NB: This article was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 SAQ, in the International Business Law Journal (IBLJ) 4/2021 and is reproduced by agreement with the publishers.
Sub-Saharan Africa, including East Africa, is experiencing a rapid growth in population. At the same time, the region suffers from an enormous infrastructure deficit when compared to other parts of the world: quality infrastructure is lacking on many levels, especially for transport, energy production, real estate and communications. This deficit has been recognised as a major obstacle to faster and more stable economic growth, productivity and job creation in Sub-Saharan African economies. For a number of years, therefore, various infrastructure projects have been undertaken throughout the Continent. In light of the existing backlog, this is only the beginning of a long-term development process to create a competitive business environment, promote trade and unleash Africa’s huge productive potential.
Many East African countries have ambitious infrastructure agendas, reaching from the construction of new ports and airports to modern road and railway networks and hydroelectric dams. The major challenge these countries are facing is financing. Several foreign States (especially China, Russia, the US and certain European countries) have seized the investment opportunities and are competing to provide financial aid—often not entirely disinterested, but with a (geo)-political agenda to gain access to resources and influence in emerging markets.
The growing number of complex infrastructure projects across the region, some of which are mentioned in this article, inevitably leads to a growing number of construction disputes. This article describes the landscape regarding major infrastructure projects in East Africa, including the impact of China’s Belt and Road Initiative. It examines how disputes related to such projects are being resolved today and provides a brief overview of the East African arbitration landscape. The article seeks to identify certain trends for the future, including the impact of the COVID-19 pandemic and digitalisation, and closes with an outlook into the future.
INFRASTRUCTURE DEVELOPMENT IN EAST AFRICA
Taking stock of the infrastructure development
East African States have upped the ante on infrastructure development. This is evident not only from regional and national policy documents such as the East African Community Vision 2050, the Tanzania Development Vision 2025 and Kenya’s Vision 2030, all of which prioritise infrastructure development as a core pillar of economic growth, but also from the number of ongoing projects. As of June 2019, there were at least 182 infrastructure projects with a value of USD 50 million and above that had commenced in East Africa. Collectively, these projects were valued at USD 146 billion and accounted for more than a third of the Continent’s infrastructure projects.
However, in what has been termed as “Africa’s Infrastructure Paradox”, the Continent’s track-record in moving projects to financial closure has been poor despite international investors having both the appetite and funds to spend on infrastructure projects in Africa. As of 2020, there were only 46 ongoing projects on the Continent with a value between USD 500 million and 1 billion; the vast majority of projects ranged between USD 50–100 million. This has been attributed to difficulties in structuring, financing, and delivering projects. Several projects fail at the feasibility and business plan stage owing to the insufficient technical capabilities and financial resources being dedicated to design and implement infrastructure projects with commercial potential. Other issues that may lead to failure include short political cycles, which challenge commitments to long-term infrastructure projects, delays in obtaining licences, approvals and permits as well as the inability to obtain guarantees.
Nonetheless, East African States have succeeded in securing funding commitments and increased budgetary allocations for infrastructure projects. In 2018, East Africa reported funding commitments of USD 14.2 billion with state spending ranging between USD 5.6–8.4 billion. While most projects are funded and owned by national governments as facilitators of infrastructure development, China has emerged as the single largest financier of infrastructure projects, surpassing private domestic firms and international development finance institutions. In 2020 alone, China funded 13.6 per cent of East Africa’s infrastructure projects, not counting international consortia. China is also involved in the construction with at least 50 per cent of the projects, primarily in the transportation sector, being built by Chinese firms. This is part of China’s African policy as well as its Belt and Road Initiative (BRI), which is further discussed below.
Despite the increase in financing from China, Africa’s infrastructure finance gap is still very significant. It is estimated that between USD 67.6 billion and USD 107.5 billion is needed annually to alleviate Africa’s current infrastructure deficit. An increasing number of EastAfricanStatesare turning to Public-Private Partnerships (PPPs) in order to finance this gap.
Notable infrastructure projects
Several mega infrastructure projects are underway in East Africa as part of a concerted effort by States to lower the cost of business, attract foreign investment and facilitate economic growth in the region. The transport and energy sectors account for the largest number of projects in the region.
