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Investment Arbitration, the ICSID, and Stay of Enforcement of Arbitral Awards: Spotlight on The Gambia’s Recent Victory by  Prof. Uche Ewelukwa Ofodile, S.J.D. (Harvard)*

12 March 2019

Introduction

On November 11, 2015, the Republic of The Gambia (“The Gambia”) filed an application for annulment of an Award rendered on July 14, 2015, (the “Award”) in the case of Carnegie Minerals (Gambia) Limited v. Republic of The Gambia, ICSID Case No. ARB/09/19. As part of its application for annulment, The Gambia requested a stay of enforcement of the Award. Pursuant to Section 52(5) of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”) and Rule 54(1) of the ICSID Rules of Arbitration Proceedings (the “Arbitration Rules”), the enforcement of the said Award was provisionally stayed on November 19, 2015. On February 1, 2016, an ad hoc Committee (“Committee”) of the International Center for the Settlement of Investment Disputes (“Center”), acting pursuant to Arbitration Rule 54(2), extended the stay of the enforcement of the Award. On September 4, 2018, The Gambia filed application for a continued stay of enforcement (“Application”) of the said Award. 

African States, Investment Disputes and Stay of Arbitral (ICSID) Awards: The Current State of Play by Prof. Uche Ewelukwa Ofodile, SJD (Harvard)*

11 March 2019

Introduction

On October 18, 2018, an ad hoc Committee (“Committee”) of the International Center for the Settlement of Investment Disputes (“Center” or “ICSID”) allowed an application by the Republic of Gambia (“The Gambia”) requesting the continued stay of the enforcement of a nearly $23 million arbitral award granted in the case of Carnegie Minerals (Gambia) Limited v. Republic of The Gambia: Decision on the Gambia’s Request for a Continued Stay of Enforcement of the Award (ICSID Case No. ARB/09/19). Unless modified or terminated, the decision will remain in place until the Committee rules on The Gambia’s application for the annulment of the Award. Despite The Gambia’s apparent victory, celebrations are not exactly in order for at least two reasons.

The attractiveness of the new OHADA Arbitration Act by  Mouhamed Kebe*

8 March 2019

A year ago, OHADA[1]adopted a new Uniform Arbitration Act, repealing the previous Uniform Act dated 11 March 1997. This reform is part of an effort to promote and consolidate, further illustrated by a new Uniform Act on Mediation being adopted and the Common Court of Justice and Arbitration's (CCJA’s) Rules of Arbitration being revised.

The reform aims to make the OHADA space more attractive for dispute resolution.

This paper addresses the main features of the reform, complemented where necessary by the new CCJA arbitration rules and the Uniform Act on Mediation.  It is followed by a table showing the main developments of the common legislation on arbitration.

Litigious Arbitration: The African Lawyer and His Many Hats by Adebayo Adenipekun, SAN, FCIArb*

20 Sept 2018

Litigation is the commonest legal practice area in Africa. In Nigeria, for example, people here associate lawyers solely with litigation and disputes. As a result, litigation has come to be viewed as a rough venture, a contact sport. The tactics employed by lawyers in litigating disputes – the evisceration of witnesses under cross-examination without care for boundaries, the willingness to foray into shameful and scandalous questions and the use of a whole range of guerrilla tactics – further serve to smear the image of the process to the potential litigant. There are also personal religious and cultural beliefs that precipitate either total reluctance to initiate a court process or real unwillingness to invoke the court against a class of persons. Add to that the fact that much like a war, the only thing that is certain of the timing of a court action is the date of commencement. It is anybody’s guess how long hostilities will last. In sum, parties are loathe to litigate against persons with whom they would desire future timely relations.

Enforcement/setting aside of Arbitral Award by Prof. Paul Idornigie*

17 Sept 2018

On the 10th day of January, 2017, the High Court of the Federal Capital Territory, Abuja, Nigeria in Suit No: FCT/HC/CV/610/14 before His Lordship, Hon. Justice A.B. Mohammed delivered a judgment in the case involving ABANG ODOK V. ATTORNEY GENERAL OF BAYELSA STATE (available here), on a matter for the enforcement/setting aside of the Final Award of Professor Paul Obo Idornigie, SAN, PhD, C.Arb, Sole Arbitrator. The Final Award was rendered on 17 January, 2014.   Abang Odok was the Claimant in the arbitral proceedings while Attorney General of Bayelsa State was the Respondent.  The Claimant was also the Applicant (Award Creditor) at the High Court while the Respondent was still the Respondent (Award Debtor).  

Successor to LCIA-MIAC Arbitration Centre publishes new arbitration rules by Duncan Bagshaw*

9 Sept 2018

The Mauritius International Arbitration Centre ("MIAC"), which was recently established in Mauritius to succeed the LCIA-MIAC Arbitration Centre, has published its first Arbitration Rules.

As recently reported in an earlier blog (here), LCIA-MIAC recently terminated operations after the LCIA decided to withdraw from the agreement with the Government of Mauritius under which the LCIA-MIAC Arbitration Centre operated.

Shaping Investment Arbitration: The Experience of COMESA and SADC** by Dr. Rukia Baruti*

9 July 2018

The development of international investment arbitration beyond its contractual basis is a relatively recent phenomenon.  Not too long ago, it was inconceivable – unless consent to arbitrate had been given in a concession contract – for private investors to initiate direct arbitration against host States.  But neither Contracting Party to the first bilateral investment treaty (‘BIT’) nor signatory of the 1965 Convention on the International Centre for Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’)[2] would have foreseen that they had unwittingly participated in a chain of events that would ultimately limit host States’ sovereign powers and open other bases up for direct arbitration by private investors.

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