 and they continue to be opposed by the judges of the Court.141
The defeat of the 2009 proposals, however, gives grounds for greater optimism. And the judges’ campaign to restore their number to seven seems to have gained some support.142 So it may be incorrect to see the current reform proposals as part of a wider backlash, not least because the ECOWAS institutional reform project’s scope extends well beyond the Court. ECOWAS has invested in its Court and appears to remain committed to its success, even if its Member States are concerned that the Court—and the other ECOWAS institutions—work efficiently to contribute to the objectives of the ECOWAS Revised Treaty. Proposals to develop the Court’s activities in an area of potential direct benefit to the Member States thus might not be wholly unwelcome. Indeed, development of the Court as an investment tribunal, it might be argued, would directly contribute to economic integration within ECOWAS.
A further reason exists why proposals might fall on fertile ground. They mirror existing developments in Africa at both regional and sub-regional levels. In 2017, the African Union adopted the Pan-African Investment Code, the ‘first continent-wide African model investment treaty’.143 And in 2016, Morocco and Nigeria adopted a ‘new generation’ BIT.144 Both instruments share features with the ECOWAS Supplementary Act, in particular as regards investors’ obligations. So there appears to be an appetite both to develop and to harmonize investment law in the continent.
VI. SOME MODEST PROPOSALS
Here, the article will focus on what ECOWAS, rather than the Member States individually, can do. It would, of course, be open to the Member States to terminate their BITs so that investors lose their rights under those treaties, subject to any applicable ‘sunset clauses’. But that may be unrealistic, and in any case cannot presently be required by ECOWAS as an organization. The proposals are also additional to ensuring the Court is adequately funded and resourced, which is necessary whatever the specific role it is called upon to play. But there are, it is suggested, three things that the organization could do itself if it wished to increase the effectiveness—and the attractiveness—of the ECOWAS Court as a forum for the settlement of investment disputes.
A. Amendment of the Supplemntary Act on Investments
The ECOWAS Authority could decide to amend the Supplementary Act on Investments. This would require consensus among the Member States.145 But such a decision would not require ratification by the Member States according to their various constitutional provisions for the adoption of treaties, as it would become binding on Member States and the ECOWAS institutions on its coming into force 60 days after its publication in the ECOWAS Official Gazette.146 Amendment of the Act would thus be a simple way to change the scope and substance of the Court’s jurisdiction over investor–State disputes.
Various options would be open to the Authority. A minimalist approach would simply engage in an exercise of ‘legal scrubbing’, clarifying whether or not the Act applies to non-ECOWAS Member States investors and how the ECOWAS Court has jurisdiction in investor–State disputes. A more ambitious amendment, however, would be expressly to extend the Act’s ambit to cover all foreign investors, regardless of their nationality, in ECOWAS Member States. It might be objected that the Authority is not competent to extend the ambit of the Supplementary Act to cover non-ECOWAS Member States nationals. In addition, however, to ‘the promotion of joint ventures by private sector enterprises and other economic operators, in particular through the adoption of a regional agreement on cross-border investments’ (which might seem to be restricted to intra-ECOWAS investment), the objectives of the Community also include ‘the harmonisation of national investment codes leading to the adoption of a single Community investment code’ (which does not seem so limited). So it is clearly arguable that the Authority, in its role as representative of the Community, has such a power, should it choose to exercise it.
Were the Authority to do so, it would create an ECOWAS-wide minimum level of protection for all foreign investors in all ECOWAS Member States, so that there would be an, at least partial, harmonization of the investment standards applicable in the Member States. Investors from States that have operative BITs with the ECOWAS Member States in which they had made their investments would continue to have the option of relying on the protections—and utilizing the dispute settlement procedures—contained in that treaty. But the ECOWAS Member States concerned would also have the option of terminating their BITs, knowing that investors would continue to fall within the ambit of the Supplementary Act and be able to bring claims before the ECOWAS Court, in the same way that other investors would be protected in other Member States. In addition, the Supplementary Act not only grants protections to investors but requires certain standards of behaviour from them. Investors must conduct pre-establishment environmental and social impact assessments.147 They must refrain from corrupt practices, on pain of being barred from utilizing the Act’s investor–State dispute settlement procedures.148 They must uphold human rights and labour standards, and comply with accepted standards of corporate governance.149 Failure by investors to comply with their obligations under the Supplementary Act can give rise to mitigating or set-off effects or, indeed, to counterclaims by their host States.150 And, finally, the ECOWAS Court is just what it says: a court, with open proceedings, public judgments, a permanent salaried judiciary and (at least in theory) a jurisprudence constante.
