ICSID Review, Vol. 34, No. 2 (2019), pp.

455–481
doi:10.1093/icsidreview/siz029 Published Advance Access December 18, 2019

SPECIAL FOCUS ISSUE

Africa’s Voice in the Formation,

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Shaping and Redesign of International
Investment Law
Makane Moı̈se Mbengue1

Abstract—Africa has often been presented as an ‘investment rules taker’, despite its
longstanding contribution to the formation and shaping of the international investment
regime. The present contribution seeks to analyze why Africa has been perceived as
such and attempts to shed light on the active role that African countries have played
since their independence in the development of the investment regime and also in the
promotion of the ICSID system. The contribution also explores new avenues that are
provided through the ‘Africanization’ of international investment law and their impact
on the current redesign of the investment regime. It finally suggests options regarding
the current negotiations of an Investment Protocol at the level of the African Union
and ways to reinforce synergies between ICSID and the African Union.

I. INTRODUCTION
Investment law is currently in a state of flux throughout Africa. A multi-layered
system of initiatives is bourgeoning on the continent to revamp the architecture of
the international investment law field according to African States’ policy and
development priorities. At the same time, the continent has not always been
recognized as an ‘investment law maker’. In fact, over the last 60 years of
international investment law practice, African countries were perceived to be at the
margins of the field.
As the process of transformation of international investment law is currently at
its peak on the continent, it has seemed opportune to shed light on African States’
past and present contribution to the formation, shaping and redesign of the field’s
architecture.
With this objective in mind, the article is divided into two main sections.
Section II seeks to assess critically the allegation pursuant to which Africa has
1
Professor of International Law at the Faculty of Law of the University of Geneva and Affiliate Professor at
Sciences Po Paris (School of Law). The views expressed in this article reflect the personal views of the author and not
necessarily those of the African Union and other regional economic communities and governments for which the
author acts as expert and consultant in investment negotiations. The author would like to express his deep gratitude to
Ms Claire Duval (Sciences Po Paris (School of Law)) for her invaluable assistance in the preparation and drafting of
this contribution.

ß The Author(s) 2019. Published by Oxford University Press on behalf of ICSID. All rights reserved.
For permissions, please email: [email protected]
456 ICSID Review VOL. 34

historically occupied a peripheral role in the development of international

investment law. Recounting the continent’s past involvement in the formation
and shaping of the international investment law field, it will be shown that African
countries’ passive role in the conclusion of the majority of their BITs with capital-
exporting countries from the developed world should not cast a shadow on their
significant contribution to the substantive development of international investment

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law. African States have actively participated in rule making on investment
protection through their partaking in the creation of the International Centre for
Settlement of Investment Disputes (ICSID) system as well as through their
involvement in ICSID proceedings. Today, the ‘legitimacy crisis’2 of international
investment law serves as a springboard for the continent’s more recent and active
involvement in shaping the field’s contours. As the international investment law
regime is under scrutiny, African States are actively reclaiming the narrative of its
revision and development according to their policy and development priorities.
Accordingly, Section III provides an overview of the continent’s current prise en
main to ‘Africanize’ the international investment rules and the investor–State
dispute settlement (ISDS) system.

II. AFRICA AS A ‘RULE TAKER’? AFRICA’S PAST

INVOLVEMENT IN THE FORMATION AND
SHAPING OF INTERNATIONAL INVESTMENT LAW
Over the last 60 years of international investment law practice, Africa’s voice has
been dismissed as inaudible. Historically, African countries have been perceived as
mere ‘rule takers’ in the development of investment regulation. Whether this
statement accurately depicts the reality of the continent’s involvement with the
international investment field is worth critically assessing. To what extent can it be
asserted that African countries have remained absent from the formation and
shaping of international investment law? It is a fact that newly independent African
States signed international investment agreements (IIAs), which followed the pre-
drafted models of their capital-exporting partners from the developed world, in
order to attract more foreign direct investment (FDI) (Subsection A). However,
African States’ passive role in the conclusion of such instruments should not
overshadow their active contribution to the substantive development of interna-
tional investment law through their partaking in the creation of the ICSID system
(Subsection B) and their involvement in ICSID proceedings (Subsection C).

A. Landscape of Africa’s Historical Relationship with IIAs

Africa has had a long-standing relationship with investment protection and the
investor–State dispute resolution system. Its exposure to the investment law regime
started in the mid-1960s when most of the continent acceded to independence. At
that time, newly independent African States consented to be bound by a set of
international rules for the treatment of foreign investments, enforceable through
2
Charles N Brower and Stephan W Schill, ‘Is Arbitration a Threat or a Boon to the Legitimacy of International
Investment Law?’ (2009) 9 Chicago J Intl Law 473.
SPRING 2019 Africa’s Voice in International Investment Law 457

investment arbitration, as part of a broader necessity to stimulate the injection of

foreign capital into their national economies.
To express their consent to the rule-based international investment regime,
African countries became party to a myriad of IIAs and bilateral investment
treaties (BITs), the majority of which were concluded between the mid-1990s and
the early 2000s. By July 2019, 897 out of the 2,971 BITs signed worldwide

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involved African States and 162 were intra-African BITs.3 Of the 735 agreements
concluded with non-African countries, the majority were concluded with capital-
exporting countries from the developed world.4 These capital-exporting countries
were also the first to start bilateral relations with African countries in order to
establish international rules on investment protection. The first BIT signed was
the France–Chad BIT in 1960, followed by the Germany–Togo BIT of 1961 and
the Niger–Switzerland BIT of 1962.5 Egypt is the country that has concluded the
most BITs with European countries, followed by Morocco, Tunisia, Algeria and
Mauritius.6
While African countries took part in the process of concluding these
instruments, it is undeniable that they have done so in a rather passive capacity.
In fact, the early initiative of the conclusions of BITs between African and capital-
exporting countries from the developed world was mainly driven by colonial
linkages and heritage.7 As a result, the majority of these BITs followed the pre-
drafted models of their contracting partners.
Noteworthy in this respect is the wider historical context within which the
signing of such agreements took place. In parallel to subscribing to a dominant
model of BITs dictated by capital-exporting countries from the developed world,
African countries were simultaneously contesting the investment regime as part of
their fight for a new international economic order (NIEO). The United Nations
General Assembly adopted two resolutions that constitute the pillars of this fight
and exemplify this contestation. Resolution 1803 (XVII), entitled ‘Permanent
Sovereignty over Natural Resources’, adopted on 14 December 1962,8 underlined
the need for States and international organizations to ‘strictly and conscientiously
respect the sovereignty of peoples and nations’ over the use, management, and
disposal of their natural resources. On the other hand, Resolution 3281 (XXIX),
entitled ‘Charter of Economic Rights and Duties of States’, adopted on 12
December 1974,9 stressed each State’s right to regulate and oversee the activities
of transnational corporations within its national jurisdiction as well as to ‘take
measures to ensure that such activities comply with its laws, rules and regulations
and conform with its economic policies’ in its chapter II, article 2.2.b. It also
3
United NationsConference on Trade and Development (UNCTAD), ‘International Investment Agreement
Database’ <http://investmentpolicyhub.unctad.org/IIA> accessed 12 July 2019.
4
Alfredo Crosato and others, ‘Africa’s Investment Regime: Assessing International Investment Agreements in the
Light of Current Trends and Needs in Africa’ (The Graduate Institute: Trade and Investment Law Clinic Papers
2016) 26.
5
UNCTAD, ‘International Investment Agreement Database’ (n 3).
6
n 4.
7
Laura Páez, ‘Bilateral Investment Treaties and Regional Investment Regulation in Africa: Towards a Continental
Investment Area?’ (2017) 18 JWIT 381–2.
8
United Nations General Assembly (UNGA), Resolution 1803 (XVII) of 14 December 1962 (Permanent
Sovereignty over Natural Resources) <https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/1803%28XVII%29>
accessed 12 July 2019.
9
United Nations General Assembly (UNGA), Resolution 3037 (XXVII) of 19 December 1972 (Charter of the
economic rights and duties of states) <https://www.un.org/ga/search/view_doc.asp?symbol=a/res/3281(XXIX)>
accessed 12 July 2019.
458 ICSID Review VOL. 34

emphasized the fact that relations among States shall be governed, inter alia, by the
respect for human rights and fundamental freedoms in its chapter I(k).
One can only note African States’ failure to realize the NIEO’s ambitions in
practice when analyzing the provisions of the pre-drafted BIT models that these
countries adopted. Such models anticipated no obligations upon foreign investors
nor did they integrate any human rights dimension to the investment process.

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Rather, at that time, the function of these BITs was to protect the vested interests
of capital-exporting countries already present on the continent, particularly in
sectors such as the minerals and natural resource extraction industries.10 While the
scope of the instruments varies significantly, the series of substantive protection
guarantees contained therein entail obligations imposed on host States, including,
traditionally, national treatment; most-favoured nation (MFN) treatment; fair and
equitable treatment (FET); full protection and security; the prohibition of
‘arbitrary’, ‘unreasonable’, or ‘discriminatory’ impairment of the foreign invest-
ment; and the duty to pay compensation in the event that the foreign investment
is, directly or indirectly, expropriated. Moreover, clauses dealing with transfer of
funds and entry of personnel can commonly be found in these BITs. Altogether,
these instruments were not tailored to meet African States’ own circumstances and
developmental needs. Furthermore, they merely served as conduits for the
increase of investment flows in Africa.

