Paper presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021[1]

Introduction

In the recent past, African countries have found themselves more frequently before international arbitration tribunals for claims of violating their investment treaty obligations.[2] In some of these cases, African governments have been found liable and paid large awards or compensation to foreign investors; Egypt, Libya, Zimbabwe and Tanzania are among the countries recently confronted with exorbitant investor-state dispute claims.[3] Quite expectedly African countries have embarked on renegotiating and negotiating new treaty arrangements to address these amongst other challenges.  

This paper will focus on ISDS in emerging treaties in the Eastern Africa region. Despite the controversies surrounding the legitimacy of the ISDS system and rethinking its continuity, recent BITs in the Eastern Africa Region have maintained it albeit with modifications. Some of the more recent BITs signed by Eastern Africa States, and the AfCFTA, will be examined. 

1. The 2017 Triad - Natural Wealth and Resources Laws, 2017– Tanzania

With the promulgation into law of the triad, the Natural Wealth Resources (Review and Renegotiation of Unconscionable Terms) Act, 2017, the Natural Wealth and Resources (Permanent Sovereignty) Act, 2017 and the Written Laws (Miscellaneous Amendments) Act, 2017 amending the Mining Act, 2010, Tanzania unequivocally expressed a legislative departure from the ISDS framework and a preference for domestic remedies.[4] The Act reserves the adjudication of disputes to the national state legal systems i.e., the courts and other statutory authorities.

Despite these changes the 12 odd BITs that were in force before the triad laws remain enforceable unless renegotiated under those new provisions. Most of the existing BITs provide a two-tier mechanism for consultations and negotiations with a waiting period of six months before resort to either domestic courts or international arbitration. The latest China-TZ BIT[5] of 2013 follows this cafeteria approach including resort to either the domestic Courts, ICSID, UNCITRAL or other arbitral institutions.  

The robust shift in policy may be indicative of the unease often expressed by developing countries on the unequal balance of power in the 1st generation BITs. Will this be the antidote that tilts the balance to attain an acceptable equilibrium? It will be interesting to watch how these changes will shape the future of dispute resolution as pertains to Tanzania and whether other countries in the region will adopt this approach.  

2.Agreement between the Federative Republic of Brazil and the Federal Democratic Republic of Ethiopia on Investment Cooperation and Facilitation (2018)[6]

The agreement makes provision for state-to-state dispute settlement and appears to have no ISDS clause providing for direct investor-state claims.

The provisions provide that, if a Contracting Party considers that a specific measure adopted by the other Contracting Party constitutes a breach of Agreement, it shall submit a written request to the other Contracting Party, identifying the specific measure in question, and presenting the relevant allegations of fact and law and the Joint Committee shall meet within sixty (60) days from the date of the request[7] and prepare a report sixty (60) days from the date of the first meeting, extendable by mutual agreement. .[8]

In the event that the dispute is not resolved within the time frame set forth, or there is non-participation of a Contracting Party in the meetings of the Joint Committee convened, the dispute may be submitted to arbitration by a Contracting Party.[9] If the measure in question pertains to a specific investor: the initial submission shall identify the affected investor; representatives of the affected investor may be invited to appear before the Joint Committee; and a Contracting Party may refuse to discuss in the Dispute Prevention Procedure a question concerning an investment of a national of that Contracting Party in the territory of that Contracting Party.

Once the above procedures have been exhausted and the dispute has not been resolved, either Contracting Party may submit the dispute to an ad hoc Arbitral Tribunal or alternatively, the Contracting Parties may choose, by mutual agreement, to submit the dispute to a permanent arbitration institution for settlement of investment disputes.[10]

An Arbitral Tribunal shall consist of three arbitrators. Each Contracting Party shall appoint, within three (3) months after receiving the "notice of arbitration", a member of the Arbitral Tribunal. Within three (3) months of the appointment of the second arbitrator, the two members shall appoint a national of a third State with which both Contracting Parties maintain diplomatic relations, who, upon approval by both Contracting Parties, shall be appointed chairperson of the Arbitral Tribunal. The appointment of the Chairperson must be approved by both Contracting Parties within one (1) month from the date of his/her nomination. The decision of the Arbitral Tribunal is final and binding to the Contracting Parties.[11] 