B. Activation of the Court’s Arbitral Jurisdiction
As mentioned in the introduction, the ECOWAS Court itself seems keen that its arbitral jurisdiction be activated.151 And it is generally more difficult to enforce foreign court judgments than it is to enforce arbitral awards, as there is no multilateral treaty governing the enforcement of judgments to match the New York Convention.152 So constitution of the ECOWAS Court as an arbitral tribunal might render it a more attractive forum to foreign investors. However, the ECOWAS Revised Treaty requires the ‘status, composition, powers, procedure and other issues concerning the Arbitration Tribunal’153 to be set out in a ‘Protocol’, which term is defined as meaning ‘an instrument of implementation of the Treaty having the same legal force as the latter’.154 So a treaty would need to be adopted and ratified by all the ECOWAS Member States according to their constitutional requirements—a rather more lengthy business than adoption of a decision by the ECOWAS Council. In addition, one might wonder whether the ECOWAS Court can be an arbitral tribunal; at least in the investor–State context. On the one hand, it could be argued that its jurisdiction is consensual, as it would be activated only by agreement.155 If this were the case, then the ECOWAS Court would be an arbitral tribunal when acting under the jurisdiction conferred by the Supplementary Act, which is also described as ‘arbitration’.156 On the other hand, the fact that a national court has jurisdiction in a particular dispute conferred on it by the parties to that dispute (ie, through a choice-of-forum clause) is not generally thought to transform it into an arbitral tribunal. More is said to be required: the constitution of the tribunal by decision of the parties (or by the application of rules that the parties have agreed).157 One might consequently question whether the courts of non-ECOWAS States would be willing to recognise judgments of the ECOWAS Court as arbitral awards.158
C. Supervision of Enforcement of the Court’s Judgments
Instead, more consideration might be given to ensuring that Member States comply with judgments of the ECOWAS Court. The provisions on enforcement of the ECOWAS Court’s judgments in the Court’s Protocol were amended in 2005 and now provide expressly that ‘Judgments of the Court that have financial implications for nationals of Member States or Member States are binding’.159 But despite this, compliance by defendant States with the Court’s judgments is not guaranteed. Indeed, according to the Court’s own records, only 35 out of 64 judgments have been enforced by Member States.160 Execution of a decision of the Court is by a writ of execution submitted by the Court’s Registrar to the ‘competent national authority’ of the relevant Member State, who, having verified that the writ comes from the Court, is obliged to enforce it according to the Member State’s rules of civil procedure.161 Thus far, however, only four ECOWAS Member States have notified the Court of the identity of their competent national authorities,162 as they are obliged to do163—something that the Court sees as the principal barrier to enforcement of its judgments.164
Matters would seem to be further complicated by the ECWOAS Member States’ memberships of two different legal traditions—the civil and the common law—which each takes a different view as to the relationship between national law and international law.165 In the Mba case, when the applicant went to the High Court of Ghana seeking enforcement of the ECOWAS Court’s judgment awarding him US$800,000 damages,166 the High Court refused his application on the basis that neither the ECOWAS Treaty nor the Court’s Protocol had been incorporated into Ghanaian law through legislation.167 This followed an earlier judgment,168 in which the Supreme Court of Ghana held that it could not enforce an order of the International Tribunal of the Law of the Sea (ITLOS). Because Ghanaian law took a dualist approach to treaties, the absence of any legislation incorporating the Law of the Sea Convention into national law meant that orders of ITLOS were not binding on the Ghanaian courts even though Ghana, being a party to the Convention, was bound at the international level. Moreover, a Member State’s rules of civil procedure may prevent execution against the State itself. Indeed, this is an issue with which the Court has already been faced in the exercise of its human rights jurisdiction.169 And, of course, the Court’s Protocol says nothing about enforcement of the Court’s judgments outside ECOWAS.170
On the other hand, article 23 of the Court’s Protocol refers to the recognition of judgments of the Court and requires that ‘Member States and Institutions of the Community shall take immediately all necessary measures to ensure execution of the decisions of the Court’. This would seem to indicate that all ECOWAS Member States are obliged to facilitate the recognition and enforcement of the Court’s judgments, whether rendered against them or another Member State. Indeed, in Zimbabwe v Fick and Others the Constitutional Court of South African relied on a substantively identical provision of the Protocol establishing the South African Development Community (SADC) Tribunal171 to determine that South Africa had an obligation to enforce a decision of that Tribunal against Zimbabwe.172 Moreover, the Constitutional Court went further, holding that Zimbabwe’s agreement to be bound by the Tribunal Protocol constituted an express waiver of its State immunity from the jurisdiction of the South African courts to recognize and enforce decisions of the Tribunal made against it.173 And the Constitutional Court went on to hold that, to comply with South Africa’s obligations under the SADC Treaty and Protocol and its own constitutional requirements, the common law must develop to include the SADC Tribunal within the concept of a ‘foreign court’ for the purpose of enforcement of its decisions.174 Accordingly, the Constitutional Court upheld a decision of the Gauteng High Court to grant a writ of execution against properties owned by Zimbabwe in South African so as to enforce a costs order of the SADC Tribunal.175 Of course, the South African Constitutional Court’s decision in Fick is not directly assimilable to the ECOWAS context but it does strongly suggest that provisions of the Court’s Protocol could be used to justify the enforcement by Member States’ courts of judgments of the ECOWAS Court.
The ECOWAS Court, together with the Pan African Lawyers Union and the Raoul Wallenberg Institute, has launched a project to develop strategies for improving enforcement of the Court’s decisions.176 It might be thought that this is too important of an issue to leave to the Court itself. Were they wish to promote use of the Court, the ECOWAS Member States might, at the least, notify the Court of the identity of their competent national authorities for enforcement purposes and ensure that they have in place the necessary legislation to give judgments of the Court full force and effect in their national legal systems. Indeed, they might go further and establish a mechanism for the monitoring of Member States’ compliance with the Court’s judgments.177 As all Member States and Community institutions are already obliged to facilitate the enforcement of the Court’s decisions,178 this would not seem to require any treaty amendment, nor would it require coercive measures. The addition of an agenda item to the Authority’s periodic meetings or the establishment of a sub-committee to monitor compliance might suffice, given that it would oblige Member States publicly to justify their failures.
VII. FINAL REMARKS
The ECOWAS Court is undoubtedly the most successful of the African sub-regional courts. What this article, it is hoped, has shown that its jurisdiction is rather wider than generally thought and already serves to encompass a variety of disputes between foreign investors and their host ECOWAS Member States. This article has also suggested that there are good reasons why the Member States might wish to extend and standardize the Court’s jurisdiction over investor–State disputes, and shown that there are options available to them should they wish so to do. Whether the Member States will wish to do so is, of course, a matter for them, just as it is for investors to decide whether they might wish to bring claims before the Court under the present or any future dispensation. But, given the present widespread dissatisfaction with investor–State dispute settlement, the ECOWAS Court can provide an alternative to arbitration that is already up and running. And an initiative by ECOWAS would help to cement African States’ role as ‘investment rule-makers’ rather than ‘rule-takers’,179 as well furthering the organisation’s mission to promote economic integration within West Africa.