B. Africa’s Participation in the Creation and Development of the ICSID System

It would be easy to infer from the above analysis that Africa’s role in the formation
and shaping of international investment law has been nothing short of passive. Yet,
doing so would provide only a partial account of the continent’s involvement in
the field.
African States’ participation in the rule making on investment protection can be
traced all the way back to their ratification of the ICSID Convention,11 in whose
negotiations, drafting and entry into force they actively contributed. This
contribution has elsewhere been argued to be all the more noteworthy given the
ICSID system’s innovative features at the time that it was envisioned.12 It is a fact
that African countries were actively involved in the discussions preceding the
adoption of the ICSID Convention’s final draft. As Aron Broches, the general
counsel of the World Bank, later commented, these discussions were initiated
partly because certain African States had sought the assistance of the World Bank
in helping governments and foreign investors to settle investment disputes.13
Of particular note is the fact that the first of the four regional consultative
meetings convened to discuss the Preliminary Draft Convention (Preliminary
Draft) was held at the headquarters of the United Nations Economic Commission
10
n 7.
11
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for
signature 18 March 1965, entered into force 14 October 1966) (ICSID Convention).
12
Paul-Jean Le Cannu, ‘Foundations and Innovation: The Participation of African States in the ICSID Dispute
Resolution System’ (2018) 33 ICSID Rev—FILJ 458:‘Possessing such characteristics (neutrality, balance, autonomy
and an efficient enforcement mechanism), the ICSID dispute resolution system was to mark a major step toward
promoting an atmosphere of mutual confidence and thus stimulating a larger flow of private international capital into
those countries which wish to attract it.’
13
ICSID, ‘History of the ICSID Convention: Documents Concerning the Origin and the Formulation of the
Convention - Vol. II-1’ (1968) 240 <https://icsid.worldbank.org/en/Documents/resources/History%20of%20ICSID%
20Convention%20-%20VOLUME%20II-1.pdf> accessed 12 July 2019.
SPRING 2019 Africa’s Voice in International Investment Law 459

for Africa in Addis Ababa, Ethiopia. Out of these four meetings, it is also the one
that attracted the most participants. Altogether, 29 African countries out of 32
invited attended the meeting, with 52 African delegates present at the discussion
table.14 The consensus among African States as regards the ICSID Convention’s
objectives was reported by Mr Broches in his statement regarding the African
meeting held in Addis Ababa, dated 7 January 1964.15 As transpires from his

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statement, African countries’ aspiration was for the jurisdiction of ICSID not to be
limited to disputes between investors and host States but to also include those
arising between investors and State-controlled corporations and develop-
ment boards. Certain African delegates additionally pushed for a suitable
definition of ‘investment’ to be devised so as to further clarify ICSID’s
jurisdiction.16 Taslim Olawale Elias, who participated in the negotiation process
as Nigeria’s Attorney-General and who later became the President of the
International Court of Justice, commended the Preliminary Draft as ‘an attempt
not only to restore the confidence of the investor but also to codify certain
principles of customary law and to engage in the progressive development of
international law’.17 Following the four regional consultative meetings, African
States continued to participate in the shaping of the ICSID system by designating
15 of the 61 members of the Legal Committee that was ultimately responsible for
assisting the Executive Directors with the drafting of the ICSID Convention’s final
version.18
African countries also played a central role in the speedy entry into force of the
ICSID Convention. Of the first 20 ratifications needed for the Convention to
enter into force, 15 came from African States. These were: Benin, Burkina Faso,
Central African Republic, Chad, Côte d’Ivoire, Gabon, Ghana, Madagascar,
Malawi, Mauritania, Nigeria, Republic of Congo, Sierra Leone, Tunisia and
Uganda. (The remaining five came from Iceland, Jamaica, Malaysia,
the Netherlands and the United States.)19 On 5 May 1965, Tunisia became the
first country to sign the Convention, and on 23 August 1965 Nigeria became the
first to ratify it. By 1970, the number of African State parties to the Convention
had doubled to 29.20
Beyond the large number of African delegations that were involved in the
negotiations, drafting and entry into force of the ICSID Convention, it is also
noteworthy that two Africans who were both Egyptians played an important role in
the early history of the ICSID system.21 One was Ahmed El Kosheri, who served
as president in the first case to be brought to ICSID under an investment treaty22
and sat on the first ad hoc committee to annul an ICSID award.23 He was also
involved in some of the most cited ICSID cases, either as a member of the
14
ibid 236–8.
15
ibid 296–7.
16
ibid.
17
ibid 244.
18
Le Cannu (n 12) 462.
19
ICSID, ‘List of Member States–ICSID/3’ <https://icsid.worldbank.org/en/Pages/icsiddocs/List-of-Member-
States.aspx> accessed 12 July 2019.
20
ibid.
21
See Judge Charles N Brower and Michael P Daly, ‘A Study of Foreign Investment Law in Africa: Opportunity
Awaits’ (ICCA 2016) 21 <https://www.arbitration-icca.org/media/7/82088225980224/brower__daly_a_study_of_for-
eign_investment_law_in_africa.pdf> accessed 12 July 2019.
22
Asian Agricultural Products v Sri Lanka, ICSID Case No ARB/87/3, Final Award (27 June 1990).
23
Klöckner v Republic of Cameroon, ICSID Case No ARB/81/2, Annulment Decision (21 October 1983).
460 ICSID Review VOL. 34

tribunal,24 as counsel25, as President of the tribunal26 or as President of the

second ad hoc committee.27 Another prominent African figure was Ibrahim
Shihata, who served as Senior Vice President and General Counsel of the World
Bank and as Secretary-General of ICSID in a pivotal period for the expansion of
the ICSID system between 1983 and 1998.
Over the course of history, the African continent has embraced the

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ICSID Convention beyond its ratification.28 Not only have several African
countries consented to submit disputes to ICSID in their investment contracts,29
many have also included provisions relating to ICSID in their national investment
laws. This is the case, for instance, for Burkina Faso, Burundi, the Central African
Republic, Côte d’Ivoire, Gambia, Guinea, Madagascar, Mauritania, Mozambique,
South Sudan, Sudan, Tanzania, Togo and Uganda. Some, such as the Democratic
Republic of the Congo, have gone even as far as to express in their national laws a
general invitation to international arbitration.30 Until recently, this was also the
case for Southern African Development Community (SADC) member States, who
collectively consented to investors from anywhere in the world bringing arbitral
proceedings against a SADC member State for any dispute concerning an
obligation of the latter in relation to an admitted investment of the former, and
provided that all available domestic remedies have been exhausted.31 This
collective expression of consent was codified in the 2006 SADC Protocol on
Finance and Investment before the instrument was amended in 2016.32

C. Africa’s Contribution to the Development of ICSID Jurisprudence

Beyond their participation in the nascent ICSID system, African States have also
played a key role in the development of ICSID jurisprudence.33
Since the birth of the ICSID system, only 11 out of the 45 African contracting
States to the ICSID Convention have not yet participated in an ICSID proceeding
(namely Benin, Botswana, Chad, Comores, Lesotho, Malawi, São Tomé and
Principe, Sierra Leone, Somalia, Swaziland and Zambia).34 Of the African
countries that did not ratify the ICSID Convention, three have participated in
ICSID proceedings by virtue of the ICSID Additional Facility (AF) Rules, which
24
Desert Line Projects LLC v Yemen, ICSID Case No ARB/05/17, Final Award (6 February 2008).
25
Southern Pac Properties (Middle East) Limited v Egypt, ICSID Case No ARB/84/3, Final Award (20 May 1992).
26
SGS Société Générale de Surveillance SA v Philippines, ICSID Case No ARB/02/6, Decision of the Tribunal on
Objections to Jurisdiction (29 January 2004).
27
Compañı́a de Aguas del Aconquija SA and Vivendi Universal SA v Argentina, ICSID Case No ARB/97/3, Decision
on Annulment (20 August 2007).
28
A.A. Agyemang, ‘African states and ICSID arbitration’ (1988) 21 Comp Intl Law J South Africa 177.
29
Countries that have incorporated international arbitration into their model Product Sharing Agreements include
Angola, Equatorial Guinea, Ethiopia, Ivory Coast, Kenya, Liberia, Libya, Mozambique, Tanzania and Uganda.
Countries that have incorporated this method of dispute settlement into their Mine Development Agreements include
the Democratic Republic of the Congo, Ghana and Tanzania.
30
Law No 004/2002 of 21 February 2002 on the Investment Code.
31
See SADC Protocol on Finance and Investment (signed 18 August 2006) art 28 <http://investmentpolicyhub.
unctad.org/Download/TreatyFile/2730> accessed 12 July 2019.
32
In August 2016, SADC Member States adopted an amended version of the Protocol on Finance and Investment,
which is yet to be ratified. For more details, see Luke Eric Peterson, ‘Investigation: In Aftermath of Investor
Arbitration Against Lesotho, SADC Member States Amend Investment Treaty so as to Remove ISDS and Limit
Protections’ IAReporter (20 February 2017) <www.iareporter.com/articles/investigation-in-aftermath-of-investor-arbi-
tration-against-lesotho-sadc-member-states-amend-investment-treaty-so-as-to-remove-isds-and-limit-protections/> ac-
cessed 12 July 2019.
33
For this part, see Olabisi Akinkugbe, ‘Reverse Contributors? African State Parties, ICSID, and the Development
of International Investment Law’ (2019) ICSID Rev—FILJ (forthcoming).
34
Le Cannu (n 12) Annex 1 495–500.
SPRING 2019 Africa’s Voice in International Investment Law 461

allow the ICSID centre to administer a dispute when a State party or a State
whose national is a party to the dispute has not ratified the ICSID Convention.35
These include South Africa, Equatorial Guinea and Libya. African States’
participation in the period from 1972 through 1980 was at its peak, with six
out of nine cases involving African States. As the number of other Member States
increased over the years, the share of ICSID proceedings involving African States

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decreased, from 10 out of 17 cases between 1981 and 2000, to 68 out of 319 cases
between 2000 and 2017.36 Over a 45-year timeframe, African countries have been
parties to 171 ICSID cases.37
The appointment of African arbitrators in ICSID arbitration has remained low
despite the surge in the number of cases involving African States as respondents.
In fact, the share of African arbitrators, conciliators and ad hoc Committee
members appointed in cases registered under the ICSID Convention has declined
from 5 percent of the total number of arbitrator, conciliator and ad hoc Committee
member appointments in 2009 to 3 percent in 2018.38 Despite these low numbers,
certain arbitral institutions have taken encouraging steps towards a proportional
representation of African arbitrators on the investment arbitration scene. In the
history of ICSID, for instance, only 41 African nationals had been appointed in
cases registered under the ICSID Convention up to 2009.39 Nine years later, this
figure more than doubled, as 93 African nationals had participated as arbitrators,
conciliators or ad hoc Committee members by the end of 2018.40 ICSID made a
majority of these appointments. Of the 50 Sub-Saharan African nationals who held
one of these positions, for instance, 29 were appointed by ICSID,41 showing the
institution’s most recent efforts to tackle Africa’s underrepresentation in invest-
ment arbitration.
Notwithstanding the fact that African countries are mostly respondents in the
ICSID cases to which they are party, their involvement in such proceedings has
contributed to the substantive development of international investment law.42 A
testament of their contribution is the fact that the very first dispute to be
registered before ICSID,43 the first case for which an award was rendered where
a State was the claimant,44 and the first successful counterclaim45 all involved an
African State.46 African States’ participation in these cases has played a
determining role for the development of international investment rules and
standards between 1972 and the 1990s.47 Among other major contributions,
35
ICSID Arbitration (Additional Facility) Rules (ICSID AF Arbitration Rules) (April 2006) art 2 <https://icsid.
worldbank.org/en/Documents/resources/AFR_2006%20English-final.pdf> accessed 12 July 2019.
36
Le Cannu (n 12) 472.
37
ibid Annex 1, 495–500.
38
ICSID, ‘The ICSID Caseload Statistics, Issue 2019-1’ 21–2 <https://icsid.worldbank.org/en/Documents/
resources/ICSID%20Web%20Stats%202019-1(English).pdf> accessed 12 July 2010; ICSID, ‘The ICSID Caseload
Statistics, Issue 2010-1’ 17 <https://icsid.worldbank.org/en/Documents/resources/2010-1%20English.pdf> accessed
12 July 2019.
39
‘ICSID Caseload Statistics, Issue 2010-1’ (n 38) 17.
40
‘ICSID Caseload Statistics, Issue 2019-1’ (n 38) 21–2.
41
ibid 20.
42
For further information, see, eg, Olabisi Akinkugbe, ‘Reverse Contributors? African State Parties, ICSID, and
the Development of International Investment Law’ (2019) ICSID Rev—FILJ (forthcoming).
43
Holiday Inns SA & Others v Morocco, ICSID Case No ARB/72/1.
44
Adriano Gardella SpA v Cote d’Ivoire, ICSID Case No ARB/74/1, Award (August 1977).
45
Maritime International Nominees Establishment v Republic of Guinea, ICSID Case No ARB/84/4.
46
Akinkugbe (n 42).
47
For further information on how African States’ participation in these three cases contributed to the development
of ICSID jurisprudence, see Akinkugbe (n 42).
462 ICSID Review VOL. 34