East African States are investing heavily in modern port, airport, rail and road infrastructure to cater for the increased number of passengers and cargo volumes, while facilitating trade and boosting regional integration. Ports have attracted the most valuable projects in this sector, led by the USD 10 billion Bagamoyo Mega Port in Tanzania, which is set to become Africa’s largest port on the East African coast upon completion, superseding the Kenyan port of Mombasa. The project, which is jointly financed by Oman and China, will include 65 kilometres of railway connecting the port with the Tanzania-Zambia railway. It has however experienced delays after Tanzania’s government demanded the renegotiation of the project contracts.
Kenya is constructing a 32-berth port in Lamu to reduce congestion at the port of Mombasa. The port is part of the USD 25 billion Lamu Port and Lamu–South Sudan–Ethiopia Transport Corridor (LAPSSET), East Africa’s largest integrated infrastructure project that aims to connect countries in the region, including through intraregional highways, railway lines and airports. Djibouti has also built the Doraleh Multipurpose Port for USD 590 million. The port, which came into use in 2015, has been at the centre of a dispute concerning its management.
Railway projects have also drawn a significant amount of investment across the region, the most prominent of which is the construction of the first phase of a standard gauge railway from the port of Mombasa to Nairobi at a cost of USD 3.6 billion. This railway, along with the USD 4 billion Addis Ababa–Djibouti Railway, are being financed using loans from the Exim Bank of China as part of the BRI. The second phase of the railway from Nairobi to the Kenya–Uganda border is facing some obstacles after China decided to withhold USD 4.9 billion needed to complete the project. Tanzania, on the other hand, opted not to rely on Chinese funding for its USD 7.5 billion standard gauge railway system, which will link the country to its landlocked neighbours Rwanda and Uganda; this project has been financed through budgetary allocations and a syndicated loan from a development finance institution.
Spurred on by the discovery of oil and gas deposits in the region, the energy and power sector accounts for the second highest number of projects in East Africa. Tanzania’s USD 30 billion Likong’o–Mchinga Liquefied Natural Gas Project (LMLNGP) is the most valuable energy infrastructure project in the region. The project, which will be undertaken by a consortium of companies in conjunction with the Tanzania Petroleum Development Corporation (TPDC), a state-owned entity, is expected to commence in 2022. Similarly, Djibouti is building a USD 4 billion LNG plant to process and export natural gas from Ethiopia.
In Uganda, the construction of a USD 4.27 billionoil refinery is set to begin following the discovery of an estimated 1.7 billion recoverable barrels of oil in its Lake Albert basin in 2006. Uganda and Tanzania have also signed agreements with France’s Total and China’s CNNOC oil firms, paving the way for the construction of the 1,445 km East African Crude Oil Pipeline (EACOP) from Uganda to the port of Tanga in Tanzania. The project, which is valued at USD 3.5 billion, is touted to be the world’s longest heated pipeline. Several infrastructure projects have also been initiated in the renewable energy sector, including the USD 4.8 billion Grand Ethiopian Renaissance Dam (GERD) project that is expected to produce at least 5,000 MW making it the largest hydro-power project on the Continent, and the construction of a 30 MW solar energy plant in the Grand Bara desert in Djibouti by the French energy group Engie.
The array of mega infrastructure projects in East Africa, some of which are mentioned above, demonstrates a shift towards infrastructure that aims to spur intra-Africa trade. Furthermore, the alignment through regional projects allows the East African economies—particularly the smaller ones—to participate in collective bargaining, making it easier for them to secure funding for infrastructure projects.
While the above overview is by no means intended to be exhaustive, it presents some of East Africa’s most notable infrastructure projects while at the same time demonstrating the financing challenges that are encountered and the increasing prominence of China in the region’s infrastructure development.
China’s Belt and Road Initiative in the East African context
China’s direct investment into African infrastructure projects is nothing new. In the last two decades, it exceeded a cumulated USD 200 billion and peaked at USD 5.5 billion in 2008 alone. That amount of investment has resulted in hundreds of African projects being funded with Chinese capital to date.
The BRI launched by the Chinese government in 2013, originally contemplated only a few African stops. In theory, the only parts of the Continent intended to be concerned with the BRI were the Horn of Africa and the Suez Canal area in Egypt as these territories were to be included in the maritime road aspect of the BRI, and investments were to be focused mainly on port infrastructure.
