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Investment Arbitration within the OHADA Area: Where Do We Stand? by Dr Sylvie BEBOHI EBONGO*

11 May 2021 7:22 PM | Anonymous

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

ABSTRACT

In late 2017, the OHADA Council of Minister modified and revised the Uniform Act on Arbitration and CCJA Arbitration rules which are the two rules governing arbitration within the OHADA area. The substantive point of the reform was the insertion of investment arbitration provisions in these two instruments governing arbitration in the OHADA area; this insertion thus expanded the scope of OHADA. Henceforth an arbitration under an instrument regarding investment such as an investment code or a bilateral or multilateral treaty is in the most natural way possible within the OHADA area. 

The expansion of OHADA arbitration to investment arbitration constitutes therefore an undeniable innovation. However, this paper goes further and a bit “against the flow” will discuss the new OHADA approach toward investment arbitration, more specifically the impact of the reform to date in the OHADA landscape. 

INTRODUCTION 

On 23 and 24 November 2017, the OHADA Council of Minister modified and revised the two laws governing arbitration in the OHADA area: The Uniform Act on Arbitration[1] (UAA), and the CCJA Arbitration Rules. The new laws came into force on 15 March 2018. One of the substantive modifications of the OHADA reform on arbitration was the insertion of investment arbitration provisions in the UAA and the CCJA Arbitration Rules. Initially, OHADA Arbitration laws turned to commercial arbitration even though it had often dealt with disputes resulting from investment arbitration.[2] Following 2017’s revised provisions, the UAA and CCJA’s arbitration rules moved from commercial arbitration to expressly include investment arbitration.[3] By introducing these new provisions on investment, arbitration broadens the scope of OHADA arbitration. 

OHADA is a regional organization with Seventeen-member states.[4] These member states are also members of one of the two regional economic and monetary organizations: The Economic Community of Central African States (ECCAS) and the Economic Community of West African States (ECOWAS). Therefore, OHADA arbitration has a regional investment policy impact. 

The investment arbitration provisions were necessary due to the growing demand. For instance, the CCJA Arbitration Centre heard investor-State disputes based on an arbitration agreement in several instances, despite the absence of related investment provisions.[5] 

A lot has been said about the OHADA arbitration reform especially about the expansion of the scope of its application following the introduction of the investment arbitration provisions.[6] 

The aim of this paper is not to remake an in-depth presentation of the aforementioned provisions.  Without compromising the positive contribution of the reform in particular as regard the introduction of provisions dealing with investment, this paper a bit “against the flow” will discuss the new OHADA approach toward investment arbitration, more specifically the impact of the reform to date. Have the new investment arbitration provisions appeared as a real innovation within the OHADA member States' investment landscape? Has OHADA investment arbitration evolved since the revised UAA and CCJA arbitration rules came into force? Can innovation be evidenced in the OHADA investment landscape? 

This paper provides answers to the following questions.

I.       OHADA investment arbitration provisions: a real innovation for resolving investment disputes within the OHADA Member States?  

OHADA arbitration in itself has its roots in the OHADA Treaty. Hence, OHADA investment arbitration provisions must comply with the OHADA Treaty (A). Therefore, one can only expect the revised law to comply with the trend of investment arbitration laws (B). 

A.    The trend of the OHADA Treaty  

Both the UAA and the CCJA arbitration rules are based on the OHADA Treaty. As per the OHADA Treaty,[7] “Pursuant to an arbitration clause or submission agreement, any party to a contract may submit a contractual dispute to arbitration as provided for in this part, where one of the parties is domiciled or has his usual place of residence in the territory of a State Party, or where the contract is performed or will be performed wholly or partly in the territory of one or more States Parties…”

The UAA provides that “An arbitration may be based on an arbitration agreement or on an instrument regarding an investment, in particular an investment code or a bilateral or multilateral investment treaty” and the CCJA revised Arbitration rules provide that “The mandate of the Court shall be the administration, in accordance with these Rules, of arbitral proceedings when a contractual dispute, pursuant to an arbitration agreement, is referred to it by any party to a contract, either where one of the parties is a resident or has its usual place of residence in the territory of one or more of the Member States, or where the contract is performed or to be performed, in whole or in part, in the territory of one or more Member States. The Court may also administer arbitral proceedings based on an instrument related to an investment, in particular, an investment code or a bilateral or multilateral investment treaty”.