African States’ participation as ICSID parties between the 2000s and 2010 was
at the origin of the famous Salini test in international investment law. In fact, it
was Morocco’s objection to the tribunal’s ratione personae jurisdiction in a dispute
over compensation claims for a construction project which led the tribunal to
provide the now-famous four-way criteria to define the meaning of ‘investment’
under the ICSID Convention.48 More recently, African States’ involvement in

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ICSID proceedings has contributed to the inclusion of new themes in the
international investment law lexicon. For instance, it was the ICSID case
Bernhard von Pezold and others v Zimbabwe that clarified the conditions for
NGOs’ involvement as amici curiae in arbitral proceedings on the basis of human
rights violations.49
As the above discussion shows, the assertion that African countries have
occupied a mere ‘rule-taking’ position over the last 60 years of international
investment law practice is one that must be nuanced. Undeniably, African
countries have historically played a passive role in the conclusion of the majority of
their BITs with capital-exporting countries from the developed world. In the hope
of attracting more FDI to their territory, African countries concluded BITs that
followed the pre-drafted models of their contracting partners, serving as mere
conduits for the liberalization of investments. At the same time, however, African
countries actively contributed to the substantive development of international
investment law through their partaking in the creation of the ICSID system and
their involvement in ICSID proceedings.

III. THE ‘‘AFRICANIZATION’’ OF THE

INTERNATIONAL INVESTMENT LAW REGIME:
AFRICA AS A ‘RULE-MAKER’
At the turn of this century, the ‘legitimacy crisis’50 of international investment law
has served as a springboard for Africa’s more recent and active involvement in
shaping the field’s contours. As the international investment regime is under
scrutiny, the continent is planting the seeds for its reform.51 This is evident in the
development of new investment instruments at the national, bilateral, regional and
continental levels, which together mark a clear departure from old European-
styled IIAs (Subsection A). It is also manifest in the continent’s contribution to the
reform of the ISDS system (Subsection B). Together, these trends reflect African
countries’ desire to adapt the investment law game to their context, priorities and
realities. Most importantly, they show a new vision of Africa: that of a pioneer in
setting innovative standards for the reform of the international investment law
field.

48
Salini Costruttori SpA and Italstrade SpA v Kingdom of Morocco, ICSID Case No ARB/00/4.
49
Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No ARB/10/15.
50
Brower and Schill (n 2).
51
See Makane Moı̈se Mbengue and Stephan W Schill (eds), ‘Special Issue: Africa and the Reform of the
International Investment Regime’ (2017) 18 JWIT 367–584 and, among others: Stephan W Schill, ‘The New
(African) Regionalism in International Investment Law’ (2017) 18 JWIT 367–9; and Makane Moı̈se Mbengue,
‘Special Issue: Africa and the Reform of the International Investment Regime—An Introduction’ (2017) 18 JWIT
371–8.
SPRING 2019 Africa’s Voice in International Investment Law 463

A. African Regionalism in the Rethinking of International Investment Rules

African regionalism in the rethinking of international investment rules is taking
place within a multi-layered system of investment regulation. To better reflect their
policy and development priorities, certain African States have modernized their
domestic investment codes (Subsection (i)); others have reassessed the substantive

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content of their intra-African BITs (Subsection (ii)); regional efforts have also
been made to harmonize investment regulation (Subsection (iii)); and ultimately
culminated in a Pan-African vision for investment regulation at the continental
level (Subsection (iv)).

(i) At the national level: modernizing domestic investment codes

At the national level, it is only very recently that African States have transitioned
from ‘investment rule takers’ to ‘investment rule makers’. This transition can be
witnessed through the modernization of certain domestic investment codes, which
had so far followed the traditional model of investment protection that was earlier
discussed. Two recent examples will be discussed: the Egyptian Investment Law
No 72 of 2017 (Subsection (a)); and the South African Protection of Investment
Act of 2015 (Subsection (b)).

a) The Egyptian Investment Law No 72 of 2017

A telling example of African States’ prise en main to design investment regulation
according to their policy and development priorities is the landmark Egyptian
Investment Law, which was adopted in 2017.52
By replacing a law on investment guarantees and incentives that was more than
20 years old, this new legislation marks an important shift in Egypt’s investment
policy. The law focuses on the quality of FDI rather than its quantity, in line with
the Egyptian Strategy for Sustainable Development adopted in 2015.53 It does so
by stating sustainable development as its core objective,54 and encouraging those
domestic and foreign investments that contribute to the country’s sustainable
development and abide by responsible business conduct standards. Under this
instrument, investment guarantees55 are counter-balanced with investor obliga-
tions. In its article 15, the law provides for the social responsibility of investors and
introduces a very interesting requirement according to which investors have to
dedicate a percentage of their annual profits to the creation of social development
systems outside their projects, including in areas such as environmental protection,

52
Egyptian Investment Law No 72 of 2017, published in the Official Gazette on 31 May 2017 <https://
investmentpolicyhubold.unctad.org/InvestmentLaws/laws/167> accessed 12 July 2019.
53
Moataz M Hussein, ‘La nouvelle loi égyptienne relative à l’investissement met l’accent sur le développement
durable et la facilitation’ (IISD Investment Treaty News 2018) <https://www.iisd.org/itn/fr/2018/10/17/new-egyptian-
investment-law-eyes-on-sustainability-and-facilitation-moataz-hussein/> accessed 12 July 2019.
54
Egyptian Investment Law No 72 of 2017 (n 52) art 2 <https://investmentpolicyhubold.unctad.org/
InvestmentLaws/laws/167> accessed 12 July 2019. The sustainable development objective is corroborated by a
number of principles that should govern any investment activity in Egypt, ie (i) Equality of investment opportunities
and non-discrimination and supporting emerging companies, entrepreneurship and micro, small and medium
enterprises (MSMEs); (ii) Consideration of the social dimension, public health and environment protection; (iii)
Freedom of competition, prevention of monopoly and consumer protection; (iv) Compliance with principles of
governance, transparency, prudent management and non-conflict of interests; (v) Maintaining stability of investment
policies; (vi) Expedition and facilitation of investors’ transactions; (vii) Preserving national security and public interest.
55
(n 52) arts 3–8.
464 ICSID Review VOL. 34

healthcare, social care, cultural care, technical education, and research and
development.56 In addition, the law is noteworthy for its emphasis on investment
incentives and investment facilitation. It provides a number of general, special and
additional financial and procedural incentives for investment. The special
incentives, for instance, seek to support development-oriented enterprises on a
geographic and sectoral basis. Investors may deduct from their taxable net profits

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50 percent of investment costs in a given sector and 30 percent of investment costs
in another.57 The percentage of the tax incentives is thus based on the distinction
between the sectors, which in turn is based on the different needs for
development. As regards investment facilitation, the law further simplifies the
procedure for investors to establish themselves in Egypt. It creates the Investor
Service Centre to facilitate company incorporation and the issuance of approvals,
permits and licences for the set-up or management of investment enterprises and
to provide aftercare services, among others.58 Moreover, it mandates the
automation and unification of procedures related to incorporation and post-
incorporation services, including electronic incorporation;59 and provides that the
conditions, procedures and dates prescribed for the allocation of real estate
properties and the issuance of approvals, permits and licences related to
investment must be made available on the website and publications of the
competent authorities.60

b) The South African Protection of Investment Act of 2015

While Egypt has sought to issue a new investment code as part of the country’s
efforts to reform its BITs network, South Africa has taken a different path. The
country chose to respond to the inadequacy of traditional IIAs by unilaterally
terminating its old-generation BITs with nine countries (Austria, Belgium and
Luxembourg Economic Union, Denmark, France, Germany, the Netherlands,
Spain, Switzerland and the United Kingdom respectively)61 and instead sign into
law the Protection of Investment Act of 2015.62 The instrument is divided into 16
sections and its structure replicates that of traditional BITs. Its content, however,
departs from traditional treaty standards.
By adopting the Act, South Africa has sought to respond to the perception that
current IIAs are skewed in favour of foreign investors, thereby restricting host
States’ ability to fulfill their economic and social policy agenda. This plea emerges
in the language of the Act. For one, section 4 enunciates the instrument’s purpose
as three-fold: protecting investment with a view of balancing the country’s interests
with those of investors; affirming the country’s sovereign right to regulate
investments in the public interests; and pegging the Act to the Constitution.63
Additionally, certain provisions of the Act significantly lower the protection
56
ibid art 15.
57
ibid art 11. The law distinguishes between the so-called Sector A, which includes the geographic locations that
most urgently need development, and Sector B, which covers all other areas in Egypt.
58
ibid art 21.
59
ibid art 48.
60
ibid art 19.
61
South Africa thereby reduced the number of BITs in force to 12 (China, Cuba, Finland, Greece, Italy, Republic
of Korea, Mauritius, Nigeria, Russian Federation, Senegal, Sweden, Zimbabwe). See UNCTAD, ‘International
Investment Agreement Database’ (n 3).
62
Investment Promotion and Protection Bill (2015), Act No 22 of 2015, Official Gazette, ol 606, No 39514.
63
ibid Section 4.
SPRING 2019 Africa’s Voice in International Investment Law 465

afforded to foreign investments compared with the substantive standards contained

in most BITs. A noteworthy illustration is the Act’s departure from what had
become the norm in international investment law64 by granting in section 6
foreign investors ‘fair administrative treatment’ rather than the traditional FET
treatment standard.65 The newly enacted standard differs in that it does not
include any explicit reference to discriminatory conduct. When pursuing their