3. Agreement between the Government of the Republic of Singapore and the Government of the Republic of Rwanda on the Promotion and Protection of Investments (2018)[12]

In case of a dispute between a party and an investor of the other party, parties are to seek to resolve the dispute by consultations and negotiations[13].Where the dispute cannot be resolved within 6 months from the date of a written request for consultations and negotiations, then, unless the disputing parties agree otherwise, the disputing investor may submit the dispute to arbitration.[14]Arbitration can be conducted:

(a) under the ICSID Convention and the ICSID Arbitration Rules, provided that both the respondent Party and the Party of the disputing investor are parties to the ICSID Convention.

(b) under the ICSID Additional Facility Rules, provided that either the respondent Party or the Party of the disputing investor is a party to the ICSID Convention.

(c) under the UNCITRAL Arbitration Rules; or

(d) to any other arbitral institutions or under any other arbitration rules, if the disputing parties so agree.[15]

Any dispute submitted to arbitration must take place within 3 years of the time at which the disputing investor became aware, or should reasonably have become aware, of the breach.[16]

Unless agreed otherwise, the arbitral tribunal shall be composed of three arbitrators, who shall not be nationals or permanent residents of either Party, each disputing party is to appoint one arbitrator and the disputing parties shall agree upon a third arbitrator, who shall be the chairman of the arbitral tribunal.[17] If an arbitral tribunal has not been established within 90 days from the date of claim submission to arbitration, the Secretary-General of ICSID, upon request of either disputing party, shall appoint, at his own discretion, the arbitrator or arbitrators not yet appointed.[18] If the Secretary-General is a national or permanent resident of either Party, or he or she is otherwise unable to act, the Deputy Secretary-General, who is not a national or permanent resident of either Party, may be invited to make the necessary appointments.[19]

Any arbitral award by the tribunal is final and binding upon the disputing parties.[20] A tribunal is required, before issuing a decision or award on liability to transmit its proposed decision or award to the disputing parties; the parties may then within 60 days submit written comments to the tribunal concerning any aspect of the proposed decision or award.[21] The tribunal shall consider any such comments and issue its decision or award not later than 45 days after the expiration of the 60-day comment period.[22] 

4.    Agreement between the Government of the Republic of Turkey and the Government of the Republic of Burundi Concerning the Reciprocal Promotion and Protection of Investments (2017)[23]

When it comes to ISDS, the agreement applies to disputes between one Contracting Party and an investor of the other Contracting Party concerning an alleged breach of an obligation of the former, which causes loss or damage to the investor or its investments.[24] In case of a dispute, a party should be notified in writing and the parties should endeavor to settle these disputes by consultations and negotiations in good faith.[25] If these disputes, cannot be settled in this way within six (6) months following the date of the written notification, the disputes can be submitted, as the investor may choose, to:

(a)   the competent court of the Contracting Party in whose territory the investment has been made or;

(b)   ICSID or;

(c)   an ad hoc arbitral tribunal established under the UNCITRAL Arbitration Rules; or

(d)   any other arbitration institution or any other arbitration rules if the disputing parties so agree.[26]

In deciding whether an investment dispute is within the jurisdiction of ICSID and competence of the tribunal, the arbitral tribunal shall comply with the notification submitted by the Republic of Turkey on March 3, 1989 to ICSID in accordance with Article 25 (4) of ICSID Convention, concerning classes of disputes considered suitable or unsuitable for submission to the jurisdiction of ICSID, as an integral part of the Agreement.[27] The arbitral tribunal shall take its decisions in accordance with the provisions of the Agreement, the laws and regulations of the Contracting Party involved in the dispute on which territory the investment is made, and the relevant principles of international law as accepted by both Contracting Parties.[28] The arbitration awards shall be final and binding for all parties in dispute.[29]

5.  Proposed Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland (Kenya - UK EPA) (2020)[30] (Ongoing for formal Ratification)

The effective Kenya-UK BIT has been and continues to be in force since 1999 with an existing ISDS mechanism -typical of the 1990s BITs with an exclusive and automatic recourse to arbitration after three months of failure of local remedies or other means to resolve a dispute.