Article 21 of the OHADA Treaty seems to limit OHADA arbitration to disputes arising from a contract and states also that one of the parties must be domiciled or has his usual place of residence in the territory of a State or that the contract shall be performed wholly or partly in the territory of one or more State Parties. 

Thus, two conditions form the basis of OHADA Arbitration: A dispute arising from a contract and the domiciliation or place of residence in the territory of a Member State or the performance of the contract in one or more State parties.  

If one looks especially at article 2.1 of the CCJA Arbitration Rules[8], it is clear that the first part of article 21 of the OHADA Treaty has been maintained. However, unlike the first part of article 21, there is no indication in the second part of article 2.1 dealing with investment arbitration, particularly whether one of the parties to the investment disputes must be domiciled or has his usual place of residence in the territory of a state party, or whether the investment is to be performed wholly or partly in the territory of one or more States Parties. 

Besides, article 21 of the OHADA Treaty remains in its current wording, limited to disputes arising from a contract while articles 3 of the UAA and 2.1 of the CCJA arbitration rules open OHADA arbitration to disputes arising from an investment based on an international investment instrument such as an investment code or a bilateral or multilateral investment treaty.[9] 

The new provisions in the UAA and the CCJA Arbitration rules disconnect with the OHADA Treaty as it fails to consider the state or the residence of the parties or the place of performance of the investment[10]. Once the international instrument has designed CCJA as the forum where the dispute must be settled, the CCJA has jurisdiction regardless the state, place of residence of the Parties or the performance of the investment within the OHADA area. Thus, the current wording does not comply with the current requirements of OHADA arbitration and has to be clarified or completed. 

Discussing compliance between the new OHADA provisions on investment arbitration, some authors have argued that the actual reform of OHADA arbitration will be achieved with the OHADA Treaty reform.[11]

Even if the practitioners, especially arbitral tribunal who will be dealing with these provisions as they are written will have to interpret them broadly, in favour of disputes relating to investment arising from international investment instruments in the OHADA area, there should be a rationale to revise the OHADA Treaty to expressly include investment arbitration. There is also a rationale to review the OHADA arbitration provisions on investment that have been added so that the conditions relating to domiciliation and performance of the investment in one of the many OHADA States appear clearly. 

In any event, some adjustments are still needed to complete the OHADA reform on arbitration. 

The same remark applies when one looks at investment requirements that should underlie legislation dealing with investment arbitration. 

B.    The trend of the investment arbitration requirements and its policy 

The development noted in OHADA arbitration legislation concerning investment arbitration has been marked by an "inclusion" policy. In other words, despite the substantive changesets observed, the OHADA legislator has chosen not to disrupt the structure of the texts as they existed. This choice was justified by the desire not to disturb the practitioners who were already familiar with the existing system of the OHADA arbitration texts. 

If this choice not to encumber the existing texts is not in itself subject to criticism, since substantive modifications can be emphasized,[12] the legislator left out some essential requirements, especially dealing with investment arbitration. In other words, they are few added considerations regarding investment arbitration in the OHADA provisions related to investment arbitrations.  

One of the requirements of investment arbitration is Transparency. As a matter of fact, investment disputes imply States or one of its entities and therefore public interest such as protection of public health or environment is a concern. Thus, Transparency in investment arbitration implies access of the general public and interest groups such as various non-governmental organizations to the final awards and proceedings[13] and information resulting from those proceedings.

The need for Transparency in investment arbitration mushroomed through the participation of amicus curiae in arbitral proceedings. Amicus curiae's involvement in investment arbitration responds to continuing public pressure and criticism of the ISDS system. Allowing third parties such as NGOs and civil society groups to intervene in arbitral proceedings contributes to the ISDS system.[14] 

One of the questions raised when looking at the OHADA arbitration texts as revised is whether amicus curiae intervention can be allowed in case of investment disputes involving an OHADA State Party against an investor. Neither the UAA, nor the CCJA rules have considered that extremely topical subject. Article 8-2 of the CCJA's arbitration rules on voluntary intervention is the solution because it is written in general terms[15]and can be used to allow intervention of third parties, but this intervention is submitted to publicity of the proceedings and the consent of the parties.[16] However, it appears that the principle within OHADA arbitration is still confidentiality of the proceedings.[17] Access to information and documents related to an arbitration proceeding under the OHADA arbitration rules is subject to the consent of all the parties and to their will to publicize their dispute. [18] 