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public policies, South African authorities are thus free to adopt measures that do
not amount to arbitrariness de jure, yet may be discriminatory de facto. South
Africa’s desire to strike a balance between encouraging investments and
safeguarding its public objectives can also be seen in the way in which the Act
waters down the extension to foreign investors of the treatment reserved to
domestic investors. It does so by providing for broadly worded exceptions to the
national treatment standard codified in section 8.
Finally, the Act does not provide for ISDS as regards the settlement of disputes
between investors and South Africa. Instead, it provides for two types of domestic
remedies: mediation facilitated by the South African Department of Trade and
Industry, and litigation in domestic fora should mediation be unsuccessful.
International arbitration may be envisioned, provided that the South African
Government consents to it and that domestic remedies are exhausted. In this
event, the arbitration will be conducted between South Africa and the home State
of the applicable investor.66

(ii) At the bilateral level: rethinking intra-African BITs

At the bilateral level, African countries have recently started to move away from
the classic standards of protection contained in most BITs and towards more
balanced investment agreements. The most innovative approaches can be found in
intra-African BITs.67 The 2016 intra-African BIT between Nigeria and Morocco
is perhaps the most pertinent example.68
In addition to making sustainable development its overarching objective, this
BIT balances investors’ rights and obligations in its substantive provisions. The set
of investors’ rights is comparable to those traditionally contained in IIAs. The
scope of protection is, however, limited to those investments that fulfil the criteria
of the treaty’s investment definition. This definition requires that an investment
has to display all of the four characteristics of the Salini test—namely, stating that
investments have to contribute to the sustainable development of host States.69
Moreover, the definition also excludes portfolio investments.70 Despite the
controversies around the standard, the Morocco–Nigeria BIT includes a provision
on FET. Under its article 7, investors are entitled to the minimum standard of
treatment guaranteed under customary international law.
64
Tarcisio Gazzini, ‘Rethinking The Promotion and Protection of Foreign Investments: The 2015 South Africa’s
Protection Investment Act’ (2017) <https://ssrn.com/abstract=2960567>.
65
Investment Promotion and Protection Bill (2015) (n 62) Section 6.
66
ibid Section 13.
67
See Makane Moı̈se Mbengue and Stefanie Schacherer, ‘IIAs in Africa’ in J Chaisse and L Choukroune (eds),
Handbook of Investment Law (Springer forthcoming 2019).
68
The Morocco–Nigeria BIT awaits ratification by Nigeria (Reciprocal Investment Promotion and Protection
Agreement Between the Government of the Kingdom of Morocco and the Government of the Federal Republic of
Nigeria (signed 3 December 2016) <https://investmentpolicy.unctad.org/international-investment-agreements/treaty-
files/5409/download> accessed 12 July 2019.
69
ibid art 1(3).
70
ibid.
466 ICSID Review VOL. 34

The BIT then recalibrates investment protection by imposing upon investors a

series of obligations. In the pre-establishment phase, the latter must comply with
environmental assessment screening and assessment processes as well as a social
impact assessment.71 In the post-establishment phase, investors must apply the
precautionary principle;72 must maintain an environmental management system
and uphold human rights in accordance with core labour and environmental

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standards as well as labour and human rights obligations of the host State or home
State;73 shall never engage or be complicit in corruption practices and must meet
or exceed national and internationally accepted standards of corporate govern-
ance;74 and lastly shall adhere to high levels of socially responsible practices and
apply the International Labour Organization (ILO) Tripartite Declaration on
Multinational Investments and Social Policy.75
The BIT provides for recourse to investor–State arbitration in the event that a
dispute could not be settled within six months by the Joint Committee that is the
main (political) body established under the BIT.76 Lastly, the BIT introduces a
novel provision on the liability of investors, who ‘shall be subject to civil actions for
liability in the judicial process of their home state for the acts or decisions made in
relation to the investment where such acts or decisions lead to significant damage,
personal injuries or loss of life in the host state’.77

(iii) At the regional level: integrating investment regulations

Besides BITs, regional investment agreements have emerged within the African
continent, as Africa’s regional integration has been a stated priority agenda for
African governments since the early years of independence.78 Today, Africa’s
regional integration is a complex web of various regional economic communities
(RECs). In West Africa, there are three RECs: the West African Economic and
Monetary Union (UEMOA), the Mano River Union (MRU) and the Economic
Community of West African States (ECOWAS). Central Africa has two groupings:
the Economic Community of Central African States (ECCAS) and the Economic
Community of Great Lakes Countries (ECGLC). In Eastern and Southern Africa,
six groupings co-exist: the Common Market for Eastern and Southern Africa
(COMESA), the East African Community (EAC), the Inter-Governmental
Authority on Development (IGAD), the Indian Ocean Commission (IOC), the
Southern Africa Development Community (SADC) and the Southern African
Customs Union (SACU). North Africa shares two RECs: the Arab Maghreb
Union (UMA) and the Community of Sahel-Saharan States (CEN-SAD). As a
consequence, today, of the 55 African countries, 28 retain dual membership, 20
are members of three RECs, the Democratic Republic of Congo belongs to four
71
ibid art 14(1)–(2).
72
ibid arts 1(3) and 14(3).
73
ibid arts 1(3) and 18.
74
ibid arts 1(3) and 19.
75
ibid arts 1(3) and 24.
76
ibid arts 1(3) and 26.
77
ibid arts 1(3) and 20: ‘Investors shall be subject to civil actions for liability in the judicial process of their home
state for the acts or decisions made in relation to the investment where such acts or decisions lead to significant
damage, personal injuries or loss of life in the host state.’
78
Gesellschaft für Technische Zusammenarbeit (GTZ), ‘Regional Economic Communities in Africa: A Progressive
Overview’ (2009) 8 <www2.giz.de/wbf/4tDx9kw63gma/RECs_Final_Report.pdf> accessed 12 July 2019.
SPRING 2019 Africa’s Voice in International Investment Law 467

RECs and six countries maintain singular membership.79 Most founding treaties
of these RECs contain provisions on investment.80
Moreover, the majority of these RECs have adopted specific legal instruments
concerning the regulation of foreign investment.81 Several instruments have been
adopted to enhance cooperation and harmonization in the area of foreign
investment.82 Hence, each African REC has at least one instrument relating

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directly or indirectly to investment. The picture becomes more intricate when one
considers that many African States are members of two or more RECs at the same
time. While regional economic integration is generally perceived to benefit the
economy, and thus to foster foreign and domestic investment,83 the multiple and
overlapping commitments arguably make Africa’s integration efforts in relation to
investment harmonization inefficient. Yet, the trend for more regional harmon-
ization is unbroken.
At the same time, by adopting their investment rules, African RECs play a
prominent role in the development of international investment law.84 The RECs
adopted investment instruments, in the form of IIAs as well as model IIAs, which
they consider to be more adequate in light of the specific needs of African
countries.85 In particular, the most recent instruments elaborated by COMESA
(Subsection a)), ECOWAS (Subsection b)) and SADC (Subsection c)) all seek to
combine attracting investors and achieving sustainable development objectives.86

a) Common Market of Eastern and Southern Africa (COMESA)

The first regional investment agreement to propose an approach that is sensitive to
the needs of African countries is one elaborated in 2007 by COMESA, which was
to establish the COMESA Common Investment Area.87 While the investment
agreement is yet to enter into force, as the required threshold of ratification by at
least six member States has not been met, it has attracted attention because of its
innovative features. One is its provision on investor obligation.88 Another is the
possibility for COMESA Respondent States to ‘assert as a defence, counterclaim,
right of set off or other similar claim’ that the COMESA investor bringing the
claim has failed to observe applicable national law.89
79
ibid 9.
80
See, eg, Treaty for the Establishment of the East African Community (signed 30 November 1999, entered into
force 7 July 2000) arts 79 and 80.
81
The following analysis is based on data from UNCTAD; see UNCTAD, ‘International Investment Agreement
Database’ (n 3).
82
For instance, the 1965 CEMAC Investment Agreement, the 1982 ECGLC Investment Code or the 1990 Arab
Maghreb Union Investment Agreement; ECOWAS adopted two protocols that relate indirectly to foreign investment:
the 1984 ECOWAS Protocol on Community Enterprises and the 1979 ECOWAS Protocol on Movement of Persons
and Establishment.
83
United Nations Economic Commission for Africa (UNECA), ‘Assessing Regional Integration in Africa V:
Towards an African Continental Free Trade Area’ (ECA 2012) 3 <www.unece.org/fileadmin/DAM/trade/TF_
JointUNRCsApproach/ECA_RegionalIntegrationInAfrica.pdf> accessed 12 July 2019.
84
Crosato and others (n 4) 26.
85
The EAC also launched investment initiatives by adopting a model investment code in 2006; see EAC Model
Investment Code of 2006 <www.tralac.org/images/Resources/EAC/EAC%20Model%20Investment%20Code%
202006.pdf> accessed 12 July 2019.
86
Crosato and others (n 4) 26.
87
See Investment Agreement for the COMESA Common Investment Area (signed 23 May 2007) <http://
investmentpolicyhub.unctad.org/IIA/treaty/3225> accessed 12 July 2019.
88
ibid art 13: ‘COMESA investors and their investments shall comply with all applicable domestic measures of the
Member State in which their investment is made.’
89
ibid art 28(9).
468 ICSID Review VOL. 34

More recently, COMESA has worked on a Common Investment Agreement

(CCIA Agreement) as a revision of the 2007 agreement. The instrument seeks to
strengthen further the sustainable development dimension of foreign investment
regulation and to safeguard the right of host States to regulate. The finalized text
of 2016 was submitted to the COMESA Committee on Legal Affairs in
September 2017.90 However, at the time of writing this article, the text has not

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been officially published and is not yet open for signature.91 The new CCIA
Agreement is remarkable in a number of ways. For one, it further narrows down
the wide scope that investment protections standards traditionally enjoy. For
instance, FET has been limited to fair judicial and administrative treatment.92
Another noteworthy feature is the specific part that imposes a wide range of
obligations upon investors, regarding human rights, environmental protection and
social standards. Lastly, as regards dispute settlement between host State and
investor, COMESA provides for disputes to be referred to the COMESA Court of
Justice (COMESA Court) or to a tribunal constituted under such Court, provided
that local remedies have been exhausted and unless otherwise agreed by the
disputing parties by specific written agreement.

b) Economic Community of Western African States (ECOWAS)