However, it is worthy of note to comment on the Kenya-UK EPA covering trade in goods etc. Although it is not typically an investment protocol but rather a trade agreement it is significant that some of its features may illuminate recent thinking. As a post-Brexit measure the negotiations for the Kenya-UK EPA begun in August 2020 based on the EAC-EU EPA text.[31] Of relevance here is the State-to-State dispute avoidance and settlement mechanism which proposes a tiered framework for dispute resolution through alternative means of consultation, with a fork in the road option for mediation, or arbitration. The EPA was eventually approved by the respective Parliament of Kenya[32] on 9th March 2021 and UK now awaiting formal ratification and depository procedures anticipated to take place in March 2021.

Although these provisions are typical of this kind of agreement it might be interesting to see whether some of the thinking behind adoption of an elaborate alternative dispute resolution framework and arbitration may translate to future BIT contexts with focus on investments. The dispute avoidance and settlement provide for the following mechanism:

i)             Consultation

In case of a dispute, parties are to enter consultations.[33] A Party seeks consultations by means of a written request to the other Party, copied to the Committee of Senior Officials, identifying the measure at issue and the provisions of the Agreement that it considers the measure not to be in conformity with.[34] 

Ideally, consultations are to take place, in the territory of the Party complained against (unless agreed otherwise) and are to be held within twenty (20) days of the date of the receipt of the request and shall be deemed concluded within sixty (60) days of the date of the receipt of the request of the Party complained against, unless the Parties agree to continue consultations.[35] All information disclosed during the consultations shall remain confidential.[36] Consultations on matters of urgency, including those regarding perishable or seasonal goods shall be held as soon as is practically possible and in any event within fifteen (15) days of the date of the receipt of the request, and shall be deemed concluded within thirty (30) days of the date of the receipt of the request, unless the Parties agree to continue consultations.[37]

ii)           Mediation

If consultation fails, parties may by agreement seek recourse through mediation.[38] Where parties are unable to agree on a mediator within fifteen (15) days of the date of the agreement to request mediation, the Chairperson of the Committee of Senior Officials[39], or his or her delegate, shall select by lot a mediator from the pool of individuals who are on the list referred to in Article 125 and are not nationals of either Party[40]  within twenty-five (25) days of the date of the submission of agreement to request mediation and in the presence of a representative of each Party.[41] The mediator will convene a meeting with the Parties no later than thirty (30) days after being selected.[42] The mediator shall receive the submissions of each Party no later than fifteen (15) days before the meeting and notify a non-binding opinion no later than forty-five (45) days after having been selected.[43] The mediation proceedings are to remain confidential.[44]

iii)          Arbitration

However, there is a fork in the road situation presenting between consultation and the choice of either mediation or arbitration. Should parties not wish to go through mediation, they can move to arbitration after consultation.[45] Where consultation and/or mediation failed to resolve the dispute, the complaining Party may give notice to initiate the procedure for the establishment of an arbitration panel,[46]the notice for establishment of an arbitration panel is to be made in writing to the Party complained against and to the Committee of Senior Officials.[47]

An arbitration panel is to be composed of three arbitrators.[48] Within ten (10) days of the date of the submission of the notice for the establishment of an arbitration panel to the Committee of Senior Officials, the Parties shall consult in order to reach an agreement on the composition of the arbitration panel.[49] In the event that the Parties are unable to agree on the composition of the arbitration panel within the timeframe stipulated, each Party will select an arbitrator from the list of arbitrators established under Article 125[50] within five (5) days.[51] If any of the Parties fails to appoint its arbitrator, upon request of the other Party, the arbitrator shall be selected by lot by the Chairperson of the Committee of Senior Officials, or the Chairperson's delegate from the sub-list of that Party established under Article 125.[52]

According to Article 115(1)(a) of the Kenya – UK BIT, the arbitration panel is required to notify its ruling to the Parties and to the Committee of Senior Officials within one hundred and twenty (120) days from the date of its establishment. However, even if a delay is occasioned, under no circumstances shall the ruling be notified later than one hundred and fifty (150) days from the date of its establishment.[53]