This article builds upon Matthew Happold and Relja Radović, ‘The ECOWAS Court of Justice as an Investment Tribunal’ (2018) 19 JWIT 55, albeit it comes to somewhat different conclusions. The usual disclaimer applies.
Out of 942 reported treaty-based ISDS cases as of 31 December 2018, 615 were commenced in the 10 previous years: United Nations Conference on Trade and development (UNCTAD) Investment Policy Hub <https://investmentpolicy.unctad.org...> accessed 27 August 2019. For the state of play, see Silvia Constain, ‘ISDS Growing Pains and Responsible Adulthood’ in Jean E Kalicki and Anna Joubin-Bret (eds), Reshaping the Investor–State Dispute Settlement System: Journeys for the 21st Century (Brill Nijhoff 2015); and Jonathan Bonnitcha, Lauge N Skovgaard Poulsen and Michael Waibel, The Political Economy of the Investment Treaty Regime (OUP 2017) 233–60.
Originally in relation largely to transparency and third-party participation: see the amendments to the International Centre for Settlement of Investment Disputes (ICSID) Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules) (April 2006); the United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency in Treaty-based Investor–State Arbitration (adopted 9 July 2013, entered into force 1 April 2014); and the United Nations Convention on Transparency in Treaty-based Investor–State Arbitration (adopted 10 December 2014). Discussions have since widened and are now centred in UNCITRAL, the Commission having in 2017 granted a mandate to its Working Group III to work on the possible reform of investor–State dispute settlement: ‘Report of the United Nations Commission on International Trade Law Fiftieth Session (3–21 July 2017)’, UN Doc A/72/17 (2017) para 264.
See Karsten Nowrot, ‘Termination and Renegotiation of International Investment Agreements’ in Steffen Hindelang and Markus Krajewski (eds), Shifting Paradigms in International Investment Law. More Balanced, Less Isolated, Increasingly Diversified (OUP 2016) 229–38; and Malcolm Langford, Daniel Behn and Ole K Fauchald, ‘Backlash and State Strategies in International Investment Law’ in Tanja Aalberts and Thomas Gammeltoft-Hansen (eds), The Changing Practices of International Law (CUP 2018).
European Commission–Canada Comprehensive Economic and Trade Agreement (final draft of 29 February 2016) (CETA) art 8.29. See Freya Baetens, ‘The European Union’s Proposed Investment Court System: Addressing Criticisms of Investor–State Arbitration While Raising New Challenges’ (2016) 43 Legal Issues of Economic Integration 367. In Opinion 1/17 of the Court (Full Court) of 30 April 2019, ECLI:EU:C:2019:341, the European Court of Justice (ECJ) held the ISDS provisions of CETA to be compatible with EU law.
EU–Singapore Investment Protection Agreement art 3.12; and EU–Vietnam Investment Protection Agreement art 3.41. The EU–Singapore Free Trade and Investment Protection Agreements were signed on 19 October 2018 and approved by the European Parliament on 13 February 2019. They will come into force once ratified by Singapore and the EU Member States: see <https://trade.ec.europa.eu/doclib/p...> accessed 28 August 2019. The EU–Vietnam Free Trade and Investment Protection Agreements were adopted by the European Commission on 17 October 2018 but require ratification by both parties before coming into force: see <http://trade.ec.europa.eu/doclib/pr...> accessed 20 October 2019.
See European Commission, ‘The Multilateral Investment Court Project’ <http://trade.ec.europa.eu/doclib/pr...> accessed 20 October 2019.
See, eg, Thomas Wälde, ‘The Specific Nature of Investment Arbitration’ in Académie de droit international de La Haye (ed), New Aspects of International Investment Law (Brill Nijhoff 2007) 55.
For a notorious example, see Loewen Group Inc and Raymond Loewen v United States, ICSID Case No ARB(AF)/98/3, Award (26 June 2003) para 54, in which the conduct of a Mississippi State court was described as ‘a miscarriage of justice amounting to a manifest injustice as that expression is understood in international law’. See also Stephan Wiske and Todd J Fox, ‘The So-called “Judicial Hellholes” in US Jurisdictions and Possible Means to Avoid Them’ (2008) 2 Dispute Resolution Intl 235.
Case C284/16 Slowakische Republik (Slovak Republic) v Achmea BV, judgment of the Court (Grand Chamber), 6 March 2018, ECLI:EU:C:2018:158.
See Case C–235/17 Commission v Hungary, judgment of the Court (Grand Chamber), 21 May 2019, ECLI:EU:C:2019:432.
For popular views on the adequacy of EU Member States’ justice systems, see European Commission, ‘The 2018 EU Justice Scoreboard’ (2019) <https://ec.europa.eu/info/sites/inf...> accessed 27 August 2019.
‘ECOWAS Court President Opens 2017–18 Legal Year’ (9 October 2017) (on file with author).
Karen Alter, James T Gathii and Laurence R Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’ (2016) 27 EJIL 293.
See Makane Moïse Mbengue and Stefanie Schacherer, ‘The “Africanization” of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Regime’ (2017) 18 JWIT 414.
See Treaty of the Economic Community of West African States (ECOWAS) (signed 28 May 1975, entered into force provisionally 28 May 1975, definitively 20 June 1975) 1010 UNTS 18. This has now been replaced by the Revised Treaty of the Economic Community of West African States (ECOWAS) (signed 24 July 1993, entered into force 23 August 1995) 2373 UNTS 233 (Revised Treaty), as amended by Supplementary Protocol A/SP.1/06/06 Amending the Revised ECOWAS Treaty (signed 14 June 2006, entered into force provisionally 14 June 2006).
Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
Samuel O Oloruntoba, ‘ECOWAS and Regional Integration in West Africa: From State to Emerging Private Authority’ (2016) 14 History Compass 295; and Sotonye Godwin-Hart, ‘Integrating Trade and Human Rights in West Africa: An Analysis of the ECOWAS Experience’ (2012) 32 Windsor Rev of Legal and Social Issues 57, 60–1 and 66–71.
Treaty of the Economic Community of West African States (n 17) art 2(1).
ibid art 2(2). The original Treaty envisaged, inter alia, the elimination of customs duties and trade restrictions among Member States; the establishment of a common customs tariff and a common commercial policy towards third States; enabling free movement of persons, services and capital between Member States; harmonization of agricultural, economic, industrial and monetary policies.
Revised Treaty (n 17).
For some challenges experienced by the Community, see Oloruntoba (n 19) 300–1, and, further, Klaas van Walraven, Containing Conflict in the Economic Community of West African States: Lessons from the Intervention in Liberia, 1990–1997 (Netherlands Institute of International Relations 1999).
Revised Treaty (n 17) art 3.
The objectives of the Community now include ‘the adoption of measures for the integration of the private sectors, particularly the creation of an enabling environment to promote small and medium scale enterprises’ (Revised Treaty (n 17) art 3(2)(g)).
Revised Treaty (n 17) art 3(2)(f) and (i). For an analysis of foreign investment flows in ECOWAS Member States in connection with their institutional structures, see Kazeem B Ajide and Ibrahim D Raheem, ‘Institutions–FDI Nexus in ECOWAS Countries’ (2016) 17 J of African Business 319.
Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for the Implementation with ECOWAS (signed 19 December 2008, entered into force 19 January 2009).
Revised Treaty (n 17) art 6(1)(a). The other principal institutions are the Council of Ministers, the Community Parliament, the Economic and Social Council, the Community Court of Justice, the ECOWAS Commission, the Fund for Co-operation, Compensation and Development, and Specialized Technical Commissions.
Community institutions act through the adoption of a variety of legal instruments: Supplementary Acts, Regulations, Directives, Decisions, Recommendations, and Opinions. Other acts of the Community legal regime are, however, less important in relation to the topic of this article.
Revised Treaty (n 17) art 9(3).
Supplementary Act (n 27) preamble (‘MINDFUL of Article 3 of the ECOWAS Treaty stipulating the areas in which the Community should focus its activities in order to achieve its aims and objectives’).
Supplementary Act (n 27) (‘RECOGNIZING that the development of a more vibrant and dynamic private sector helps to create job opportunities, promote technology transfer, support long term economic growth and contributes effectively to the fight against poverty; ANXIOUS to promote and consolidate within ECOWAS, an environment conducive to the development of the activities of the private sector and to make the latter a genuine engine of economic growth’).
Supplementary Act (n 27). The Preamble also noted ‘the need to establish within the ECOWAS region, reliable, transparent, stable and predictable conditions for investments’ and the desire to adopt common regional rules on investments.
On regional investment promotion and protection regimes in Africa, see Laura Páez, ‘Bilateral Investment Treaties and Regional Investment Regulation in Africa: Towards a Continental Investment Area?’ (2017) 18 JWIT 379; Erik Denters and Tarcisio Gazzini, ‘The Role of African Regional Organizations in the Promotion and Protection of Foreign Investment’ (2017) 18 JWIT 449; and Rukia Baruti, ‘Investment Facilitation in Regional Economic Integration in Africa: The Cases of COMESA, EAC and SADC’ (2017) 18 JWIT 493.
Protocol A/P.l/7/91 on the Community Court of Justice (signed 6 July 1991, entered into force provisionally 6 July 1991, definitively 5 November 1996); now amended by the Supplementary Protocol A/SP.1/01/05 Amending the Preamble and Articles 1, 2, 9 and 30 of Protocol A/P.l/7/91 relating to the Community Court of Justice and Article 4 Paragraph 1 of the English Version of the Said Protocol (signed 19 January 2005, entered into force provisionally 19 January 2005). Further references will be to the Protocol as amended (art 3(2)). The current judges are: Justice Edward Amoako Asante (Ghana) (President), Justice Gberi-Be Ouattara (Côte d’Ivoire) (Vice-President), Justice Dupe Atoki (Nigeria), Justice KeiKura Bangura (Sierra Leone) and Justice Januaria Tavares Silva Moreira Costa (Cape Verde).
By Protocol A/P.l/7/91 (n 35).
See Protocol as amended (n 35) art 10; and further Karen Alter, Laurence Helfer and Jacqueline R McAllister, ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 AJIL 737, 748–53.
Protocol (n 35) art 9(1) and (2).
ibid art 9(4).
ibid art 9(5). See also ECOWAS Revised Treaty (n 17) art 16.
Protocol (n 35) art 9(6).
ibid art 10(c). For an example of a corporation suing a Community institution, see Groupe Raceco c Commission de la CEDEAO, ECW/CCJ/JUG/08/12 (7 June 2012).
Protocol (n 35) art 10(d).
ibid art 10(a), (b) and (e). See also Adewale v ECOWAS Council of Ministers ECW/CCJ/APP/11/10 (16 May 2012) (albeit that in that case the Applicant herself acknowledged that as a candidate for employment she was unable to pursue a claim as an employee, and hence attempted to argue violation of a personal right, which claim also failed).
Protocol (n 35) art 10(f). Such requests can be made ex proprio motu or at the request of a party to the case, but ECOWAS Member States’ courts are not obliged to concede to them, unlike the situation under art 267 of the Treaty on the Functioning of the European Union, when, unless the acte clair doctrine applies, EU Member States’ courts or tribunals ‘against whose decisions there is no judicial remedy under national law’ are obliged to make a reference to the Court of Justice of the European Union when a question concerning the interpretation of the EU treaties or the validity and interpretation of an act of an EU institution comes before them.