Upstream the trend in investment arbitration, the OHADA rules have not taken directly into account the requirement of Transparency in investment while: 

  • The new OHADA legislation on arbitration has been enacted after the adoption and entry into force of the Mauritius Convention on Transparency ; [19] Some OHADA State Members have signed and ratified the Convention.[20] Thus, Article 3 of the said convention Rules of Transparency apply to their BITs; 
  • BITs signed between some OHADA member States and Canada expressly referred to the application of UNCITRAL arbitration rules.[21] Since these BITs have been concluded after 1st April 2014, UNCITRAL Rules on Transparency applied to them. OHADA member States are open to the application of UNCITRAL rules on Transparency. Therefore, with the expansion of the scope of application of OHADA arbitration rules to investment arbitration, it is necessary to align with UNCITRAL rules on Transparency to avoid any doubt in the application of provisions relating to Transparency on investment arbitration proceedings within the OHADA area;[22]
  • Many other arbitration institutions have adopted rules on Transparency. See, for example, The Investment Arbitration Rules of the Singapore International Arbitration Centre (SIAC IA),[23] the China International Economic and Trade Arbitration Commission (CIETAC) “Arbitration Rules on investment disputes” [24] or more recently in 2019, the ICC who provided new rules on Transparency foreseeing the possibility for the arbitral tribunal, after consulting of the parties, to adopt measures to allow oral or written submissions by amici curiae and non-disputing parties.[25] These ICC rules on Transparency have been confirmed in the 2021 note to parties and arbitral tribunal on the conduct of the arbitration under the ICC rules of arbitration.[26] 

The structure of OHADA texts on arbitration is still primarily designed for commercial arbitration than investment arbitration, despite expanding the scope of application to investment arbitration. An authoritative doctrine has raised some critical issues revealing a nature inclined towards commercial arbitration.[27] However, these criticisms do not intend to undermine the significant step taken by the OHADA legislator in expanding OHADA arbitration to investment arbitration. They are seeking to improve the existing texts. 

Since the name of the legislation has not changed and can lead to confusion, the solution could be to develop a separate corpus of rules mainly dedicated to investment arbitration within the OHADA area.[28] Such a separation will have the advantage of clarity. 

Broadly, one might have expected the OHADA reform on investment arbitration with a firm policy towards investment in the OHADA Member States, especially because the OHADA reform on arbitration coincides with the discussion about the ISDS reform at UNCITRAL, which started in late 2017.[29]  

There has been an increase in attendance of African states between the first session in late 2017 and the last in-person session in January 2020°. It is also true that an Africa intersession commission has been put in place to discuss the ISDS reform from an African perspective.[30] This African intersession Commission comprises some OHADA Members states, the African Legal Support Facility, Francophonie and other NGOs; nevertheless, there is no precise position arising from these meetings on the policy these countries want to implement for their investment laws and international investment instruments at a regional level, for instance.

It is unfortunate that within the OHADA area, there are still isolated positions on such a sensitive topic. Some OHADA Member States have expressed their standpoint towards the ISDS ongoing reform at UNCITRAL, Burkina Faso in 2020[31] and Mali in 2019[32]. A single voice carried by the whole Organisation on behalf of all the Member States could have been more constructive. What is the position of OHADA Members states towards ISDS? Would the OHADA Member States want to terminate the existing BITs and renegotiate them? On what criteria? 

The OHADA Organisation has not seized the opportunity to express its opinion on how its perceived investment policies should be. 

II.             OHADA investment arbitration provisions: a real influence on investment policies of OHADA Member States? 

For consistency, this section should also lead the reader to two considerations related to changesets observed in primary texts referring to investment within the OHADA area, if any (A) and in newly BITs concluded by OHADA Member States after the reform (B). 