Different instruments regulate investment within ECOWAS.93 Of particular interest is
the 2008 ECOWAS Supplementary Act on Investments,94 which grants the usual
range of protections (national treatment, MFN, FET, reasonable protection and
security) to intra-ECOWAS investors. Yet, a reading of certain treaty provisions
suggests that its coverage might also extend to non-ECOWAS investors in some
cases.95 Moreover, the Court of Justice of the Economic Community of West African
States (ECCJ) can function as a default mechanism for the settlement of investor–
State disputes under the ECOWAS Supplementary Act.96
In July 2018, ECOWAS adopted the ECOWAS Common Investment Code
(ECOWIC),97 which is yet to enter into force. This new code is to apply to investors
90
UNCTAD, ‘World Investment Report 2018—Investment and New Industrial Policies’ (UNCTAD 2018) 90
<https://unctad.org/en/PublicationsLibrary/wir2018_en.pdf> accessed 12 July 2019.
91
Text on file with the author.
92
One can note that this is a clear influence of the South African approach; see Investment Promotion and
Protection Bill (2015) (n 62) Section 6.
93
ECOWAS Treaty (revised in 1993); the ECOWAS Protocol on Movement of Persons and Establishment; the
ECOWAS Energy Protocol; as well as the ECOWAS Supplementary Act on Investments; see <https://
investmentpolicy.unctad.org/international-investment-agreements/groupings/26/ecowas-economic-community-of-west-
african-states-> accessed 12 July 2019.
94
ECOWAS Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for
their Implementation with ECOWAS (2008).
95
Matthew Happold and Relja Radović, ‘The ECOWAS Court of Justice as an Investment Tribunal’ (2017) 19
JWIT 95–117.
96
ECOWAS Supplementary Act (n 94) art 33:

‘6. Any dispute between a host Member State and an Investor, as envisaged under this Article that is not
amicably settled through mutual discussion may be submitted to arbitration as follows:
(a) a national court; (b) any national machinery for the settlement of investment disputes; (c) the relevant
national court of the Member States.
7. Where in respect of any dispute envisaged under this Article, there is disagreement as to the method of
dispute settlement to be adopted; the dispute shall be referred to the ECOWAS Court of Justice.’ See
Matthew Happold, ‘Using African Regional Courts as Fora for the Settlement of Investment Disputes? The
Case of the ECOWAS Court’ (2019) ICSID Rev—FILJ (forthcoming).
97
ECOWAS Common Investment Code (ECOWIC) (July 2018); the document is not publicly available but is on
file with the author.
SPRING 2019 Africa’s Voice in International Investment Law 469

of a given ECOWAS member State investing in another member State. On the whole,
the ECOWIC contains very similar approaches to the discussed instruments.
Typically, the main objective is sustainable development; the definition of an
investment is linked to the investment’s contribution to the development of the host
State;98 and the otherwise highly popular provision on FET was not included.
Additionally, the ECOWIC contains a set of horizontal obligations on broader policy

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issues, such as environmental protection, labour standards and economic develop-
ment including anti-corruption that apply to both investors and member States.99

c) Southern African Development Community (SADC)

The 2006 SADC Protocol on Finance and Investment (SADC Investment
Protocol)100 is currently the main text relating to investment regulation that is in
force in the SADC. The instrument states the need to inscribe foreign investments
into the bigger regional efforts of sustainable development promotion.101 Annex 1
to the SADC Investment Protocol (the Annex) encourages SADC member States
to create a predictable investment climate in order to attract investment in their
territories. With this purpose in mind, the Annex provides for substantive
investment protection standards including provisions on expropriation, FET and
ISDS. In its 2006 version, this instrument has become highly controversial as a
number of investment claims have been filed against SADC member States.102
The Annex’s broad scope recently led a tribunal to deem that it applied to all
foreign investors, as well as domestic ones.103
Against this backdrop, SADC member States have elaborated an amended
version of Annex I to the SADC Protocol on Finance and Investment, which was
finalized in August 2016. Among the key changes is the deletion of the FET
provision and the complete removal of the ISDS mechanism.104 Additionally, the
amended version limits investment protection to investors of a SADC member
State investing in another SADC member State, thereby excluding investors of
third States.
98
ibid art 1(h): ‘a significant contribution to the host State’s economic development’.
99
This constitutes a striking similarity with the PAIC. The PAIC will be discussed in Section III.A.(iv).
100
See SADC Protocol on Finance and Investment (signed 18 August 2006) <http://investmentpolicyhub.unctad.
org/Download/TreatyFile/2730> accessed 12 July 2019. In August 2016, SADC member States adopted an amended
version of the Protocol on Finance and Investment, which is yet to be ratified. For more details, see Luke Eric
Peterson, ‘Investigation: In Aftermath of Investor Arbitration Against Lesotho, SADC MemberStates Amend
Investment Treaty so as to Remove ISDS and Limit Protections’ IAReporter (20 February 2017) <www.iareporter.
com/articles/investigation-in-aftermath-of-investor-arbitration-against-lesotho-sadc-member-states-amend-investment-
treaty-so-as-to-remove-isds-and-limit-protections/> accessed 12 July 2019.
101
SADC Protocol on Finance and Investment art 2.2.
102
Agreement Amending Annex 1 (Co-operation on Investment) of the Protocol on Finance and Investment
(signed 17 May 2017, not yet entered into force) (Agreement Amending Annex 1) <http://www.sadc.int/files/7114/
9500/6315/Agreement_Amending_Annex_1_-_Cooperation_on_investment_-_on_the_Protocol_on_Finance__Investment_-
_English_-_2016.pdf> accessed 12 July 2019.
103
A very broad interpretation was made by the Tribunal in Swissbourgh Diamond Mines (Pty) Limited, Josias Van
Zyl, The Josias Van Zyl Family Trust and others v The Kingdom of Lesotho, PCA Case No 2013-29 (First Case),
UNCITRAL, Partial Award on Jurisdiction and Merits (18 April 2016). The award has not been published. For more
detail, see Luke Eric Peterson, ‘Investigation: Lesotho is held liable for investment treaty breach arising out of its role
in hobbling a regional tribunal that had been hearing expropriation case’ IAReporter (14 July 2016) <https://www.
iareporter.com/articles/investigation-lesotho-is-held-liable-for-investment-treaty-breach-arising-out-of-its-role-in-hob-
bling-a-regional-tribunal-that-had-been-hearing-expropriation-case/> accessed 12 July 2019.
104
Agreement Amending Annex 1 (n 102) art 25 (‘Access to Courts and Tribunals’): ‘State parties shall ensure that
investors gave the right of access to the courts, judicial and administrative tribunals, and other authorities competent
under the laws of the Host State for redress of their grievance in relation to any matter concerning their investment
including but not limited to the right for judicial review of measures relating to expropriation or nationalization and
determination of compensation in the event of expropriation or nationalization.’
470 ICSID Review VOL. 34

In addition to the Protocol, the SADC region adopted a Model Treaty,105 which
expresses even more clearly development concerns. The purpose of this non-
binding instrument is to enhance harmonization of investment regimes in the
region and to provide an effective tool for the future conclusion of IIAs by SADC
member States.106 A first edition of the Model BIT was published in 2012107 and
has recently been updated by a second edition.108 The revised SADC Model BIT

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takes a similar approach to its previous version and other African instruments by
making sustainable development the overarching objective of the instrument;109 by
linking the definition of investment to the criteria requiring investments to
contribute to the sustainable development of host States;110 and by counter-
balancing investment protection standards with a set of investor obligations.111
The instrument also maintains the standard of ‘Fair Administrative Treatment’112
and reiterates that investment protection is to be limited to the post-establishment
phase.113 The new Model BIT differs from its first edition by taking a stronger
stand in excluding ISDS as it removes it from the actual treaty text.114 However,
upon the request of some SADC members, an appropriate text on ISDS has been
annexed to the reviewed model.115

(iv) At the continental level: a pan-African vision for investment regulation

At the continental level, African regionalism in investment governance has
culminated in the 2015 codification of the first African continent-wide investment
code, called the Pan-African Investment Code (PAIC)116 (Subsection a)), which is
currently serving as the main basis for the negotiations on the Investment Protocol
to the Agreement establishing an African Continental Free Trade Area (AfCFTA)
(Subsection b)).

105
SADC, ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (2012) <www.iisd.org/itn/wp-
content/uploads/2012/10/sadc-model-bit-template-final.pdf> accessed 12 July 2019 (SADC Model BIT).
106
ibid Commentary, 3.
107
SADC Model BIT (2012) (n 105).
108
SADC Model Bilateral Investment Treaty Template with Commentary, Second Edition, June 2017. (Revised
SADC Model BIT); the instrument is not publicly available but is on file with the author.
109
ibid preamble and art 1.
110
ibid art 2.
111
A series of obligations have been maintained, including investor obligations against corruption (art 10);
compliance with domestic laws (art 11); obligations on information and transparency with respect to investment
contracts (arts 12 and 18); the obligation to conduct an environmental and social impact assessments (art 13); other
obligations on environmental protection, labour protection and human rights (arts 14 and 15); and lastly the
obligation to respect corporate governance standards (art 16).
112
ibid art 5(1):

‘The States Parties shall ensure that their administrative, legislative and judicial processes do not operate in a
manner that is manifestly arbitrary or constitutes:
(a) denial of justice in criminal, civil or administrative proceedings;
(b) un-remedied and egregious violations of due process;
(c) targeted discrimination on manifestly unjustified grounds, such as gender, race or religious belief; or
(d) manifestly abusive treatment, such as coercion, duress and harassment and other similar issues.’
113
ibid pt 2 (‘Investor Rights Post-Establishment’).
114
ibid pt 5.
115
ibid, Annex 1 (‘Investor–State Dispute Settlement’).
116
The author was involved in the elaboration process between 2014 and 2016 and was the lead expert and
negotiator for the African Union during this period. Some of the information contained in this article is based on the
experience of the author. The PAIC (dated March 2016) is available at <http://repository.uneca.org/handle/10855/
23009> accessed 18 April 2019.
SPRING 2019 Africa’s Voice in International Investment Law 471

a) The Pan-African Investment Code (PAIC)

Together with the bilateral, national and regional initiatives aforementioned, the
PAIC demonstrates Africa’s ability to actively participate in international invest-
ment law by shaping IIAs to reflect the continent’s own context, priorities and
realities. Most importantly, this continental approach opens up a new role for
Africa: that of a pioneer in the setting of innovative investment standards that have