And, indeed, acknowledged: see Piabié JB Bako, ‘L’influence de la jurisprudence de la CJUE sur l’interprétation juridictionnelle du droit communautaire ouest-africain (CEDEAO-UEMOA)’ (2016) Geneva Jean Monnet Working Paper 07/2016 <http://www.ceje.ch/files/4114/6218/...> accessed 29 August 2019.
African Charter on Human and Peoples’ Rights (signed 27 June 1981, entered into force 21 October 1986),
See Alter and others (n 37).
OAO Neftyanaya Kompaniya Yukos v Russia App no 14902/04 (ECtHR, 31 July 2014).
See, in particular, Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (signed 20 March 1952, entered into force 18 May 1954) 213 UNTS 262 art 1; and, for commentary, Marius Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection (OUP 2006).
See A Newspaper Publishing Company v Trinidad and Tobago Communication No 360/1989 (Human Rights Committee, 14 July 1989) UN Doc CCPR/C/36/D/360/1989; and I/A Court H.R., Entitlement of legal entities to hold rights under the inter-American human rights system (Interpretation and scope of Article 1(2), in relation to Articles 1(2), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46 and 62(3) of the American Convention on Human Rights, as well as of Article 8(1)(A) and (B) of the Protocol of San Salvador). Advisory Opinion OC-22/16 of February 26, 2016, Series A, No 22. There appears to be no decision of the African Commission on Human and Peoples’ Rights on the point. The African Charter on Human and Peoples’ Rights (n 47), however, consistently refers to the rights of ‘individuals’ and ‘peoples’. For a comparative analysis, see Matthew Happold, ‘Who Benefits from Human Rights?’ in Isabelle Riassetto, Luc Heuschling and Georges Ravarani (eds), Liber Amicorum Rusen Ergeç (Pasicrisie Luxembourgeoise 2017).
See, respectively, Common Article 1, International Covenant on Civil and Political Rights (signed 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; and International Covenant on Economic, Social and Cultural Rights (signed 16 December 1966, entered into force 3 January 1976) 993 UNTS 3; see also International Covenant on Civil and Political Rights art 27; and United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295 (13 September 2007).
For the obvious reason that, as Thurlow LC said, albeit extra-curially, ‘Corporations have neither bodies to be punished, nor souls to be condemned’: John Poynder, Literary Extracts from English and Other Works, vol 1 (John Hatchard & Son 1844) 268.
For a case-by-case analysis, see Winfried HAM van den Muijsenbergh and Sam Rezai, ‘Corporations and the European Convention on Human Rights’ (2012) 25 Global Business & Development LJ 43.
Investment treaties invariably expressly define corporations as nationals, or at least as parties capable of bringing a claim. See, eg, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (signed 18 March 1965, entered into force 14 October 1966) (ICSID Convention) 575 UNTS 159 art 25(2)(b); 2008 German Model Bilateral Investment Treaty art 1(3) <http://investmentpolicyhub.unctad.o...> accessed 23 August 2016 (defining companies as investors); 2008 UK Model BIT arts 1(c)-(d) and 8 <http://investmentpolicyhub.unctad.o...> accessed 3 October 2016 (defining separately ‘nationals’ and ‘companies,’ and then granting to both of them an access to international arbitration); Energy Charter Treaty (opened for signature 17 December 1994, entered into force 16 April 1998) 2080 UNTS 100 (ECT) art 1(7) (defining companies as investors); North American Free Trade Agreement (opened for signature 17 December 1992, entered into force 1 January 1994) (NAFTA) 32 ILM 289 art 1101(1) (simply referring to ‘investors of another Party’).
See text to Protocol (n 35).
See Starcrest Investment Ltd v ECOWAS Commission and others ECW/CCJ/JUD/06/11 (8 July 2011) paras 15–17; and Ocean King Nigeria Ltd v Senegal ECW/CCJ/JUD/07/11 (8 July 2011) paras 46–50.
The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector (CNDD) v Côte d’Ivoire ECW/CCJ/JUD/05/09 (17 December 2009) paras 20–30; and SYNECOCI et autres c. Côte d’Ivoire ECW/CCJ/JUD/07/18 (19 February 2018), pp 5–6.
The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector (CNDD) v Côte d’Ivoire (n 58) para 23.
SYNECOCI et autres c. Côte d’Ivoire (n 58).
FIDC v Liberia ECW/CCJ/JUD/23/18 (4 July 2018).
Despite, it might be noted, the English-language version of art 7 of the African Charter, which expressly states that the right to a fair hearing is possessed by ‘[e]very individual’.
FIDC v Liberia (n 64) 12.
Dexter Oil Ltd v Liberia ECW/CCJ/JUD/03/19 (6 February 2019).
ibid para 56.
ibid para 68.
ibid para 74.
Ocean King Nigeria Ltd v Senegal (n 57) n 59.
ibid paras 49–50.
ibid para 51.
See Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 57 BYBIL 195.
When entering into the merits of the dispute, the Court concentrated on the question whether (as alleged) the applicant had been properly informed of the proceedings. Finding that it had, the Court dismissed the claim.
The Court in Dexter Oil Ltd v Liberia (n 67) made specific reference, in this context, to the judgment of the European Court of Human Rights in Gorraiz Lizarraga and others v Spain, App no 62543/00, judgment of 27 April 2004: see Deter Oil Ltd v Liberia (n 67) para 74.
Strictly speaking, the issue did not arise as the applicant was a Liberian corporation and therefore a national of an ECOWAS Member State.
See text to n 67.
Dexter Oil Ltd v Liberia (n 67) para 72.