Seven years into the initiative, however, a significant number of African projects have been tagged as BRI projects, despite not being in close proximity to the original stops. Further, although officially there are only ten African countries involved in the BRI (Angola, Chad, Djibouti, Egypt, Ethiopia, Kenya, Nigeria, Sudan, Uganda and Zimbabwe), several BRI projects either are located, or connected, to countries outside of this official list—the rationale being that the BRI is an adaptable and multidimensional effort that can incorporate projects on an ad hoc basis, as long as they broadly relate to connectivity aspects, which form a key part of the BRI’s underlying motives, and are officially announced as BRI projects by the Chinese authorities.
In 2018, loan and investment commitments of USD 60 billion were announced, with a significant portion geared towards addressing Africa’s infrastructure deficit. As is well documented, and sometimes considered as controversial, these loans are made on a State-to-State basis and/or are resource-backed.
As one of the original stops in the African arm of the BRI, Egypt has so far been one of the biggest recipients of BRI investment. Over 100 Egyptian projects have been financed through BRI funds amounting to just under USD 100 billion. The most significant among these projects is the construction and development of the Suez Canal Economic Zone (SCZone), a free trade zone aimed at facilitating economic and trade cooperation between China and Egypt. This project covers a 461 km2 area and plans to house over 150 Chinese companies of all sectors, for a total investment of over USD 2 billion. Egypt is also home to a second pharaonic BRI project, namely the construction of the country’s new administrative capital city, Wedian, which will be located 45 km east of Cairo.
The development of economic and trade cooperation zones such as the SCZone has in fact been chosen as a key pillar of the BRI investment strategy in Africa. Apart from Egypt, these types of infrastructure have notably been developed in Zambia (Zambia–China Economic & Trade Cooperation Zone), in Nigeria (Lagos Free Zone) and in Ethiopia (Oriental Industrial Park).
At the Horn of Africa, one of the original stops of the BRI in Africa, Djibouti in particular has been a main target of BRI investment. The Doraleh Multipurpose Port has received significant BRI investment with the objective of enlarging its capacities. As discussed further below, these efforts have resulted in major disputes, notably in relation to the decision by the Djibouti authorities to rescind the original operation concession, held by non-Chinese operators, to then allocate it to different operators from China. Additionally, Kenya has also seen significant projects financed and constructed under the BRI label, such as the Mombasa–Nairobi Standard Gauge Railway.
In terms of sectors targeted by African BRI efforts, in addition to the general transport infrastructure (especially maritime and rail), natural resources (with a particular emphasis on mining) and the construction sectors have been key investment recipients.
DISPUTE RESOLUTION PRACTICE
Insights into infrastructure-related disputes in East Africa
Sophisticated operators involved in East African infrastructure projects are also well versed in dispute resolution. International contracts entered into in relation to such projects typically contain dispute resolution mechanisms aimed at ensuring the efficient and quick resolution of disputes to mitigate adverse consequences for the underlying projects, such as a temporary or permanent suspension of the works. In this respect, experience shows that international infrastructure contracts often include multi-tier dispute resolution clauses, blending negotiation, adjudication, expert determination, mediation and arbitration.
A review of the most publicised disputes arising from infrastructure projects in East Africa helps shed light on the specifics of the dispute resolution mechanisms used in the relevant contracts, in particular with regard to the arbitration rules used and the different steps involved in the resolution of these disputes.
One of the most well-known disputes in the region in recent years is the one between DP World and Djibouti in relation to the Doraleh Port. In 2006, DP World, an entity owned by the Government of Dubai, was awarded a 50-year concession to build and operate the Doraleh terminal in Djibouti. In 2014, Djibouti, having failed to persuade DP World to renegotiate the concession terms, unilaterally terminated the agreement and seized control of the terminal. In the meantime, Djibouti had signed an agreement with a subsidiary of Chinese state-owned port operator, China Merchants Group, to build the Djibouti Multipurpose Port, an extension to the site located near a new Chinese military base.