A.    An influence on primary texts referring to investment within the OHADA Area? 

As stated in the introduction, OHADA Member states are also members of the Economic Community of Central African States (ECCAS) and the Economic Community of West African States (ECOWAS). Some instruments of these regional organizations are aimed at investment regulation. Albeit non-exhaustive, this includes the CEMAC Common Convention on Investments in the States of the Customs and Economic Union of Central Africa, the CEMAC charter of Investments or the Economic Community of the West African States Supplementary Act.[33] 

Part V of the CEMAC Common Convention on investments in the States of the Customs and Economic Union of Central Africa is dedicated to the settlement of disputes with chapter III dealing with arbitration. 

The preamble of the Charter of investment of CEMAC states that Member States adhere to international main mechanisms guaranteeing investments including those relating to international arbitral courts proceedings and to the recognition and enforcement of arbitral awards. Article 4 paragraph 2 of the said investment Charter stipulates that all Member States of CEMAC adhere to the OHADA Treaty and article 5 paragraph 2 states that CEMAC Member States encourage recourse to arbitration and ensure the enforcement of arbitral awards. 

The ECOWAS Supplementary Act was signed in 2008 and entered into force in 2009 to harmonize national laws and create a single Community investment Code. It provides for ISDS but only through arbitration at national courts or national investment arbitration centres.[34]

One might observe that the OHADA arbitration reform did not lead, at least for now, to modification on the primary texts referring to investments within the OHADA area, although some of them are obsolete[35].

The Charter of investment of CEMAC already encourages arbitration; however, with the expansion of OHADA arbitration scope, an express reference can be directly made to OHADA arbitration under the UAA or CCJA arbitration rules.

There is a need to reform or adapt these existing legislations with the investment policy the OHADA Member States would like to implement, which have been reflected in opening OHADA arbitration expressly to disputes arising from investments.

The idea behind this is that the existing primary texts within ECCAS and ECOWAS must encourage OHADA arbitration. This remark also applies to BITs concluded by OHADA Member States. 

B.    An influence in  newly concluded BITs by OHADA Member States after the reform?

Most of the OHADA States, if not all, are host countries for investments. They are, therefore, signatories of many BITs aimed to protect foreign investors. To date, OHADA Member States have signed about 220 BITs with developed countries and other African countries .[36] 

A handful of OHADA countries have signed new BITs after enacting new OHADA texts on arbitration that expand the scope of OHADA arbitration to investment disputes. These BITs include; Burkina -Faso – Turkey BIT[37], Congo- Morocco BIT 2018[38], Côte d’Ivoire-Japan BIT 2020[39], or Mali -UAE and Mali-Turkey BIT 2018.[40] 

BITs give foreign investors the possibility of choosing from many arbitration options, the one the investor would like to sue the host state. In a large majority of BIT’s signed by OHADA member States, there is an option for international arbitration institutions such as ICSID, UNCITRAL or ICC.[41] Some references to OHADA arbitration exist but are still not systematic.[42] 

It has been noted for example in BITs signed in 2014 by some OHADA Member States and CANADA for example, that only ICSID and UNCITRAL are mentioned as possible arbitration institutions before which an investor can sue the host state.[43] 

The situation is not fundamentally different in the new BITs signed after the OHADA arbitration reform. Most of these BITs provide for ICSID, UNCITRAL or ICC arbitration.[44] This is the case even in BITs signed between an OHADA Member State and another African country.[45]

One of the exciting BITs of this series is the Burkina Faso – Turkey BIT signed in 2019, which provides an option for one arbitral institution within the OHADA area, the Ouagadougou Arbitration, Mediation and Conciliation Centre (CAMCO).[46] An interesting trend observed in that BIT and some others like the Côte d'Ivoire – Japan BIT is the parties' possibility to submit their dispute to "any other arbitral institution or arbitration rule".[47] Hence, one might expect that parties agree to submit their disputes to CCJA arbitration rules or an ad hoc arbitration under the UAA. 

OHADA governments must show interest in their arbitration system by including OHADA arbitration as a possible forum of settlement of disputes between one Contracting Party and the investors of other contracting parties in the framework of the BITs they signed. This has to be the case, mainly when investment is performed in one OHADA country. To this effect, an author stated: “The credibility of an arbitration center is measured by the confidence it inspires in those who created it, manifested by its designation in arbitration clauses, national and international provisions”.[48] 

CONCLUSION 

The inclusion of investment arbitration in the UAA and the CCJA Arbitration Rules is an innovation in the OHADA investment dispute resolution landscape. However this inclusion has to date a limited impact deemed unachieved. Furthermore, these investment provisions need to comply with the OHADA Treaty and include investment requirements in the law. As of now, the expansion of OHADA arbitration to investment arbitration has no real impact on the investment framework. It's relevant to note that BITs concluded after the OHADA arbitration contain few references to OHADA arbitration.