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the potential of being replicated outside the region.117
It has been argued elsewhere that the PAIC does not seek an African solution to
an African problem.118 This is a misperception of its underlying objective and
rationale. From the very start of the negotiations, it was the intention of the
African Union (AU) and its member States for the PAIC to be elaborated by
Africans for Africans. Contrary to what has been contended, the drafters did not
underrate the necessity of attracting foreign capital into Africa to expedite the
continent’s integration process.119 Rather they started from the premise that this
necessity should not neutralize the equally important need for addressing specific
aspects of African development. Consequently, the PAIC puts the long-term goal
of securing sustainable development at its core. This is visible starting with the
instrument’s Preamble, which makes sustainable development the primary
objective of the code. By doing so, the Preamble emphasizes the importance of
the Sustainable Development Goals (SDGs) for the economic, social and
environmental development of the continent.120 It is also observable in the way
the code reformulates traditional investment treaty provisions. The enterprise-
based definition of investments is one illustration.121 As the PAIC’s primary
objective is to promote, facilitate and protect investments that foster sustainable
development, the drafters considered that protected investors should be those
enterprises or companies who bring constructive economic and social benefits to
the member States. Another illustration is the way in which the PAIC has
reformulated and added to the traditional standards of investment protection:
namely MFN and national treatment. Dominant models of IIAs make an
unqualified reference to the term ‘like circumstances’ in their MFN and national
treatment clauses, leading to inconsistent case law on what the scope of this term
entails. They also differ as regards the exceptions from MFN treatment. The
PAIC, on the other hand, draws inspiration from the 2007 CCIA Agreement and
expressly refers to the circumstances that should be taken into account when
assessing the scope of the wording in question so as to avoid unpredictable
outcomes.122 It also contains two specific articles addressing the exceptions to the
MFN and the national treatment clauses.123 One last illustration of how the code
reformulates traditional investment treaty provisions in line with African States’
117
See Makane Moı̈se 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 414–48;
Makane Moı̈se Mbengue and Stefanie Schacherer, ‘Africa and the Rethinking of International Investment Law: About
the Elaboration of the Pan-African Investment Code’ in Anthea Roberts and others (eds), Comparative International
Law (OUP 2018) 547–69; Makane Moı̈se Mbengue and Stefanie Schacherer, ‘Africa as Investment Rules Maker:
Decrypting the Pan-African Investment Code’ AfYIL (forthcoming 2019).
118
Won Kidane, ‘Contemporary International Investment Law Trends and Africa’s Dilemmas in the Draft Pan-
African Investment Code’ (2018) 50 Geo Wash Intl L Rev 572.
119
ibid.
120
PAIC (n 116) preamble, para 8.
121
ibid art 4.
122
ibid arts 7.3 and 9.3.
123
ibid arts 8 and 10.
472 ICSID Review VOL. 34

needs lies in the absence of any provision on FET given the current controversy
over its content and uncertainty with regards to its interpretation.
A highly innovative feature that ranks the PAIC among the boldest investment
instruments adopted so far, is the imposition of certain obligations on investors,
which include the duty to comply with corporate governance standards, to adhere
to socio-political obligations, to refrain from bribery, to adhere to corporate social

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responsibility standards, to use natural resources in a responsible manner, and to
comply with business ethics and human rights.124 In addition, the PAIC spells out
horizontal obligations that are addressed to both the host States and the investors.
They refer to basic principles as to how State contracts as well as public–private
partnerships should be designed; how African States should adapt their labour
policies and resource development; and how investors can help to promote
technology transfer, clean technologies and environmental protection. Lastly, the
PAIC gives host country governments the discretion to implement ISDS, thereby
offering a middle ground solution to African States that are either pro-ISDS or
anti-ISDS.

b) The Investment Protocol to the African Continental Free Trade Area

(AfCFTA)
The PAIC is serving as the main basis for the negotiations on the Investment
Protocol to the Agreement establishing an African Continental Free Trade Area
(AfCFTA). The crucial question is the extent to which continent-wide consensus
can be found on some of the remaining controversial issues of international
investment regulation. From the post-PAIC African investment instruments, one
can conclude that there is not yet a clear consensus on whether the FET standard
is to be completely excluded or rather be adapted to a standard of fair
administrative treatment. In the same vein, ISDS and the appropriateness of its
alternatives continue to be controversial among African countries. In contrast,
clear consensus is given for making sustainable development the overarching
objective of investment regulation, for having investment definitions that are linked
to the economic or sustainable development of host States, and for clear and
binding obligations on foreign investors. These are challenges that will characterize
the negotiations of the future Investment Protocol of the AfCFTA.

B. African Regionalism in the Reform of the Investor–State Dispute Settlement

(ISDS) System
As we enter a new era of investment law regulation in the development of which
Africa has played a central part, several commentators have interpreted recent
reforms in certain African jurisdictions as an outright rejection of ISDS on the
continent.125 On the face of it, discussing Africa’s contribution to ISDS may
therefore seem counterintuitive.
However, notwithstanding a few developments prohibiting recourse to ISDS,
there does not exist a Pan-African trend away from ISDS. In fact, in order to
124
Eric De Brabandère, ‘Human Rights and International Investment Law’ in Research Handbook on Foreign Direct
Investment (Edward Elgar Publishing 2019) 619–45.
125
See, eg, Won Kidane, ‘Alternatives to Investor–State Dispute Settlement: An African Perspective’ (GEGAFRICA
Discussion Paper, 2018).
SPRING 2019 Africa’s Voice in International Investment Law 473

disengage effectively from this mechanism, African States would have to withdraw
from all of their investment treaties in order to prevent foreign investors from
structuring or restructuring their investments so as to come under the scope of
protection of any remaining investment treaty.126 Doing so would be counter-
intuitive, given their latest efforts to ‘Africanize’ the rules of investment law
according to their own circumstances. Today, African States are signatories to

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more than 900 BITs, which prescribe ISDS as a means of resolving disputes
between foreign investors and host States.127
Even the initiatives that have been taken to disengage from ISDS should be
nuanced. Notwithstanding its most recent investment law that excludes ISDS,
South Africa continues to sign investment agreements with other African States,
most of which include a recourse to investment arbitration.128 Likewise, the
SADC’s amendment of its Protocol to replace ISDS with domestic remedies
cannot be viewed in isolation to the fact that Annex 1 preserves the right of
Member States to enter into BITs. Nor should it be forgotten that an appropriate
text on ISDS was annexed to the 2017 version of the SADC Model BIT upon the
request of certain member States.
In fact, for every development that is ‘against ISDS’, there exists countervailing
African initiatives that introduce unique features to the ISDS mechanism. African
countries have taken three positions vis-à-vis the reform of the ISDS system:
tailoring the reform of ISDS according to their own needs and realities (i);
‘Africanizing’ the investment arbitration system (ii) and; conducting ISDS via
regional judicial organs (iii).

(i) Tailoring ISDS according to African States’ needs and realities

A majority of African countries continue to see ISDS as an essential tool to
enhance their economies’ attractiveness for foreign investors. The ever-increasing
recourse to ICSID arbitration by investors from African States129 may very well be
the best indicator of this trend. As a result, many of these States’ most recently
concluded investment instruments include detailed dispute resolution provisions
that maintain the ISDS mechanism yet significantly depart from its traditional
features so as to avoid certain of the ISDS system’s shortcomings.
To regulate investors’ access to ISDS better, certain instruments have, for
instance, sought to reduce the subject-matter scope of ISDS claims. This is the
case for the 2012 Cameroon–Turkey BIT, which excludes claims relating to real
estate from the scope of arbitral review.130 On the other hand, it is likely that the
revised version of the 2007 CCIA Agreement will narrow the range of investors
who fall within their scope. The draft agreement only applies to investments of
COMESA investors that have been specifically registered with the relevant
126
Stephan S Schill, ‘Reforming Investor–State Dispute Settlement (ISDS): Conceptual Framework and Options
for the Way Forward’ (E15 Task force on Investment Policy 2015) 7 <http://e15initiative.org/wp-content/uploads/
2015/07/E15-Investment-Schill-FINAL.pdf> accessed 12 July 2019.
127
African Union, ‘Training on the Settlement of Disputes: The African Continental Free Trade Area’ <https://au.
int/en/newsevents/20190513/training-settlement-disputes-african-continental-free-trade-area> accessed 12 July 2019.
128
See indicatively the BITs concluded between South Africa and Algeria, Congo, Egypt, Ethiopia, Equatorial
Guinea, Gabon, Ghana, Libya, Senegal and United Republic of Tanzania.
129
Le Cannu (n 12).
130
Agreement Between the Government of the Republic of Turkey and the Government of the Republic of
Cameroon Concerning the Reciprocal Promotion and Protection of Investments (signed 24 April 2012, not yet
entered into force) art 4.4(d).
474 ICSID Review VOL. 34

authority of a member State and only cover investments made in accordance with
the laws and regulations of the member State in question.131
Although rare, the requirement of the exhaustion of local remedies has also been
included in several agreements. At the bilateral level, the 2002 China–Côte
d’Ivoire BIT requires foreign investors to exhaust the domestic administrative
review procedure specified in the laws and regulations of the host State before it

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can submit the dispute to arbitration.132 At the regional level, it is likely that the
revised version of the 2007 CCIA Agreement will require COMESA investors to
exhaust local remedies in the host member State prior to resorting to ISDS.133
At the continental level, the drafters of the PAIC have also decided to include the
requirement for foreign investors to first exhaust local remedies in the member
State where their investment is located before a request for arbitration can be
submitted.134 The PAIC goes one step further by also subjecting investors’ resort
to ISDS to the host State’s consent for arbitration, which is to be given on a case-
by-case basis or on the basis of the host State’s national law.135
To balance investors’ rights and obligations better as regards their right to bring
claims, some agreements have included time limits for bringing claims and
introduced ‘fork in the road’ clauses. The revised version of the 2007 CCIA
Agreement and Annex 1 of the revised 2017 SADC Model BIT both envision a
three-year limit from the event giving rise to the claim.136 Likewise, they will likely
prevent claimant investors from pursuing their ‘old’ claims in international
arbitration.137 Innovatively, certain instruments have also sought to put a
particular focus on ADR mechanisms. Article 10(1) of the 2016 Rwanda–
Turkey BIT, for instance, requires the foreign investor to settle his dispute with the
131
Draft of the revised Investment Agreement for the COMESA Common Investment Area (CCIA) (on file with
the author) art 3(1): ‘This Agreement shall only apply to investments of COMESA investors that have been registered
by relevant authority of the host state as listed in Annex B, and in accordance with the relevant procedures of the host
state.’
132
Agreement between the Government of the People’s Republic of China and The Republic of Côte d’Ivoire on
the Promotion and Protection of Investments (signed 30 September 2002) art 9(3) <https://investmentpolicy.unctad.
org/international-investment-agreements/treaties/bilateral-investment-treaties/885/china---c-te-d-ivoire-bit-2002-> ac-
cessed 12 July 2019.
133
Draft of the Revised Investment Agreement for the COMESA Common Investment Area (n 131) art 36(3):
‘COMESA investor or its investment may submit a claim to arbitration pursuant to this Agreement, provided that the
COMESA investor or investment, as appropriate:

(a) has first submitted a claim before the domestic courts of the Host State for the purpose of pursuing local
remedies, after the exhaustion of any administrative remedies, and that a resolution has not been reached
within a reasonable period of time from its submission to a local court of the Host State;’
134
PAIC (n 116) art 42.3.
135
ibid art 42.3.
136
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 36(4): ‘No
claim shall be submitted to arbitration if more than three (3) years have elapsed from the date on which the
COMESA investor or its investment first acquired, or should have first acquired, knowledge of the breach and
knowledge that the COMESA investor or its investment has incurred loss or damage.’; revised 2017 SADC Model
BIT (n 108) Annex 1(3): ‘An Investor may submit a claim to arbitration pursuant to this Agreement, provided that
the following conditions have been fully complied with:

(d) No more than three years have elapsed from the date on which the Investor first acquired, or should have
first acquired, knowledge of the breach alleged in the Notice of Arbitration and knowledge that the Investor
has incurred loss or damage, or one year following the conclusion of the proceedings for local remedies
initiated in the domestic courts.’
137
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 36(6): ‘If
the COMESA investor elects to submit a claim at one of the fora set out in paragraph 1 of this Article, that election
shall be definitive and the investor may not thereafter submit a claim relating to the same subject matter or underlying
measure to other fora.’; revised 2017 SADC Model BIT (n 108) Annex 1(3): ‘An Investor may submit a claim to
arbitration pursuant to this Agreement, provided that the following conditions have been fully complied with:
SPRING 2019 Africa’s Voice in International Investment Law 475

host State by consultations and negotiations in good faith before resorting to

arbitration.138 Likewise, the revised version of the 2007 CCIA Agreement and
Annex 1 to the revised 2017 SADC Model BIT make recourse to ADR mandatory
before any investor-State disputes can be submitted to arbitration.139
To foster a more predictable and coherent reading of the instrument’s provisions
in line with the parties’ intention, some investment instruments leave host States

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an interpretative role.140 For instance, the 2012 edition of the SADC Model BIT
provides that ‘[J]oint decision of the State Parties, each acting through its
representative designated for purpose of this Article, declaring their joint
interpretation of a provision of this Agreement, shall be binding on any tribunal,
and any decision or award issued by a tribunal must apply and be consistent with
that joint decision’.141
Several instruments also contain novel provisions as regards arbitral procedure.
Concerns about the lack of transparency in ISDS has led the 2007 CCIA
Agreement to require that all documents relating to the arbitral process, as well as
oral hearings on procedural and substantive matters, be made available to the
public. This provision is subject to the tribunal’s discretion to take the necessary
steps in order to protect confidential business information.142 Similarly, the draft
of its revised version subjects any arbitration between an investor and a State
under the agreement to the UNCITRAL Rules on Transparency in Treaty-Based
Investor–State Arbitration.143 Concerns about the risk of multiple claims arising
from a dispute have also resulted in the creation of provisions for the consolidation
of claims that raise common questions of law or fact. This is the case for the 2016
Nigeria–Singapore BIT, among others.144

(ii) ‘Africanizing’ the investment arbitration system

Notwithstanding a few developments prohibiting recourse to investment arbitra-
tion, it seems that the majority of African States still foresee this method of dispute
resolution as an attractive alternative to domestic courts across the continent. The

(c) The Investor has provided a clear and unequivocal waiver of any right to pursue and/or to continue any
claim in any other forum whatsoever relating to the measures underlying the claim made pursuant to this
Agreement, on behalf of both the Investor and the Investment.’
138
Agreement between the Government of the Republic of Rwanda and the Government of the Republic of Turkey
Concerning Reciprocal Promotion and Protection of Investments, (signed 3 November 2016, not yet entered into
force) art 10(1) <https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-invest-
ment-treaties/3714/rwanda---turkey-bit-2016-> accessed 12 July 2019.
139
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 34(1)–(6);
revised SADC 2017 Model BIT Annex 1(1): ‘In the event of an investment dispute between an investor or its
investment (referred to as an ‘‘Investor’’ for the purposes of the Investor-State dispute settlement provisions) and a
Host State pursuant to this Agreement, the Investor and the Host State should initially seek to resolve the dispute
through consultation and negotiation and mediation, in accordance with Article 32, applied mutatis mutandis to the
parties to the dispute.’
140
UNCTAD, ‘Interpretation of IIAs: What States Can Do’ (UNCTAD 2011) <https://unctad.org/en/Docs/
webdiaeia2011d10_en.pdf> accessed 12 July 2019.
141
2012 SADC Model BIT (n 105) art. 29.
142
2007 CCIA Agreement (n 136) art. 28(5)–(7).
143
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 8: ‘The
UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, as amended from time to time, shall
apply to any arbitration between an investor and State under this Agreement.’
144
Investment Promotion and Protection Agreement Between the Government of the Federal Republic of Nigeria
and the Government of the Republic of Singapore (signed 4 November 2016, not yet entered into force) art 19
<https://investmentpolicyhubold.unctad.org/IIA/country/190/treaty/3705> accessed 12 July 2019.
476 ICSID Review VOL. 34

African Union, Morocco, Tunisia, Nigeria, Somalia and the Democratic Republic
of the Congo’s input in the process of amending the ICSID rules testifies to this
effect.145
Yet, as previously discussed, most of the investment arbitration proceedings
involving African parties are seated outside the continent and are conducted by
non-African arbitral institutions. Accordingly, another trend in Africa’s contribu-

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tion to the reform of the ISDS has consisted in ‘Africanizing’ the investment
arbitration system so as to address the delocalization of African-related investment
arbitration proceedings. This trend has consisted of fostering African arbitral rules
and institutions and training African professionals to enhance the continent’s
attractiveness as a venue for the settlement of investor–State disputes. It is perhaps
best embodied by the recently adopted PAIC, which provides arbitration through
African arbitration institutions.146 Likewise, the revised version of the 2007 CCIA
Agreement offers the possibility for the disputing parties to submit their dispute to
an African international arbitration institution upon specific written agreement.147
Efforts have also been made by African States to modernize their arbitration
laws. In Mauritius, for instance, a new International Arbitration Act entered into
force in 2009 as part of the Government’s objective to ‘launch [the country] as an
international arbitration jurisdiction’.148 The country is also the first one to have
ratified the 2015 UN Convention on Transparency in Treaty-based Investor–State
Arbitration, an international instrument seeking to boost transparency in invest-
ment arbitration.149 At the regional level, the Organisation pour l’harmonisation en
Afrique du droit des affaires (OHADA) has recently revamped its Uniformed Act on
Arbitration to include provisions for investment arbitration reflecting best
international practices.150 It has also revised its Rules of Arbitration of the
Common Court of Justice and Arbitration (CCJA) to make the CCJA arbitration
centre more attractive.151 Interestingly, article 2.2.1 empowers the CJJA to
administer arbitral proceedings based on an investment code, or a bilateral or
multilateral investment treaty.152 This revision responds to several intra-African
BITs, which had already provided the investor with the option to choose the CCJA
to bring his claims against the host State.153 The CJJA does not itself settle the
dispute but appoints the arbitrators, is kept informed of the progress of the
proceedings and reviews the draft award.154
145
For a list of all submissions from ICSID member States as regard the proposed amendments to the ICSID rules,
see ICSID, ‘State input’ <https://icsid.worldbank.org/en/amendments/state-input> accessed 26 August 2019.
146
PAIC (n 116) art 42(d).
147
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 36(2)(i).
148
The Mauritian International Arbitration Act 2008 Text and Materials, Updated 2016 <https://pca-cpa.org/wp-
content/uploads/sites/6/2016/02/Mauritian-International-Arbitration-Legislation-Handbook.pdf> accessed 12 July
2019.
149
UNCITRAL, ‘Status: United Nations Convention on Transparency in Treaty-based Investor-State Arbitration
(New York, 2014)’ <https://uncitral.un.org/en/texts/arbitration/conventions/transparency/status> accessed 26 August
2019.
150
OHADA, Acte Uniforme Relatif au Droit de l’Arbitrage (signed 23 November 2017, entered into force 15 May
2018) art 3 <https://www.ohada.org/attachments/article/2290/Acte-Uniforme-relatif-au-droit-d-arbitrage-2017.pdf>
accessed 12 July 2019.
151
OHADA, Arbitration Rules of the Common Court of Justice and Arbitration (entered into force 15 March 2018)
<https://www.ohada.org/attachments/article/2490/Reglement-Arbitrage_CCJA-English.pdf> accessed 12 July 2019.
152
ibid art 2.2.1.
153
See, eg, Guinea–Chad BIT (signed 2004, not yet in force) art 9(3)(ii); Guinea–Burkina Faso BIT (signed March
2003, entered into force August 2004) art. 9(2)(b); Benin–Chad BIT (signed May 2001, not yet in force) art
10(2)(b).
154
OHADA, Arbitration Rules of the Common Court of Justice and Arbitration (n 151) art 2.2.2.
SPRING 2019 Africa’s Voice in International Investment Law 477

Additionally, new arbitral centres have arisen across the continent. Rwanda, for
instance, launched the Kigali International Arbitration Centre (KIAC) in 2012 as
part of its efforts to attract new investments. Among other responsibilities, the
KIAC provides arbitration services for both commercial and investment
disputes.155
It is not only African States and institutions that are concerned with the

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‘Africanization’ of investment arbitration. The African Society of International
Law (AfSIL), for instance, recently adopted the AfSIL Principles on International
Investment for Sustainable Development in Africa.156 Noteworthy is Principle 12,
which insists on the need for a greater involvement of African lawyers in the field
of international investment law.

(iii) Incorporating ISDS through regional judicial organs

A final way in which Africa has helped make a unique contribution to the reform
of ISDS lies in regional initiatives to incorporate ISDS through sub-regional
judicial organs. Two will be discussed: ISDS through the COMESA Court of
Justice (Subsection a)) and ISDS through the ECOWAS Court of Justice
(Subsection b)). The prospect for a Pan-African Regional Investment Court will
also be addressed (Subsection c)).

a) ISDS through the COMESA Court of Justice (COMESA Court)

The revised version of the 2007 CCIA Agreement is expected to incorporate ISDS
through the COMESA Court in line with the 2007 version and as part of a
broader objective to increase COMESA’s attractiveness as a destination for
FDI.157 The COMESA Court itself is the judicial organ of COMESA.158
Established in 1988, its main purpose is to ‘[ensure] the adherence to law in the
interpretation and application of [the] Treaty [Establishing the Common Market
for Eastern and Southern Africa]’.159
The draft of the 2007 CCIA Agreement’s revised version offers the COMESA
investor the possibility of submitting his unresolved dispute with a member State
either to the COMESA Court sitting as a court or to a tribunal constituted under
the COMESA Court in accordance with article 28(b) of the Treaty Establishing
the Common Market for Eastern and Southern Africa (COMESA Treaty).
However, several conditions must be met: the investor bringing a claim before the
COMESA Court must be an investor from another COMESA member State
fulfilling the criteria in article 1(4);160 resort to alternative dispute resolution