See Islamic Republic of Iran Shipping Lines v Turkey App no 40998/98 (ECtHR, 13 December 2007); and Council v Bank Mellat, Case 176713 P, judgment of the European Court of Justice (5th Chamber) of 18 February 2015, ECLI:EU:C:2016:96.
Other rights, not mentioned by the Court, but which corporations have elsewhere been said to enjoy, are the rights to privacy and reputation. The European Court of Human Rights has held that corporations’ business premises and their correspondence fall within the ambit of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 8, and that corporations enjoy a right to reputation under the same provision: see Axel Springer AG v Germany, App no 39954/04, judgment (merits and just satisfaction) of Grand Chamber, 7 February 2012; Wieser and Bicos Beteiligungen GmbH v Austria, App no 74336/01, judgment (merits and just satisfaction), 16 October 2007, ECHR 2007IV; and Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v Germany, App no 32783/08, decision (admissibility) of 2 September 2014
Taakor Tropical Hardwood Co Ltd v Sierra Leone ECW/CCJ/JUD/02/19 (24 January 2019).
ibid 16–17. Indeed, the Court specifically relied on Ocean King Nigeria Ltd v Senegal (n 57) in coming to its conclusion, and restricted that decision to complaints of the denial of a right to a fair hearing ‘under the exception created by this Court within its inherent jurisdiction’ (at 17).
The other members of the Court did differ, being Justices Ouattara and Moreira Costa in Taakor Tropical Hardwood Co Ltd v Sierra Leone (n 82), and Justices Atoki and Bangura in Dexter Oil Ltd v Liberia (n 67).
See ICSID Convention (n 55) art 26.
See ECHR (n 81), as amended by Protocol No 11 (signed 11 May 1994, entered into force 1 November 1998) art 35(1), Optional Protocol to the International Covenant on Civil and Political Rights art 2; African Charter of Human and Peoples’ Rights (n 47) art 50.
See Essien v The Gambia ECW/CCJ/APP/05/05 (29 October 2007) paras 20–8; and Koraou v Niger ECW/CCJ/JUD/06/08 (27 October 2008) paras 36–53.
See ECHR (n 81) art 35 (requiring applications to the European Court of Human Rights to be made within six months from exhaustion of domestic remedies), and American Convention on Human Rights art 46 (also imposing a six-month time limit).
Federation of African Journalists and others v The Gambia, ECW/CCJ/JUD/04/18 (13 February 2018) 20–2.
See text to n 49.
See Chude Mba v Ghana and others ECW/CCJ/JUD/30/18 (11 December 2018) 3. Judgment in the original claim was entered in default.
See text to n 35.
See David v Uweche ECW/CCJ/RUL/07/10 (11 June 2010) para 48; SERAP v Nigeria ECW/CCJ/JUD/10/12 (10 December 2010) paras 64–74; and Molmon et 114 autres c Guinée ECW/CCJ/JUD/16/16 (17 May 2016) paras 6–7.
SERAP v Nigeria (n 94).
On the ground that it was bringing the claim not on its behalf but on behalf of the inhabitants of the region: ibid paras 55–61.
Contrast Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v Argentina, ICSID Case No ARB/07/26, Award (8 December 2016) paras 1143–55.
See text to note 13.
Petrostar (Nigeria) Ltd v Blackberry Nigeria Ltd ECW/CCJ/JUD/05/11 (18 March 2011). See also Ocean King Nigeria Ltd v Senegal (n 57) para 46.
The Court heard four witnesses for the Applicant. The Defendant did not call any witnesses, nor did it take the opportunity to cross-examine those of the Applicant: Petrostar (Nigeria) Ltd v Blackberry Nigeria Ltd (n 99) paras 13–29.
ibid paras 31–6.
Article 20(1) of the Court’s Protocol (n 35) provides that the Court shall ‘apply, as necessary, the body of laws as contained in Article 38 of the Statutes [sic] of the International Court of Justice’. See David v Uweche (n 94) para 41 (referring to ‘the basic principles as well as the practice that guide the adjudication of the disputes on human rights at the international level’); Koraou v Niger (n 88) paras 74–5 and 77 (referring to various treaties, as well as International Criminal Tribunal for the Former Yugoslavia (ICTY) case law, regarding the definition of slavery); and Sikiru Alade v Nigeria ECW/CCJ/APP/05/11 (11 June 2012) paras 24–5 (explaining that breaches of any international treaty of human rights protection, which is acceded to by Member States, could fall under jurisdiction of the Court).
See Patrick Wautelet, ‘International Public Contracts: Applicable Law and Dispute Resolution’ in Mathias Audit and Stephan W Schill (eds), Transnational Law of Public Contracts (Bruylant 2016).
See Compañiá de Aguas del Aconquija SA and Vivendi Universal SA v Argentina, ICSID Case No ARB/97/3, Decision on Annulment (3 July 2002) paras 95–103. The ECOWAS Court has itself distinguished contract and treaty claims in the human rights context: see La Société du pont de Kayes c Mali ECW/CCJ/APP/35/15 (17 May 2016) 4–5.
For details of West African States’ BITs, see UN Economic Commission for Africa, Investment Policies and Bilateral Investment Treaties in Africa: Implications for Regional Integration (2016).
Supplementary Act on Investments (n 27).
See ibid arts 5–10, which include, inter alia, national treatment; most-favoured-nation treatment; a minimum standard of treatment based on customary international law and including fair and equitable treatment and full protection and security; protection against expropriation; and the free transfer of assets.