Furthermore, the investment arbitration policy within the OHADA Member States is not consistent. Do these States intend to terminate the former BITs and negotiate new ones on a more protective basis? Or do they continue to impose the provisions of investment agreements they signed? The OHADA organization is silent on the ISDS reform initiated by UNCITRAL, reform currently at its ends. 

The criticisms addressed above do not mean that the OHADA system of arbitration is not ready for investment arbitration. A strong foundation has been built before it, as it was possible to settle investment disputes within the OHADA arbitration framework. The current structure has to be completed, or rather, it would be better to have legislation dedicated especially to investment arbitration to avoid confusion or room for numerous interpretations. 

Practitioners appointed or chosen as arbitrators should use the current texts and interpret them to ensure adherence to investment requirements. Parties also have a significant role to play. 

It is also up to the Courts and CCJA to adopt an extensive favour arbitri interpretation of the current provisions when dealing with investment arbitration. Some OHADA Member States have signed the Mauritius Convention on Transparency and its application cannot be contrary to the public order in these countries if there is a need to apply provisions on transparency. 

OHADA member states government shall continue improving their investment arbitration mechanisms and trust them.

____________________________

*Research Officer APAA, Co-founder & Partner HBE AVOCATS 

[1] The First OHADA arbitration texts were adopted in 1999.

[2] Prior to the OHADA reform on arbitration, the CCJA was often used as an investment arbitration tribunal. Some BITs for instance have referenced the CCJA as a possible arbitration institution in case a dispute arises.

[3] Art.3 UAA, Art 2.1 CCJA Arbitration rules.

[4] BENIN, BURKINA FASO, CAMEROON, CENTRAL AFRICAN REPUBLIC, CHAD, COMOROS, CONGO, DEMOCRATIC REPUBLIC OF CONGO, EQUATORIAL GUINEA, GABON, GUINEA, GUINEA – BISSAU, IVORY COAST, MALI, NIGER, SENEGAL, TOGO.

[5] M.Kebe, « The attractiveness of the new OHADA arbitration Act”, https://www.lexology.com/library/detail.aspx?g=680f77e3-1b8c-4327-87c1-183a7abc45f4

[6] See for example, T. Kendra, OHADA Arbitration: Reforms adopted to keep the system modern, https://www.lexology.com/library/detail.aspx?g=c0f818a3-0aa7-4d0b-9a34-afea60ee8b00

R. Ziade, C. Fouchard, 30 march 2018, New OHADA Arbitration Text Enters into Force, http://arbitrationblog.kluwerarbitration.com/2018/03/30/new-ohada-arbitration-text-enters-into-force/

L. Franc-Menget, M.Papadhopulli , OHADA Arbitration Reform – Publication of the New Uniform Act Arbitration and the Revised CCJA Arbitration Rules, https://hsfnotes.com/arbitration/2017/12/22/ohada-arbitration-reform-publication-of-the-new-uniform-act-on-arbitration-and-the-revised-ccja-arbitration-rules/
 F. Bernauer,  V. Bénézech, G. Mezache The reform of OHADA's arbitration: a promise of greater efficiency?, https://iclg.com/alb/8370-the-reform-of-ohadas-arbitration-a-promise-of-greater-efficiency
P. Mabiala, Reforms to OHADA Arbitration Law, 2 November 2018, https://thearbitrationbrief.com/2018/11/02/reforms-to-ohada-arbitration-law/
G. Kenfack Douajni “Recent Developments in OHADA Arbitration, 11 April 2019 https://globalarbitrationreview.com/review/the-middle-eastern-and-african-arbitration-review/2019/article/recent-developments-in-ohada-arbitration.

M. Kebe, Geni & Kebe SCP , The attractiveness of the new OHADA Arbitration Act, https://www.lexology.com/library/detail.aspx?g=680f77e3-1b8c-4327-87c1-183a7abc45f4

[7] Art 21 OHADA Treaty

[8] CCJA Arbitration is directly based on article 21 of the OHADA Treaty.