These circumstances gave rise to two arbitration proceedings under the auspices of the London Court of International Arbitration (LCIA). First, in 2014, Djibouti lodged an arbitration claim against DP World, arguing that the rescission of the concession contract by the Djibouti government was valid as the contract had been procured through corruption. This claim was dismissed by an LCIA tribunal in 2017. In parallel, in 2014, DP World lodged a counterclaim against Djibouti for damages resulting from the State’s breach of the exclusivity clause in the concession contract when it entered into an agreement with China Merchants Group. This damages claim was upheld by the arbitral tribunal and Djibouti was ordered to pay USD 485 million to DP World as compensation. In 2018, DP World launched a further claim against Djibouti in relation to the seizure by the government of parts of the container terminals at the Doraleh Port subsequent to the rescission of the concession. This claim was heard by an LCIA sole arbitrator who held in 2020 that the seizure was unlawful given that it was based upon the invalid rescission of the concession. The sole arbitrator ordered the State to return the seized assets, or alternatively, to pay damages that had been quantified in excess of USD 1 billion.
Contractual disputes such as the one involving DP World are not the only type of disputes brought before arbitration tribunals in relation to East African infrastructure projects. Disputes between foreign investors and States initiated on the basis of international investment treaties (mostly bilateral investment treaties or BITs) have also emerged in the East African context, partly as a result of governmental efforts to assert greater control over natural resources located on a country’s territory, which runs counter to the interests of foreign investors (resource nationalism). For instance, in June 2018, two US companies (Bay View Group and Spalena Company) launched a claim for over USD 95 million against Rwanda over the cancellation of mining concessions. That claim is based on the 2008 US–Rwanda BIT, and is administered by the International Centre for Settlement of Investment Disputes (ICSID). As part of a privatisation program launched in 2005, the claiming investors entered into preliminary agreements (“acquisition contracts”) with the Rwandan government, which would then be turned into long-term contracts necessary for the implementation of their mining project. They invested more than USD 30 million on a new processing plant, upgrading processing and transport lines and establishing a medical clinic. When the State rejected the claimants’ application for long-term concession contracts in 2016, the State took control of the mining operations and seized the investments. As a result, the claimants argue that the State breached its obligations under the US-Rwanda BIT.
The above brief overview shows that the dispute resolution mechanisms in relation to East African projects can be of a contractual nature and treaty based. For commercial disputes, parties have typically agreed to resort to established institutional arbitration institutions such as the ICC and the LCIA, leading to efficient enforcement of contractual rights despite tense and complex factual situations.
A further element worth mentioning relates to potential disputes involving State lending agreements. In relation to the BRI in particular, China, through the Asian Infrastructure Investment Bank (AIIB) or the China EXIM Bank, has loaned significant amounts to African States in order to finance BRI infrastructure projects in these States. While the geopolitical interpretation of these mechanisms is not the topic of this article and the terms of these agreements have not been disclosed to the public, resolution of disputes in connection with these agreements will include specially created arbitration courts and State-to-State mechanisms, in conjunction with traditional diplomatic negotiations.
Whether the latter mechanisms would include alternative dispute resolution tools such as mediation and arbitration remains to be seen. One such mechanism is the China–Africa Joint Arbitration Centre (CAJAC) with offices in Shanghai and Johannesburg. The CAJAC was set up to provide a platform for resolving commercial disputes between Chinese and African parties, aiming to make parties from both sides feel comfortable when selecting the arbitral institution. It is structured to make use of existing arbitral institutions and has entered into partnerships with the Nairobi International Arbitration Centre (NCIA), the Arbitration Foundation of Southern Africa (AFSA), the Shanghai International Arbitration Centre (SHIAC), the Beijing International Arbitration Centre (BIAC), the Shenzhen Court of International Arbitration (SCIA), and the Organization for the Harmonization of Business Law in Africa (OHADA).
Applicable law in construction contracts
Unlike OHADA, which seeks to modernize and harmonize business laws of its member States, there is no common legal framework governing contractual relationships in East Africa. Each State has its own national law that would be applicable depending on the choice of law in the contract. Accordingly, the interpretation and effect given to the terms of a contract will depend on the national law governing the construction contract. The parties’ choice of law is influenced by various factors including their nationality, familiarity with the applicable law, the certainty offered by the law with respect to key aspects of the contract, the place of performance of the project as well as the jurisdiction and forum the parties have selected for dispute resolution. Most African infrastructure projects are contracted under local laws where the employer entity is the State or a state-owned entity, which will seek to make the choice of its own law mandatory.
The choice of law may also be affected by the decision of the project financiers. Contracts involving international finance institutions are often governed by the law of jurisdictions with an established body of law applicable to financing. Lenders often have a clear preference for English and New York Law as opposed to the local law at the location of the infrastructure project, not only because of its “neutrality” but also because it is felt that these legal systems are better equipped to deal with disputes concerning sophisticated project structures and documentation.