According to the UN Economic Commission for Africa (n 105) Annex 1, only eight of the 15 ECOWAS Member States have BITs with other Member States: Benin (with Burkina Faso, Ghana, Guinea and Mali); Burkina Faso (with Benin, Ghana and Guinea); Côte d’Ivoire (with Ghana); The Gambia (with Guinea and Mali); Ghana (with Benin, Burkina Faso, Côte d’Ivoire and Guinea); Guinea (with Benin, Burkina Faso, The Gambia, Ghana and Mali); Mali (with Benin, The Gambia, Ghana, and Senegal); and Senegal (with Mali). This amounts to 11 BITs out of a potential total of 105. Notably, Nigeria, by far the biggest economy in the region, has none.
See Supplementary Act on Investments (n 27) arts 11–17. Article 13, on corrupt practices, is the most significant, as art 18 provides that if a Host State’s national court finds that an investor has breached art 13, that investor is prohibited from initiating any dispute settlement procedure under the Act. Moreover, this can also be raised as an objection to jurisdiction. It has been argued that the Act ‘is a paradigmatic attempt to redress the unbalanced character of investment treaties’: Denters and Gazzini (n 34) 479–80.
See text to n 27.
Supplementary Act on Investments (n 27) art 4(1).
ibid art 1(c).
ibid art 1(d). See also ECOWAS Energy Protocol A/P4/1/03 (signed 31 January 2003, entered into force provisionally 31 January 2003) art 1(14) (including also natural persons residents or establishing an office in a Contracting Party).
ibid art 1(a).
Unqualified are also the provisions on senior management and boards of directors and on the transfer of assets, although the former, in particular, might be thought less likely to give rise to litigation. See Supplementary Act on Investments (n 27) arts 9 and 10; Energy Protocol (n 113) art 13(1) (‘Investments of Investors in the Area of any Contracting Party’); German Model BIT (n 55) art 4(2) (‘Investments by investors of either Contracting State’); UK Model BIT (n 55) art 5(1) (‘Investments of nationals or companies of either Contracting Party’); Energy Charter Treaty (n 55) art 13(1) (‘Investments of Investors of a Contracting Party in the Area of any other Contracting Party’); NAFTA (n 55) art 1110(1) (‘an investment of an investor of another Party’).
Besides art 8(1) of the Supplementary Act on Investments which prohibits expropriation, art 8(2)–(5) requires that compensation be prompt, adequate and effective. Article 8(6) excludes complaints concerning the granting of compulsory licences in relation to intellectual property rights from the scope of the article. How the ECOWAS Court might apply the provision cannot presently accurately be predicted. However, in the exercise of its human rights jurisdiction, the Court has already held that a breach of contract does not constitute a breach of a person’s economic rights: see La Société du pont de Kayes (n 104) 4–5.
Supplementary Act on Investments (n 27) art 33(1).
See Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 332 art 36. As for the rights of individuals conferred by States by virtue of treaties, the most obvious example is human rights, possession of which is independent of nationality.
ECHR (n 81), as amended by Protocol No 11 (signed 11 May 1994, entered into force 1 November 1998) art 34 (‘The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’).
Islamic Republic of Iran Shipping Lines v Turkey App no 40998/98 (ECtHR, 13 December 2007) paras 78–81.
ibid paras 80–1.
See David D Caron, ‘The Interpretation of National Foreign Investment Laws as Unilateral Acts under International Law’ in Mahnoush H Arsanjani and others (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff 2011).
See the view taken by the Tribunal in Generation Ukraine Inc v Ukraine, ICSID Case No ARB/00/9, Award (16 September 2003) para 11.3.
Supplementary Act on Investments (n 27) art 33(6).
ibid art 33(7).
See, famously, Jan Paulsson, ‘Arbitration Without Privity’ (1995) 10 ICSID Rev—FILJ 232. This technique could also be used to bring the disputes under the ECOWAS Energy Protocol under the jurisdiction of the Court of Justice. That Protocol envisages ICSID, ICSID Additional Facility, Stockholm Chamber of Commerce (SCC), Organization for the Harmonization of Business Law in Africa (OHADA) or ad hoc UNCITRAL arbitration for the resolution of disputes arising under its Chapter III between investors and Contracting Parties, but it also provides that investors can submit disputes for resolution ‘in accordance with any applicable, previously agreed dispute settlement procedure’: Energy Protocol (n 113) art 26(2)(b). Force is added to this argument by the fact that art 33 of the Supplementary Act on Investments refers simply to ‘a dispute’.
Text to n 35.
Text to n 27.
Revised Treaty as amended by Supplementary Protocol A/SP.1/06/06 (n 17) art 9(3).
ibid art 6(1).
Investors might wish to bear in mind, however, that a tribunal in a dispute settlement proceeding under the Supplementary Act has the power to determine whether the investor has breached its obligations under the Act. Such an allegation, made by a host State, can serve either as mitigation or set-off to the investor’s claim, or as a counter-claim: Supplementary Act on Investments (n 27) art 18(2)–(5).
Energy Protocol (n 113) art 17.
Supplementary Act on Investments (n 27) art 1(a).
See text to n 35.
Alter and others (n 15).
Manneh v The Gambia ECW/CCJ/JUD/03/08 (5 June 2008); and Saidykhan v The Gambia ECW/CCJ/RUL/05/09 (30 June 2009).
See Alter and others (n 15) 297–8.
ECOWAS, ‘Memorandum on the ECOWAS Institutional Reform Project: The Ad Hoc Ministerial Committee on Institutional Reform’, ECW/AHMCIRI/II/2, 2017.
See ECOWAS Court Blog, ‘ECOWAS Commission President Assures New Judges of Support Towards the Realization of their Mandate’ 1 March 2019 <http://prod.courtecowas.org/2019/03...> accessed 20 October 2019, reporting the swearing-in of the five new judges on 31 July 2018 at the 53rd Summit of ECOWAS Heads of State and Government.
For criticisms, see TransAfrica Foundation, ‘Advocacy Brief: Rethinking the Proposed Restructuring of the ECOWAS Community Court of Justice’ December 2017 <http://trustafrica.org/en/publicati...> accessed 20 October 2019.