[9] For more development on the compliance between the compliance between new OHADA arbitration provisions on investment and OHADA Treaty see for example, W. Ben Hamida “L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA ”in A. Ngwanza (ed), Vingt ans d’arbitrage OHADA: bilan et perspectives, LexisNexis, 2019, pages  285-301, sp. 292- 293.

[10] W. Ben Hamida “L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA ”, op.cit, p. 295.

[11] See for example, G. Kenfack Douajni, in “Le nouveau droit de l’arbitrage OHADA”, Rev. Camerounaise Arb, special volume, May 2018, p.59

[12] OHADA arbitration reform is aimed at more efficiency and transparency of arbitral proceedings. See for e.g Parties’s duty of loyalty and efficiency, arts 14 UAA, 16 CCJA arbitration rules, duty of impartiality and independence, prompt recognition of Arbitral awards art. 31 UAA, 30 CCJA Arbitration rules. For a summary on efficiency and transparency of the OHADA reform on arbitration R. Ziade, C. Fouchard, 30 march 2018, New OHADA Arbitration Text Enters into Force, http://arbitrationblog.kluwerarbitration.com/2018/03/30/new-ohada-arbitration-text-enters-into-force/.

[13] O. Svoboda, “Current state of Transparency in investment arbitration: progress made but not enough”, Cofola international 2017, Conference proceedings, p. 26; A. Kouyate “ La transparence dans l’arbitrage CCJA”, in A. Ngwanza (ed), Vingt ans d’arbitrage OHADA: bilan et perspectives, LexisNexis, 2019, pages  303-321, sp.314.

[14] L.Y. Fortier  and R. Thériault “La transparence de l’arbitrage  international à l’ère des différends États-investisseurs : du mythe à la réalité”, in mélanges en l’honneur de Alain Prujiner, Ed. Yvon Blais, 2011, p.67, sp.p.98.

[15] Art. 8-2 “No voluntary intervention shall be admissible before the constitution of the arbitral tribunal.

After the constitution of the arbitral tribunal, any voluntary intervention to an arbitral proceedings shall be subject to approval by the parties and the arbitral tribunal”.

[16] W. Ben Hamida “L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA ”, op.cit. p. 298-299.

[17] Art. 14 CCJA Arbitration Rules : “Arbitral proceedings shall be confidential. The work of the Court relating to conduct of arbitral proceedings shall be subject to this rule of confidentiality, as well as any meeting of the Court held for the purpose of administering the arbitration. Confidentiality shall also apply to documents submitted to the latter or drafted by it in the course of the administered proceedings.

Unless otherwise agreed by all parties, the latter and their counsel, the arbitrators, the experts and any person involved in arbitral proceedings shall be bound by the duty to respect the confidentiality of the information and of the documents produced during the said proceedings. Confidentiality shall extend under the same conditions to arbitral awards.

The Secretary General may publish extracts from arbitral awards without mentioning elements which would enable the parties to be identified.

[18] On that question see W. Ben Hamida “L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA ”, op.cit. p.299.

[19] https://uncitral.un.org/en/texts/arbitration/conventions/transparency

[20] https://uncitral.un.org/en/texts/arbitration/conventions/transparency/status.

[21] Burkina Faso, Cameroon, Côte d’Ivoire, Guinea, Mali and Senegal have signed BITs with CANADA in 2014 and 2015. Most of them refer to the application of UNCITRAL Arbitration rules. All these BITs are available on https://investmentpolicy.unctad.org/international-investment-agreements.

[22] A. Kouyate, « La transparence dans l’arbitrage CCJA », op.cit, p. 314-315.

[23] https://www.siac.org.sg/images/stories/articles/rules/IA/SIAC%20Investment%20Rules%202017.pdf

[24] China International Economic and Trade Arbitration Commission (CIETAC) “Arbitration Rules on investment disputes.

[25] W. Ben Hamida « L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA », op.cit p.298/

Also ,https://cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf § 139-143.

[26]https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf § 173-178

[27] W. Ben Hamida « L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA », demonstrates that despite the expansion to investment arbitration most of the provisions, if not all refer to arbitration agreement ignoring investment arbitration see for example the following articles of CCJA Arbitration Rules : 8 on forced intervention, 9 on the control prima facie of the tribunal jurisdiction, 10 on party autonomy… the same critics are addressed to the UAA.

