Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 207

NUMÉRO SPÉCIAL AFRIQUE
If not, the risk is that African States could be held liable for improper regulatory
activities of State agencies pursuant to a multilateral or bilateral investment treaty.
The ICC Commission Report on Financial Institutions and International Arbitration
notes that the " number of investment arbitration claims of this nature continues to
grow " . 26
For example, in January 2018, a Mexican shareholder of Spain's former
Banco Populare commenced arbitration against Spain under the bilateral investment
treaty between Mexico and Spain. The dispute concerned the sale of Banco
Populare to its rival Santander for one euro following Banco Populare's collapse
and restructuring. The shareholder, who was seeking over USD 550 million in
damages, claimed that Spanish regulators had approved the sale and determined it
was in the 'public interest' without first considering alternative solutions that would
have averted a distressed sale. 27
Similarly, in 2022, an UNCITRAL tribunal dismissed a USD 300 million
treaty case against Lithuania brought by a Russian fund, shareholder of, at the
time, Lithuania's fifth-largest bank, Bankas Snoras. Lithuania had taken steps to
nationalise Bankas Snoras on the grounds that it was nearing insolvency as a result
of criminal activity involving one of the bank's Russian shareholders. The fund was
alleging that the decision to nationalise Bankas Snoras was politically motivated. 28
Although these examples concern banks located and operating outside of Africa,
they provide an indication of the type of arbitrations that the activities of African
banks might give rise to.
B. Disputes arising out of banks' commercial transactions
Against the backdrop of continuous liberalisation of the banking sector,
growing competition, and disruptions to traditional banking activities, as illustrated
by the growth of mobile payment providers, further consolidation will take place,
both within and across borders in Africa. Smaller banks will need to scale up to
create viable business models and survive. It is expected that within the West
African Economic and Monetary Union, where the process of implementing the
Basel Accords (Basel II/Basel III rules) is underway, stricter minimum capital
requirements will force inadequately capitalised banks to merge. 29
Larger banks
will make strategic acquisitions to benefit from economies of scale and build
26. ICC Task Force on Financial Institutions and International Arbitration, Supplement Financial
Institutions to the Financial Institutions and International Arbitration - ICC Arbitration & ADR Commission
Report, 2018, ¶ 33, available at (https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/
CR_0050_Supplement.htm?l1=Commission+Reports). (The Commission Report was published on
9 November 2016.)
27. Global Arbitration Review, Spain Faces Treaty Claim Over Handling of Bank Sale, 26 February
2018, available at (https://globalarbitrationreview.com/article/spain-faces-treaty-claim-over-handlingof-bank-sale);
Antonio del Valle Ruiz et al. v. Kingdom of Spain, PCA Case No. 2019-17.
28. Global Arbitration Review, Lithuania Defeats Claim Over Bank Nationalisation, 12 July
(https://globalarbitrationreview.com/article/lithuania-defeats-claim-over-bank2022,
available
at
nationalisation); Fund for Protection of Investors' Rights in Foreign States v. The Republic of Lithuania,
PCA Case No. 2019-48, Award dated 1 July 2022.
29. The Making Finance Work for Africa Partnership, Further Merger-Acquisition Plans expected
to consolidate the banking sector in sub-Saharan Africa over the next two years, Ecofin Agency,
11 July 2019, available at (https://www.mfw4a.org/news/further-merger-acquisition-plans-expectedconsolidate-banking-sector-sub-saharan-africa-over).
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Cahiers de l'Arbitrage 2023‑2
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https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0050_Supplement.htm?l1=Commission+Reports https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0050_Supplement.htm?l1=Commission+Reports https://globalarbitrationreview.com/article/spain-faces-treaty-claim-over-handling-of-bank-sale https://globalarbitrationreview.com/article/spain-faces-treaty-claim-over-handling-of-bank-sale https://globalarbitrationreview.com/article/lithuania-defeats-claim-over-bank-nationalisation https://globalarbitrationreview.com/article/lithuania-defeats-claim-over-bank-nationalisation https://www.mfw4a.org/news/further-merger-acquisition-plans-expected-consolidate-banking-sector-sub-saharan-africa-over https://www.mfw4a.org/news/further-merger-acquisition-plans-expected-consolidate-banking-sector-sub-saharan-africa-over

Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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