See ‘ECOWAS Court President Opens 2017–18 Legal Year’ (n 13); Adedayo Akinwale, ‘ECOWAS Court Vows to Oppose Reduction in the Number of Judges’ This Day 10 July 2018 <https://www.thisdaylive.com/index.p...> accessed 20 October 2019; and ECOWAS Court Blog, ‘President Calls for Reinstatement of Initial Tenure of Judges of the ECOWAS Court of Justice’ 21 March 2019 <http://prod.courtecowas.org/2019/03...> accessed 20 October 2019.
See ECOWAS Court Blog, ‘Sierra Leone Expresses Eupport for the Restoration of the Number of Judges of the ECOWAS Court’ 13 March 2019 <http://prod.courtecowas.org/2019/03...> accessed 20 October 2019.
Mbengue and Schacheuer (n 16) 414.
See Tarcisio Gazzini, ‘Nigeria and Morocco Move Towards a “New Generation” of Bilateral Investment Treaties’ 8 May 2017 <https://www.ejiltalk.org/nigeria-an...> accessed 20 October 2019.
Revised Treaty (n 17) art 9(2) and (3).
ibid art 9(4)–(6).
Supplementary Act (n 27) art 12.
ibid arts 13 and 18(1).
ibid arts 14, 15 and 16.
ibid art 18.
See text to n 17.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) 33 UNTS 3. The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, adopted on 2 July 2019, has not yet come into force and at present has only one signatory and no ratifications: see <https://www.hcch.net/en/instruments...> accessed 29 August 2019.
ECOWAS Revised Treaty (n 17) art 16(2)
ibid art 1.
See text to n 17.
See text to n 27.
See, eg, Castro v Tri Marine Fish Co. LLC and others, judgment of US Court of Appeals for the 9th Circuit, 27 February 2019, No 17-35703, D.C. No. 2:17-cv-00008-RSL, in which, in determining what ‘arbitral award’ and ‘arbitration’ might mean for the purposes of the New York Convention, the Court looked to the American Law Institute’s Restatement (Third) US Law of International Commercial Arbitration, § 1-1, (Tentative Draft No 2, 2012), which defines an ‘arbitral tribunal’ as ‘a body consisting of one or more persons designated directly or indirectly by the parties to an arbitration agreement and empowered by them to adjudicate a dispute that has arisen between or among them’, and ‘arbitration’ as ‘a dispute resolution method in which the disputing parties empower an arbitral tribunal to decide a dispute in a final and binding manner’.
The same issue, of course, arises as regards third parties and the EU’s Investment Court System (and its proposed Multilateral Investment Court).
Protocol (n 35) art 24(1). See also Revised Treaty (n 17) art 15(4), which provides that ‘Judgments of the Court of Justice shall be binding on the Member States …’.
ECOWAS Court, ‘Court Working with Stakeholders to Improve Enforcement of its Decisions’ <http://www.courtecowas.org/site2012...> accessed 9 September 2019.
Protocol (n 35) art 24(2) and (3). Writs of execution may be suspended only by decision of the ECOWAS Court itself: ibid art 24(5).
These being Burkina Faso (Ministry of Justice), Guinea (Chief Registrar of the Supreme Court), Mali (Ministry of Foreign Affairs) and Nigeria (Ministry of Justice). Source: the Registry of the ECOWAS Court of Justice, November 2016.
Protocol (n 35) art 24(4). Previously, it has been reported that Guinea, Niger and Nigeria have done so. See The Community Court of Justice, ECOWAS, ‘The Republic of Nigeria Designates the Competent National Authority Responsible for Implementing Decisions of the Court’ <http://www.courtecowas.org/site2012...> accessed 9 September 2019.
See n 141 above.
See Antonio Cassese, International Law (2nd edn, OUP 2005) 213–40; and Dinah Shelton (ed), International Law and Domestic Legal Systems (OUP 2011).
See text to n 92.
In the Matter of an Application to Enforce the Judgment in the Community Court of Justice of the ECOWAS against the Republic of Ghana and In the Matter of Chude Mba v The Republic of Ghana, Suit No J5/10/2013/Supreme Court, Ghana, 2016) (unreported) discussed in Richard Frimpong Oppong, ‘The High Court of Ghana Declines to Enforce an ECOWAS Judgment’ (2017) 25 African J of Intl and Comparative L 127, 128–9.
Republic v High Court (Commercial Division) Accra, ex parte Attorney General, NML Capital and the Republic of Argentina, Civil Motion JS/10/2013 (Supreme Court, Ghana, 2013), discussed in Richard Frimpong Oppong and Lisa C Niro, ‘Enforcing Judgments of International Courts in National Courts’ (2014) 5 J of Intl Dispute Settlement 344.
See Yovo et 31 autres c Togo ECW/CCJ/JUG/04/12 (31 January 2012), in which the Plaintiffs complained that they were unable to execute a judgment obtained against Togo Telecom, because, as an organ of the Togolese State, it benefited from immunity from execution under Togolese law.
On which, see Frimpong Oppong and Niro (n 168).
The relevant provision, art 32(2) of the Tribunal Protocol provided that ‘States and institutions of the Community shall take forthwith all measures necessary to ensure execution of decisions of the tribunal’.
Protocol establishing the South African Development Community (SADC) Tribunal; Government of the Republic of Zimbabwe v Fick and Others (CCT 101/12)  ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC) (27 June 2013) .
See ECOWAS Court (n 160).
An analogy could be drawn with the role of the Committee of Ministers of the Council of Europe in supervising the execution of judgments of the European Court of Human Rights, albeit that the Committee’s mandate derives from the ECHR (n 81) art 46.
ECOWAS Court (n 160).
See Mbengue and Schacherer (n 16) 446.