[28] W. Ben Hamida « L’arbitrage d’investissement d’après le nouveau Règlement de la CCJA », op.cit, p. 301.

[29] The first meeting of the  UNCITRAL Working Group ISDS Reform took place from the 27 November – 1 December 2017. More details on ISDS Reform on  https://uncitral.un.org/en/working_groups/3/investor-state

[30] http://undocs.org/en/A/CN.9/WG.III/WP.183

[31] http://undocs.org/en/A/CN.9/WG.III/WP.199

[32] http://undocs.org/en/A/CN.9/WG.III/WP.181

[33] Common Convention on Investments in the States of the Customs and Economic Union of Central Africa (adopted 14 December 1965, entered into force 1 April 1966). The CEMAC Charter of investments was signed in December 1999, Economic Community of West African States Supplementary Act A/Sa.3/12/08 Adopting Community Rules on Investment and the Modalities for Their Implementation with ECOWAS (signed 19 December 2008, entered into force 19 January 2009).

[34] M. Freedomm Qumba, “Assessing African Regional Investment Instruments and Investor- State Dispute Settlement”,  British Institute of International and Comparative Law 2020, Pages 197 - 232 , see  especially p. 201

[35] See for example the Common Convention on Investments in the States of the Customs and Economic Union of Central Africa, adopted 14 December 1965, entered into force 1 April 1966.

[36] https://investmentpolicy.unctad.org/international-investment-agreements/

[37] https://investmentpolicy.unctad.org/international-investment-agreements/countries/31/burkina-faso

[38] https://investmentpolicy.unctad.org/international-investment-agreements/countries/47/congo

[39] https://investmentpolicy.unctad.org/international-investment-agreements/countries/50/c-te-d-ivoire

[40] https://investmentpolicy.unctad.org/international-investment-agreements/countries/129/mali

[41] See for example  the new generation of BIT’s signed between seven  OHADA Member States (Benin, Burkina Faso, Cameroon, Côte d’Ivoire, Guinea, Mali and Senegal) and Canada in 2014 and 2015.

[42] See for example Benin – Burkina Faso, Benin - Chad BITs 2001, France – Senegal BIT 2007 containing references to OHADA Arbitration. The reference to OHADA arbitration can be found also in some investment law. See for example the Charter of investment of the Central African Republic (2001), Mali investment Code (2005) Congo investment Code (2003) or the Togo investment Code (2012). It’s important to note, however, that wording used in these different instruments to make reference to OHADA arbitration as an option to settle investment disputes can sometimes lead to confusion or have to be subject to interpretation.

[43] See note 27 and 37 above.

[44] See Art. 9 Congo-Morocco BIT 2018, Arts 10 and 11 Mali -UAE , Mali-TURKEY BITs, Art 23 Côte d’Ivoire – Japan BIT.

[45] For example Congo- Morocco BIT 2018. One might expect to have at least a reference to an African arbitration option such as OHADA arbitration or a Morocco arbitration institution.

[46] See Art 10 If after a period of six (6) months :from the date of the written notification referred to in paragraph 2, the consultations and negotiations have not made it possible to settle such disputes, they may be submitted, as the investor may choose, to:

(a) to the competent court of the Contracting Party in whose territory the investment was made;

(b) or, subject to the condition set out in paragraph 5 of this Article, to

(i) the International Centre for the Settlement of Investment Disputes (ICSID) established by the "Convention on the Settlement of Investment Disputes between States and Nationals of Other States" in the event that both Contracting Parties are Parties to this Convention;

(ii) an Ad Hoc Arbitral Tribunal established under the Rules of Arbitration Procedure of the United Nations Commission on International Trade Law (UNCITRAL), approved by the United Nations General Assembly on 15 December 1976, as revised in 2010;

(iii) the Istanbul Arbitration Centre;

(iv) the Ouagadougou Arbitration, Meditation and Conciliation Centre (CAMCO);

(v) any other arbitral institution or arbitration rule, if the parties in the dispute agree.

[47] Arts. 10 Burkina-Faso – Turkey BIT, 23 Côte d’Ivoire- Japan BIT

[48] J-C Ngnintedem, « Le juge OHADA et l’investissement international », RDAI 2015-1, P.105, sp. p.106.



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