155
See <https://www.kiac.org.rw/> accessed 12 July 2019.
156
African Society of International Law, Principles on International Investment for Sustainable Development in Africa
(Accra, 29 October 2016) <http://afsil-sadi.org/site/The-Afsil-Declaration> accessed 18 February 2017. For a first
analysis, see Alicia Köppen and Jean d’Aspremont, ‘Global Reform vs Regional Emancipation: The Principles on
International Investment for Sustainable Development in Africa’ (2017) 6(2) ESIL Reflections <www.esil-sedi.eu/
node/1656> accessed 12 July 2019.
157
COMESA, ‘Investment Agreement for the CCIA: Legal tool for increasing investment flows within the
COMESA’ (2007) <http://www.comesa.int/investment/regimes/investment_area/Folder.2007-11- 06.4315/Multi-lan-
guage_content.2007-11-06.5437/en> accessed 12 July 2019.
158
For further information on the COMESA Court, see James Thuo Gathii, ‘The COMESA Court of Justice’ in
Robert Howse and others (eds), The Legitimacy of International Trade Courts and Tribunals (Cambridge University Press
2018) 314–42.
159
Treaty Establishing the Common Market of Eastern and Southern Africa (signed 8 December 1993, entered into
force 5 December 1994), 2314 UNTS 265, art 19 (1994 COMESA Treaty)
160
Draft of the revised Investment Agreement for the COMESA Common Investment Area (n 131) art 1(4).
478 ICSID Review VOL. 34

(ADR) mechanisms (eg, negotiations and mediation) must have failed;161 and the
claim must be brought to the COMESA Court within a three-year timeframe
following the date on which ‘the COMESA investor or its investment first
acquired, or should have first acquired, knowledge of the breach and knowledge
that the COMESA investor or its investment has incurred loss or damage’.162
Additionally, the consent of the COMESA member State is not required. In fact,

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pursuant to article 36(7), the COMESA contracting member State unilaterally
offers consent to arbitration under the CCIA Agreement.163
On whole, the revised version of the 2007 CCIA Agreement takes a holistic
approach to move away from the traditional ISDS mechanism such that the
provision on dispute settlement should be read together with other provisions
contained in the draft agreement. A telling example is article 1(12), which defines
the term ‘investment’ with sufficient clarity to limit the COMESA Court’s
interpretative powers.164
As part of a plea to enhance justice through arbitration, the COMESA Court
recently announced its intention to revise its 2003 Arbitration Rules so as to keep
pace with best practices in international arbitration. As reported by the Judge
President, Honourable Lady Justice Lombe Chibesakunda, this revision process
follows the COMESA Court’s ambition of achieving effective dispute resolution in
the COMESA region by equipping ‘[j]udges and Judicial Staff of the COMESA
Court with the skills to efficiently manage arbitral proceedings, from the initial
stage of appointment as dispute resolvers’.165

b) ISDS Through the Community Court of Justice of ECOWAS (ECCJ)

More uncertain, yet conceivable, is the possibility for the ECCJ to provide a forum
for the settlement of investor–State disputes within and outside ECOWAS.
Established in 1991 by the Protocol on the Community Court of Justice,166 the
ECCJ has the power to act as the Arbitration Tribunal of the Community.167
There are two potential avenues for the ECCJ to have jurisdiction over investor–
State disputes.
The first potential way by which ISDS may be incorporated through the ECCJ
is contained in the 2008 ECOWAS Supplementary Act. Article 33(7) of the Act
provides that an intra-ECOWAS dispute between a member State and an investor
is to be referred to the ECCJ should there be a disagreement as to the method of
dispute settlement to be adopted.168 As previously discussed in Subsection
III.A.(iii)b), a certain reading of the Act suggests that the ECCJ might extend its
jurisdiction to non-ECOWAS investors for expropriation claims as well as denial of
justice ones.169 However, it remains uncertain whether this view accurately
161
ibid arts 34 and 35(1).
162
ibid art 36(4).
163
ibid art 36(7).
164
art 1(12).
165
COMESA, ‘COMESA Court to revise its current arbitration rules’ (2017) <http://comesacourt.org/comesa-
court-to-revise-its-current-arbitration-rules/> accessed 12 July 2019.
166
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.
167
ECOWAS, Revised Treaty of the Economic Community of West African States (revised 24 July 1993) art 16.
168
Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for their
Implementation with ECOWAS (signed 19 December 2009, entered into force 19 January 2009) art 33(7).
169
Happold and Radović (n 95) 107.
SPRING 2019 Africa’s Voice in International Investment Law 479

portrays the scope of the ECCJ’s jurisdiction since no such claims have been
submitted to the ECCJ to this day.170
A second and more certain avenue is provided by the newly adopted ECOWIC.
Although not yet in force, the instrument explicitly offers ECOWAS investors the
possibility of resorting to the arbitration division of the ECCJ, among other
forums, to resolve a dispute with an ECOWAS member State when recourse is

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made to arbitration.171 The ECOWIC further encourages the disputing parties to
resort to regional and national alternative dispute settlement institutions.172

c) Towards a Pan-African Regional Investment Court?

The sub-regional approaches proposed by COMESA and ECOWAS to reform the
ISDS dispute settlement mechanism are yet to be replicated by the remaining
RECs. The SADC, for instance, has recently abandoned the idea of SADC
investors having recourse to international arbitration via the SADC tribunal
following the controversial Mike Campbell Ltd & others v Zimbabwe decision.173
The EAC, on the other hand, continues to favour investors’ access to international
arbitration in article 15(3) of its 2006 Model investment Code.174 This ‘spaghetti
bowl’ in the reform of ISDS at the RECs’ level is made worse by the fact that
African States often belong to more than one RECs175, thereby subscribing to
different ISDS regimes.
Instrumental to the harmonization of these initiatives is the future outcome of
the ongoing negotiations for the AfCFTA Investment Protocol. It is currently
unclear which investment dispute settlement system will be included in the
instrument. Similar to the revised version of the 2007 CCIA Agreement, the
ECOWIC and, to a certain extent, the ECOWAS Supplementary Act,
the AfCFTA Investment Protocol could incorporate ISDS arbitration through a
regional investment court.176 This proposal would resemble the mechanisms
currently incorporated in the Comprehensive Economic and Trade Agreement
(CETA) and the EU–Vietnam Free Trade Agreement or the recent proposal of the
European Commission for a Multilateral Investment Court (MIC).177 However,
the fact that ISDS arbitration through sub-regional courts is yet to materialize in
practice makes the successful prospect of an integrated regional investment court
at the continental level all the more uncertain. A more likely outcome is for the
AfCFTA Investment Protocol to subject ISDS to various conditions as was
previously discussed in Subsection III.B.(i), or to follow the model of the PAIC by
make investor–State dispute resolution possible only in African arbitration centres
or institutions as discussed in Subsection III.B.(ii).178
170
ibid 108.
171
ECOWIC (n 97) (on file with the author) art 54(2).
172
ibid.
173
Mike Campbell (Pvt) v Republic of Zimbabwe, SADCT 2 (28 November 2008) <http://www.saflii. org/sa/cases/
SADCT/2008/2.html> accessed 12 July 2019.
174
The East African Community Model Investment Code 2006 <https://www.tralac.org/documents/resources/eac/
1378-eac-model-investment-code-july-2006/file.html> accessed 12 July 2019.
175
UNECA, Investment Policies and Bilateral Investment Treaties in Africa: Implications for Regional Integration
(UNECA 2016) 28–33 <https://www.uneca.org/sites/default/files/PublicationFiles/eng_investment_landscaping_study.
pdf> accessed 12 July 2019.
176
See, for instance, Chrispas Nyombi, ‘A Case for a Regional Investment Court for Africa’ (2018) 43 NC J Intl L
66, 109.
177
European Commission, ‘Commissioner Malmström lays out EU plans for a multilateral investment court’
<http://trade.ec.europa.eu/doclib/press/index.cfm?id=1943> accessed 12 July 2019.
178
PAIC (n 116) art 41.2 (2016) (emphasis added).
480 ICSID Review VOL. 34

IV. CONCLUDING REMARKS

As the foregoing analysis suggests, the assertion that Africa historically occupied a
peripheral role in the development of the international investment law field is one
that must be nuanced. The fact that the majority of BITs concluded by African
countries followed the pre-drafted models of their capital-exporting partners

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should not lead one to conclude that the African continent was a mere consumer
of rules (or a rule taker) in the history of investment practice. Understated, yet
critical in that respect, is African States’ contribution to the substantive
development of international investment law through their partaking in the
creation of the ICSID system as well as through their involvement in ICSID
proceedings.
At the same time, it is undeniable that the current ‘legitimacy crisis’179 of
international investment law has served as a springboard for Africa’s more recent
and active involvement in shaping the field’s contours. As the international
investment law regime is under scrutiny, the continent is actively reclaiming the
narrative of its revision and development. By fostering their own approach to the
reform of international investment law aligned with their circumstances and needs,
African countries are effectively ‘africanizing’ the development of international
investment rules and the reform of the ISDS system.
This ‘baby boom’ in the formulation and shaping of new trends in investment
law throughout the continent should be welcomed. Still, several steps must be
taken before the African continent is to confirm its status as a ‘rule maker’ in the
field of international investment law. For one, African States must implement the
novel standards that they have adopted and ensure coherence within the multi-
layered network of investment regulation. In this respect, the ongoing negotiations
for a continental vision on investment regulation, as embodied by the AfCFTA
Investment Protocol, may play a pivotal role in overcoming issues of legal
uncertainty and fragmentation.
As African States remodel the contours of the international investment regime
according to their own needs and priorities, it is also important that they build on
the universal acquis. When opportune and cost effective, the continent should
utilize the tools that it readily has at its disposal. For instance, when negotiating
which ISDS mechanism should be included in AfCFTA Investment Protocol, AU
member States could take advantage of the services offered by ICSID by
envisioning the creation of an ICSID focal point on the continent.
Last but not least, concerns about the future of international investment law are
not limited to Africa. In most recent years, the reform of the field has been on the
agenda of several international institutions. In 2017, the United Nations
Commission on International Trade Law (UNCITRAL) Working Group III was
mandated to work on the possible reform of ISDS.180 In 2018, ICSID published
its proposals to amend the ICSID Convention arbitration and conciliation rules so
as to improve the ISDS process.181 It is therefore essential that African States go
179
Brower and Schill (n 2).
180
United Nations General Assembly, Report of the United Nations Commission on International Trade Law,
Fiftieth session (3–21 July 2017), UN Doc A/72/17.
181
ICSID Secretariat, ‘Proposals for Amendment of the ICSID Rules—Working Paper’ (2018) <https://icsid.
worldbank.org/en/Documents/Amendments_Vol_3_Complete_WP+Schedules.pdf> accessed 24 July 2019.
SPRING 2019 Africa’s Voice in International Investment Law 481

beyond the initiatives that have been bourgeoning on the continent and bring their
voice to these reform efforts on the international stage.
Unquestionably, overcoming these challenges constitutes the next phase of
Africa’s participation in the reform of the international investment law regime.

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