Some Development Finance Institutions (DFIs), including the African Development Bank (AfDB), provide that public international law shall be applicable to project finance agreements.
Unlike transactions financed by traditional DFIs, the terms of engagement in contracts financed by China are not clear owing to confidentiality provisions.
The regulatory environment for infrastructure projects is becoming increasingly complex with anti-corruption and bribery legislation emerging in many jurisdictions. In addition to the various anti-corruption regulations existing in East African States, some jurisdictions such as the UK and the US have enacted anti-bribery legislations which have extra-territorial application. Through such laws, investors face scrutiny at home and in the jurisdiction of the investment. Further, where the project is financed by DFIs, there is an additional level of scrutiny.
Overview of the East African arbitration landscape
The growing attractiveness of arbitration as a means of settling commercial and investment disputes in Africa has triggered new developments on various levels.
Importantly, it has led to increased legislative activity and the modernisation of arbitration laws in several countries, introducing overdue changes required by the local arbitration community by incorporating recent developments in arbitration practice. Rwanda passed its Arbitration and Conciliation Act in 2008, Kenya amended its 1995 Arbitration Act in 2009, and Mauritius updated its 2008 International Arbitration Act in 2013—in all three cases, the new acts are based on the UNCITRAL Model Law. In 2020, Tanzania enacted a new Arbitration Act, which is broadly modelled on the English Arbitration Act of 1996and provides a modern and comprehensive set of provisions enhancing clarity and efficiency in arbitration as against the earlier, antiquated act of 2002. The new law also provides for the establishment of the Tanzania Arbitration Centre to act as a regulator of arbitration in Tanzania and to keep a register of approved arbitrators in the country. Similar reforms will likely occur in other East African States whose arbitration laws have not kept pace with changing trends. Apart from responding to the needs of businesses, the legislative changes also serve to position the East African jurisdictions in the competition to emerge as the seat of choice for Africa-related international arbitrations. In early 2021, the African Arbitration Association (AfAA) helpfully introduced its “African Arbitration Atlas”, a free online resource intended to provide a comprehensive overview of the African arbitration legislation landscape.
While several East African States including Kenya, Mauritius, Rwanda, Tanzania and Uganda have for a number of years been contracting States to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the cornerstone of the global international arbitration system, others have only joined in recent years. Those include Burundi in 2014, Angola in 2017, Sudan in 2018, the Seychelles and Ethiopia in 2020, and Malawi in 2021. Eritrea, Somalia and South Sudan have yet to adhere to the New York Convention. Overall, it has hence become easier to uphold international arbitration agreements and to enforce foreign arbitral awards in this part of the Continent—provided the local judiciary and lawyers alike are trained to adopt an arbitration-friendly approach when applying the New York Convention.
Another change in the dispute resolution landscape in Africa is the creation of new, and the further development of existing, arbitration institutions that provide modern alternative dispute resolution case administration services both domestically and internationally and adhere to accepted international standards of governance. East Africa features the Kigali International Arbitration Centre (KIAC), the Nairobi Centre for International Arbitration (NCIA), the Mauritius International Arbitration Centre (MIAC), the newly established Tanzania International Arbitration Centre (TIAC), and the International Centre for Arbitration and Mediation in Kampala, in Uganda (ICAMEK). The growing sophistication, reputation and caseload of these institutions, which are competing with other arbitral institutions on the Continent, will be crucial in establishing East Africa as a mature and safe place to arbitrate. It will not be long until these local institutions will supersede the non-African arbitration institutions that have for many years dominated the space of international arbitration in Africa, such as the ICC and the LCIA.
The development of a vibrant local arbitration community has yielded several arbitration associations that actively promote the nomination of arbitrators from African countries and provide training and knowledge transfer for African lawyers, in particular for the younger generation. These include the African Arbitration Association (AfAA), the Kenya Branch of the Chartered Institute of Arbitrators, and the Association of Young Arbitration Practitioners in Africa (AYA), which organises a yearly Africa Arbitration Academy for young practitioners. “The African Promise” aims to improve the profile and representation of African arbitrators, especially in arbitrations connected to Africa, a goal that is shared by AfAA’s Directory of African International Arbitrators (DAIA) and the group Racial Equality for Arbitration Lawyers (REAL). This account would be incomplete without mentioning I-Arb Africa, an Africa-focused international arbitration resource platform, and the annual East Africa International Arbitration Conference (EAIAC).