The arbitration panel is supposed to make every effort to ensure that any decision is by consensus, where a decision cannot be adopted by consensus, the matter at issue shall be decided by majority vote.[54] The arbitration panel ruling is final and binding on Parties.[55]

6. The proposed Kenya - USA Free Trade Agreement Kenya-US (Negotiations Ongoing)

On 6th February 2020, US Former President Trump announced that the United States intends to initiate trade agreement negotiations with Kenya following a meeting at the White House with Kenyan President HE Uhuru Kenyatta.[56] The bilateral negotiations commenced on 7th July 2020.[57] In an attempt to determine how the dispute resolution clauses and ISDS provisions under the agreement may look like, some of the BIT provisions on dispute settlement and ISDS that USA is party to were considered.

Possible outlook of the Kenya-US BIT

From an analysis of the USA-BIT with Uruguay and Rwanda and the USMCA, there are several things we are most likely to see in the Kenya-USA BIT. They include:

(a)   ISDS and State - State dispute settlement - both Rwanda and Uruguay BIT with the USA have provisions for both ISDS and State-State dispute settlement.

(b)   Provisions that require disputes to be submitted to consultations and negotiations before the commencement of arbitral proceedings – both Rwanda and Uruguay have provisions requiring that disputes be submitted to consultations and negotiations before arbitration. There is a possibility for the same provisions to find their way to the Kenya-USA BIT.

(c)   Absence of mediation – in both BITs (Uruguay and Rwanda) there are no provisions for mediation. It is likely that the Kenya-USA BIT will also not have mediation provisions. However, the USMCA advocates for alternative methods of dispute resolution, such as good offices, conciliation, mediation, and arbitration, it is therefore possible that these mechanisms will find their way to the Kenya-USA BIT.

(d)   Consent to arbitration – By signing the BIT with USA, Uruguay and Rwanda consent to arbitration meaning there is no need to seek for consent to arbitration, once negotiations and consultations fail to bear fruits, the claimant can automatically submit the dispute for arbitration. However, USMCA seems to lie more on dispute resolution via a panel. It is interesting to see which form of dispute settlement will be preferred by the Kenya-USA BIT since the USA considers the USMCA as its 21st Century, high standard agreement.[58]

(e)   The claims are likely to be submitted:

(i)  under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the non-disputing Party are parties to the ICSID Convention.

(ii)  under the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention.

(iii)  under the UNCITRAL Arbitration Rules.

(iv)  if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.

(v)  Joint panel committee established between Kenya and the USA.

(f)Selection of arbitrators - it is likely that just like the two BITs a tribunal will consist of 3 arbitrators, each party will appoint one and they shall both appoint a chair to the tribunal.

(g)   Place of arbitration - it is likely that the disputing parties will be allowed to agree on the legal place of any arbitration If they fail to reach an agreement, the tribunal may be empowered to determine the place of arbitration.

(h)   Applicable law - the tribunal is likely to decide on issues in dispute in accordance with the BIT and applicable rules of international law. In USMCA, the panel is required to interpret the Agreement in accordance with customary rules of interpretation of public international law, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969.[59]

(i)Decisions of the arbitral tribunal - the decisions of the arbitral tribunal are likely to be final and binding to all parties.

7.     African Continental Free Trade Area (AfCFTA)

AfCFTA is a flagship project of Agenda 2063 of the African Union (AU). By December 3, 2020, thirty-six countries, including three East African Community (EAC) countries (Kenya, Rwanda, and Uganda) had ratified the AfCFTA and its trade operations were set to commence in January 2021.[60]

On 1st January 2021, African countries opened their markets under the AfCFTA based on the  Assembly decision made on 5 December 2020.[61]

      i.        AfCFTA and Dispute Settlement

According to Article 4(f) AfCFTA one of the objectives of the Agreement is to establish a mechanism for the settlement of disputes concerning the rights and obligations of State Parties. The AfCFTA Dispute Resolution Protocol stipulates a State-to-State dispute mechanism to resolve differences arising out of the AfCFTA.[62] The Agreement creates a continental dispute settlement body(DSB) which establishes the Protocol on Rules and Procedures on the Settlement of Disputes.[63]

