Egypt and Investor-State Dispute Settlement: The Russian roulette effect of domestic laws by Tarek Badawy
8 September 2019
As the most active African player in the investor-state dispute settlement (“ISDS”) world, second to none on the continent, one must wonder why Egypt is the primary target of investor claims notwithstanding its efforts to attract foreign investors. With an active Investment Ministry and a generally efficient Investment Authority, Egypt must be doing something right; but why is it that there are so many Investor-State arbitrations against Egypt?
Over 30 cases adjudicated by the International Centre for Settlement of Investment Disputes (“ICSID”) alone involve Egypt. While Egypt was able to win a few notable cases, the scale may soon tip in favor of investors, however, as several new cases are currently being disputed before ICSID.
Breach of the Public Procurement Act as a Public Policy Defence to the Enforcement of an Arbitral Award in Nigeria by Chizaram Uzodinma
26 August 2019
Recently, the Supreme Court in Mauritius invoked its powers under section 39(b)(ii) of the Mauritius International Arbitration Act 2008, to set aside an arbitration award on the ground that the enforcement of the underlying contract was in flagrant and concrete breach of the Mauritius Public Procurement Act therefore, the award was a violation of the Mauritius public policy.
This article will attempt to address whether the Nigerian courts would hold a similar view as the Supreme Court in Mauritius, that a breach of the Nigerian Public Procurement Act should be held as so fundamental as to amount to a breach of the public policy of Nigeria warranting the refusal of the enforcement of an award arising from such a breach.
Commercial Arbitration in Zimbabwe by David Kanokanga*
14 August 2019
Adjudication, arbitration, conciliation and mediation are some of the alternative dispute resolution mechanisms in use in Zimbabwe. Of these, arbitration is the most prominent one. On the 13th of September 1996, Zimbabwe repealed its outdated Arbitration Act (Chapter 7:02) and replaced it with the Arbitration Act (Chapter 7:15). Through section 2 of the said Act, the country adopted with minor modifications, the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The said Act applies to every arbitration agreement, whether made before, on or after the 13th of September 1996. It covers both domestic and international arbitration.
The Role of Governments in support of African Arbitration – A Presentation by Adebayo Adenipekun, SAN, FCIArb*
25 April 2019
Support for Arbitral Institutions
As at May 2016, there were at least 72 Arbitration institutions in Africa. Most of these institutions are privately run. By implication, arbitration is driven more by the efforts of private persons than by the efforts of government. While that is not in itself wrong, there are success stories in government-supported arbitral institutions. For instance, the Cairo Regional Centre for International Commercial Arbitration (CRCICA) is a respected arbitral institution in Africa. It started as the product of an agreement between the Asian-African Legal Consultative Organization (AALCO) and the Egyptian government. The government, therefore, played a major role in setting this organisation on its feet. Even better, the Egyptian Government endowed the CRCICA with all the privileges and immunities that will permit it to run as a truly independent body. To that end, CRCICA is accepted for its independence and the Centre is not known to have been unduly influenced by the Egyptian state, which has itself received heavy fines by CRCICA panels. For instance, on 31 January 2018, a CRCICA panel awarded damages over $1 billion against the Egyptian government. Lastly, the Global Arbitration Review reports that the Egyptian government has provided caseload opportunities for CRCICA by selecting CRCICA as the institution of choice in bilateral and multilateral agreements.
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
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.
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
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.
The attractiveness of the new OHADA Arbitration Act by Mouhamed Kebe*
8 March 2019
A year ago, OHADAadopted 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’) 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.