Last but not least, the construction industry and arbitration practitioners will be able to rely on the technical expertise of a growing body of local, sometimes internationally certified experts of African descent who can be appointed in arbitration proceedings. For instance, the Association of Consulting Engineers Tanzania (ACET), a member association of the International Federation of Consulting Engineers (FIDIC), maintains a list of national adjudicators in Tanzania.
TRENDS IN EAST AFRICAN CONSTRUCTION ARBITRATION
There is every indication that domestic and international disputes relating to construction projects in East Africa will increasingly be resolved through arbitration. Given the enactment of modern arbitration-related legislation, the proliferation of arbitral centres across the Continent, and the growing body of skilled local arbitration practitioners, the practice of arbitration in the region will reach fruition. Moreover, Africa-related disputes will increasingly be heard in Africa, before “Africa-focused” arbitration centres, rather than before international centres in distant cities abroad. This also applies to investment arbitration cases involving African States, which have been on the rise in recent years.
As in other regions of the world, the legal profession in Africa is adapting to new technologies entering the market. Law firms in particular are forced to change certain traditional ways of servicing their clients and to respond to their clients’ needs, making use of “legal tech” and competing with providers of new alternative legal solutions. The COVID-19 pandemic has acted as a catalyst for this transformation. Indeed, legal tech presents an opportunity for African legal markets to “leapfrog countries globally in its adoption of technology to improve legal services”. It is noteworthy, for instance, that the African Arbitration Academy was the first to develop, in April 2020, an innovative “Protocol on Virtual Hearings in Africa”, designed to take also into account the specific challenges and circumstances that may arise in relation to remote hearings in Africa. Naturally, the courts are often slower in embracing technological changes and will likely require more time to do the shift towards “remote justice”.
The construction sector will undergo a digital transformation with the adoption of modern technologies for the construction industry such as Building Information Modeling (BIM), a software used to create digital 3D representations of buildings and infrastructure to facilitate planning, designing, and construction. The new international standard ISO 19650, launched in January 2019, will likely pave the way to a more rapid digitisation. Furthermore, resorting to blockchain technology for construction contracts can help safeguard legal certainty and reduce the risk of misuse and corruption, which in turn could significantly enhance efficiency, productiveness and thus competitiveness—and promote foreign direct investment.
As on other continents, the construction industry in Sub-Saharan Africa has been heavily impacted by the COVID-19 pandemic, exacerbating financial difficulties, labor shortages, lack of construction material due to disruptions in the global supply chains, and project suspensions. As governments expand their spending on the health sector to combat the Coronavirus, less funding is available for infrastructure projects. The stalling of project financing in 2020 has been described to result in “an all-time low growth rate” for the construction sector inTanzania. As the pandemic endures, it remains to be seen how resilient the East African economies are. Existing financial difficulties may also result in parties to Africa-related disputes increasingly resorting to third party funding in arbitration proceedings.
Conclusion and Outlook
The multitude of infrastructure and construction projects and related investments throughout East Africa will inevitably lead to numerous disputes, especially where complex financial, operational and political risks materialise. In line with the “Africanisation” of dispute settlement and given the strategic importance of many of the infrastructure projects, disputes will no longer only be settled in traditional arbitral centres outside of the Continent, but increasingly in Sub-Saharan Africa itself. Many East African States are preparing the ground with domestic legislative reforms, capable arbitration institutions and a growing body of sophisticated local arbitration practitioners. The enormous potential can probably best be realised if all involved institutions and organisations take a collaborative approach to reaching this common goal.
Dispute resolution in general, and international arbitration in particular, has an important role to play in ensuring that disputes arising from infrastructure projects can be resolved efficiently and fairly—and thus contribute to successfully closing East Africa’s infrastructure gap and fostering economic growth in a sustainable way.
* Partner, LALIVE, Geneva, Switzerland
** LL.M. International Dispute Settlement (MIDS) (Graduate Institute of International and Development Studies and the University of Geneva); Arbitration and International Disputes Lawyer; Advocate of the High Court of Kenya. The views expressed in this article are solely those of the authors.
*** Associate, LALIVE, Geneva, Switzerland