The DSB is empowered to interpret and apply all AfCFTA legal instruments (Protocols, Annexes and Appendices) and determine state parties’ rights and obligations under those legal instruments. Pursuant to article 20 of the AfCFTA  and Article 3(1) of the Protocol on the Settlement of Disputes, the protocol will only: apply to disputes arising between State Parties concerning their rights and obligations under the provisions of the Agreement[64].

     ii.        AfCFTA and ISDS

The future of ISDS in the architecture of the AfCFTA is presently unclear. There is, however, a strong possibility that ISDS will be present in AfCFTA. First, most African countries appear to be in favor of ISDS. There is currently in existence at least 30[65] in-force intra-African BITs utilizing, an additional 120 intra-African BITs have been signed but not ratified not mention the existence of numerous ‘in force’ BITs between African States and third states that also provide for ISDS. Furthermore, more than half the Continent have also ratified the New York Convention.

Secondly, the presence of weak legal and regulatory frameworks existing in many member states is another compelling reason that may lead to the integration of the ISDS within the context of the AfCFTA. According to the World Justice Project (WJP) Rule of law Index 2019, where good governance, transparent, effective, and accountable institutions were concerned, African Nations ranked last. This could translate into a lack of investor confidence generally as member states need to be assured of a robust legal structure to facilitate the process of trading across borders. In fact, it was reported that more than half of the countries in Africa are found in the bottom quartile of the World Bank Group’s Doing Business 2019 rankings[66]. Given the weak regulatory environment, countries may see a need to use ISDS as it is a mechanism praised for its - predictability.

Thirdly, is the need for predictability. Predictability is one of the bedrock principles of the AfCFTA[67] Also, one of the specific objectives of the AfCFTA is to “establish a mechanism for the settlement of disputes concerning their rights and obligations”.[68] For this reason, ISDS is most likely going to find its way in AfCFTA.

However, there is still a possibility that ISDS may never find its way to AfCFTA. First, is the cost of ISDS claims. The amounts at stake in investment treaty arbitration are usually astronomical. The average claim in investor–state arbitrations based on BITs and other international investment agreements (IIAs) is about US$492 million[69] and multibillion-dollar claims are increasingly common. In ISDS claims, countries have real financial implications in terms of monetary awards, legal costs, and accrued interests to consider. For example, in Unión Fenosa Gas, S.A. v. Arab Republic of Egypt,[70] an award of over 2 billion US Dollars was made. In Process and Industrial Developments Ltd. v. The Ministry of Petroleum Resources of the Federal Republic of Nigeria,[71] Nigeria had to appeal a 9-billion award to Irish backed company over a failed gas deal.

Secondly, is the lack of consistency in the tribunal decisions of ISDS cases. Countries like Nigeria[72] and Egypt[73] have both suffered numerous inconsistent awards and these concerns are related to unjustifiably inconsistent interpretations of investment treaty provisions especially where it provides for principles afforded to foreign investors from the Most Favored Nation and National Treatment clauses. Limited devices available to address inconsistency and incorrectness of decisions has been exemplified by, for example,  the inadequacies of the ICSID annulment mechanism and domestic court procedures.

Thirdly, ISDS has been criticized for the lack of appropriate diversity amongst decision makers specifically where it pertains to gender and geographical diversity. Throughout the history of investment arbitration, African arbitrators have been underrepresented even in cases involving an African state. According to The ICSID Caseload – Statistics (Issue 2019 – 2),[74] although Sub-Saharan Africa contributes 15 percent of all ICSID cases by State Party involved, the region only accounts for 2 percent of arbitrators, conciliators and ad hoc Committee members appointed in ICSID cases.[75] By contrast, Western Europe contributes 8 percent of all ICSID cases by State Party involved but account for a staggering 48 percent of arbitrators, conciliators and ad hoc committee members appointed in ICSID cases. North America (Canada, Mexico, and U.S.) contributes 4 percent of all ICSID cases by State Party involved but account for 20 percent of arbitrators, conciliators and ad hoc committee members appointed in ICSID cases.[76]

