Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 22

AFRICA SPECIAL ISSUE
two decades of this century. 58
At the time of writing this paper, 42 of Africa's
54 African countries are contracting states of the New York Convention. 59
The twenty-first century saw an increase in participation of African states
as respondents in investment arbitration under BITs, contracts, and domestic
investment laws. During this period, African states continued signing new BITs, 60
although most of them have not entered into force, and African states do not
appear to be taking steps to ratify them. African states also continued to sign
contracts providing for dispute resolution using international arbitration. Some of
the largest damages awards 61
and claims against African states 62
in this century
arise out of contracts. The states are not impervious to criticism of investor-State
dispute settlement and many have voiced their concerns at UNCITRAL Working
Group III on ISDS reform. As an illustration of the diversity of the continent, there
is no discernible African position at the UNCITRAL negotiations.
One of the milestones of intra-African relations in the twenty-first century which
could have a substantial impact on the development of international arbitration on the
continent is the establishment of the African Continental Free Trade Area (AfCFTA).
The AfCFTA holds much promise for Africans and, if properly implemented, could
lead to more intra-African trade and investment. To govern intra-African investments,
states have adopted 63
an Investment Protocol to the Agreement Establishing the
AfCFTA. Amongst other things, the protocol contains substantive provisions and
procedural rules for dispute settlement for intra-African investments and provisions
58. Zambia (2002), Liberia (2005), Gabon (2007), Rwanda (2009), Sao Tome and Principe
(2013), Burundi (2014), Comoros (2015), Democratic Republic of the Congo (2015), Angola (2017),
Cabo Verde (2018), Sudan (2018), Ethiopia (2020), Seychelles (2020), Malawi (2021), and Sierra
Leone (2021).
59. As on the date of writing this paper, the following African countries are not state parties to
the New York Convention: Gambia, Guinea-Bissau, Chad, Congo (Brazzaville), Equatorial Guinea,
Eritrea, Eswatini, Libya, Namibia, Somalia, South Sudan, and Togo.
60. See for example, since 2019 African countries have signed the Belarus-Zimbabwe BIT
(signed 3 February 2023, not in force), Mozambique-United Arab Emirates BIT (signed 7 July
2022, not in force), Côte d'Ivoire-United Arab Emirates BIT (signed 24 November 2021, not in
force), Democratic Republic of the Congo-United Arab Emirates BIT (signed 12 October 2021, not
in force), Democratic Republic of the Congo-Turkey BIT (signed 7 September 2021, not in force),
Angola-Turkey BIT (signed 27 July 2021, not in force), Democratic Republic of the Congo-Rwanda
BIT (singed 26 June 2021, not in force), United Arab Emirates-Zambia BIT (7 February 2020, in
force 25 June 2021); Côte d'Ivoire-Japan BIT (signed 13 January 2021, in force 26 March 2021),
Japan-Morocco BIT (singed 8 January 2020, in force 23 April 2022), Sierra-Leone UAE BIT (singed
22 December 2019, not in force), China-Mauritius BIT (signed 17 October 2019, in force 1 January
2021), Central African Republic-Rwanda BIT (signed 16 October 2019, not in force), Cabo VerdeSao
Tome and Principe BIT (signed 27 September 2019, not in force), Guinea-Bissau-UAE BIT
(signed 7 August 2019, not in force), Gambia-UAE BIT (signed 15 July 2019, not in force), BrazilMorocco
BIT (signed 13 June 2019, not in force), Côte d'Ivoire-Portugal BIT (signed 13 June 2019,
not in force), Liberia-UAE BIT (signed 30 April 2019, not in force), South Sudan-UAE BIT (signed 23
April 2019, not in force), Cabo Verde-Equatorial Guinea BIT (signed 16 April 2019, not in force),
Burkina-Faso-Turkey BIT (signed 11 April 2019, not in force), Kenya-Mauritius BIT (signed 10 April
2019, not in force), Cabo-Verde-Hungary BIT (signed 18 March 2019, in force 2 May 2020), GabonUAE
BIT (signed 1 March 2019, not in force).
61. See for example, P&ID v Nigeria, Final Award of 31 January 2017; and DigOil v Democratic
Republic of the Congo, Award of 7 November 2018.
62. See for example, Sundance Resources v Cameroon, Notice of Expropriation dated 18 October
2022.
63. Investment Protocol adopted on 19 February 2023 by the AU Assembly of African States
and Government.
296
The Paris Journal of International Arbitration 2023‑2
Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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