Conclusion

Until recently, BITs have formed the key framework for ISDS, but gradually, East African countries are reviewing these treaties to make them fit for their modern purposes and address the challenges facing the nations. From the examples of the treaties discussed above, most provide for both ISDS and State-State dispute resolution. This allows investors to seek speedy resolution of their disputes and allows states to also have a say in how these treaties are being interpreted by arbitral tribunals and other forums to create consistency in interpretations of treaties. However, there is a need for more clarity as pertains to the application of the same. For example, can an investor seek the interpretation of a section of a treaty or must the same be done only by the State via State-State dispute settlement.

More scholarly research should be conducted to inform models that can be applied uniformly and shape state practice in negotiations for intra-regional and multilateral agreements involving States within the region. Some of the BITs examined above include exhaustion of local remedies, at least one has incorporated domestic courts and tribunals and a majority have resorted to arbitration after failure of other means. From the sample above of the more recent BITs in the region the generic trend is a preference for tiered ISDS framework with fork in the road clauses and the cafeteria style approach with on choice of arbitration institution/forum.

_______________________

*Registrar/CEO Nairobi Centre for International Arbitration

[1] This Paper has been prepared with research assistance of Ms. Victoria Kigen (Case Counsel-NCIA). LLB CUEA Univ. LLM Univ. of Miami.

[2] tralacBlog, “Investor-state dispute settlement in Africa and the AfCFTA Investment Protocol” <https://www.tralac.org/blog/article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html>  accessed on February 16, 2021.

[3] Ibid.

[4] https://www.madini.go.tz/wp-content/uploads/2017/12/Natural-Wealth-and-Resources-Permanent-Sovereignty-Act-2017.pdf Accessed 18th March 2021.

[5] https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/990/china---united-republic-of-tanzania-bit-2013- accessed on 17 Mar 2021. The Treaty was signed on 24th March 2013 and entered into force on 17th April 2014. 

[6] The agreement was signed on 11/04/2018 but has not yet been ratified.

[7] Article 23(2(a) of the Agreement between the Federative Republic of Brazil and the Federal Democratic Republic of Ethiopia on Investment Cooperation and Facilitation. Available at <https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5717/download> accessed on March 2, 2021.

[8] Article 23(2) (b)&(c) of the Agreement between the Federative Republic of Brazil and the Federal Democratic Republic of Ethiopia on Investment Cooperation and Facilitation.

[9] Article 23(2) (d) Id.

[10] Article 24(1) Id.

[11] Article 24(9) Id.

[12] The agreement was signed on 14/06/2018 but has not yet been ratified.

[13] Article 11(1Id.

[14] Article 11(2) Id.

[15] Id.

[16] Article 11(3)(a) of the Agreement between the Government of the Republic of Singapore and the Government of the Republic of Rwanda on the Promotion and Protection of Investments. 

[17] Article 12(1) Id.

[18] Id.

[19] Id.

[20] Article 16(2) Id.

[21] Article 16(4) Id.

[22] Id.

[23] The agreement was signed on 14/06/2017 but has not yet been ratified.

[24] Article 10(1) of the Agreement Available at <https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5838/download>  accessed on March 3, 2021.

[25] Article 10(2) of the Agreement.

[26] Article 10(3) Id.

[27] Article 10(5) Id.

[28] Article 10(6) Id.

[29] Article 10(7) Id.

[30] The agreement is in the process of ratification. It has been presented to the Parliament by the Secretary of State for Foreign, Commonwealth and Development Affairs by Command of Her Majesty December 2020. The UK Parliament voted in favour of the agreement in March 2021 while the Kenyan Parliament approved it on 9th March 2021.

[31] Ministry of Industrialization, Trade and Enterprise Development, “Memorandum to Parliament on Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland” < http://www.parliament.go.ke/sites/default/files/2021-01/ECONOMIC%20PARTNERSHIP%20AGREEMENT%20BTN%20UK%20%26%20KENYA%281%29.pdf> accessed on March 2, 2021.

[32] http://www.parliament.go.ke/sites/default/files/2021-03/Hansard%20Report%20-%20Tuesday%2C%209th%20March%202021%20%28E%29.pdf accessed 18th March 2021.

[33] Article 110(1) of the Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland. Available at <https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/6047/download> accessed on March 2, 2021.

[34] Article 110(2) of the Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland.

[35] Article 110(3) Id.

[36] Id.

[37] Article 110(4) Id.

[38] Article 111(1) Id.

[39] The Committee of Senior Officials is established under Article 106(1) and shall be composed of Permanent Secretaries or Principal Secretaries, as the case may be, from the EAC Partner State(s) and representatives from the UK at Senior Official level.

[40] Article 111(3) Id.

[41] See note 13.

[42] Id.

[43] Id.

[44] Id.

[45] Article 111(2) Id.

[46] Article 112(1) Id.

[47] Article 112(2) Id.

[48] Article 113(1) Id.

[49] Article 113(2) Id.

[50] Article 125 is on the list of arbitrators. The list shall contain at least 15 people who are willing to serve as arbitrators. The list shall be composed of three sub-lists: one sub-list for each Party to serve as arbitrators; and one sub-list of individuals that are not nationals of either Party and who shall act as Chairperson to the arbitration panel. Each sub-list shall include at least five (5) individuals.

[51] Article 113(3) Id.

[52] Article 113(3) Id.

[53] Id.

[54] Article 124(1) Id.

[55] Article 124(3) of the Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland.

[56] African Growth and Opportunity Act (AGOA), “The proposed Kenya - USA Free Trade Agreement” <https://agoa.info/bilaterals/kenyausa.html> accessed on March 3, 2021.

[57] Id.

[58] See, USMCA (trade.gov), accessed on March 3, 2021.

[59] Article 31.13.4 Id.

[60] Id.

[61] African Union, “African Business Council Applauds the Start of Trading on the Basis of the AfCFTA” <https://au.int/en/pressreleases/20210104/african-business-council-applauds-start-trading-basis-afcfta> accessed on March 2, 2021.

[62] 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#:~:text=The%20AfCFTA%20Dispute%20Resolution%20Protocol,to%20that%20of%20the%20WTO.> accessed on February 15, 2021.

[63] Part VI, Article 20 of the AfCFTA.

[64] Article 3 (1) of the AfCFTA.

[65]Maximizing investment protection in Africa: the role of investment treaties and investment arbitration, China Law insight blog, (July 2 2015) See: <https://www.lexology.com/library/detail.aspx?g=1e540917-3888-460f-9b0c-298c52ad864e> accessed on February 15, 2021.

[66] World Bank Group, Doing Business 2019, See: <https://www.doingbusiness.org/content/dam/doingBusiness/media/Annual-Reports/English/DB2019-report_web-version.pdf> Pg. 5 accessed February 15, 2021.

[67] Preamble of the AfCFTA Agreement.

[68] Article 4(f) of the AfCFTA Agreement.

[69] D Rosert, ‘The Stakes Are High: A review of the financial costs of investment treaty arbitration’ (July 2014) See: <https://www.iisd.org/sites/default/files/publications/stakes-are-high-review-financial-costs-investment-treaty-arbitration.pdf> accessed on February 15, 2021.

[70] Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/14/4.

[71] Process and Industrial Developments Limited (P&ID) v. Federal Republic of Nigeria [Ad Hoc Arbitration] See: <https://www.irishtimes.com/business/energy-and-resources/nigeria-to-appeal-9-billion-award-to-irish-backed-company-over-failed-gas-deal-1.3991155> accessed on February 15, 2021.

[72] Process and Industrial Developments Limited (P&ID) v. Federal Republic of Nigeria [Ad Hoc Arbitration].

[73] Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/14/4.

[74] ICSID, Caseload Statistics. (Issue 2019-2), <https://icsid.worldbank.org/sites/default/files/publications/Caseload%20Statistics/en/The%20ICSID%20Caseload%20Statistics%20%282019-2%20Edition%29%20ENG.pdf> accessed on February 15, 2021.

[75] Id.

[76] Id.