Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 42

AFRICA SPECIAL ISSUE
scattered across several investment instruments concluded by African countries
either among themselves or with other countries. This is understandable when one
takes into account the different legal systems which coexist on the continent. While
most English-speaking countries have common law based legal systems, legislations
in French speaking countries operate a civil law system based on the Napoleonic
code. South Africa has a mixed legal system - a hybrid of Roman Dutch civilian
law and English common law, while laws in North African countries, though based
on the French civil code, sometimes have included Islamic principles into their
banking laws and investment instruments. This may have somewhat hindered the
inflow of foreign investment into Africa as multi-country investors are forced to
deal with business and investment regulations that differ from country to country.
In response to these concerns, various initiatives have been embraced by
countries, the African Union and African arbitral bodies in an effort to guide the
African States in their approach to investor protection.
The Pan African Investment Code
The first effort was the drafting under the auspices of the African Union of the
Pan African Investment Code ( " PAIC " ). 16
, a non-binding legal instrument which
States are encouraged to use as the framework for negotiating their respective
bilateral or multilateral investment treaties ( " BITs " , " MITs " ), thereby ultimately
providing a unified investor climate throughout the continent. Its aim is to
provide a structure for the drafting of BITs and MITs that will promote, facilitate
and protect foreign investments while ensuring the sustainable development of
each member State. Although trading under the African Continental Free Trade
Agreement ( " AfCFTA " ) was to have commenced on 1 January 2021, it has not yet
commenced. 17
The PAIC was proposed as the foundation upon which the terms of
the AfCFTA investment protocol will be drafted. 18
In an effort to promote balance between the rights of investors and African
States, the PAIC contains specific obligations for investors. Chapter 4 titled " Investor
Obligations " comprises of Articles 19 to 24 which impose obligations on investors
with respect to (1) framework for corporate governance, (2) socio-political issues,
(3) bribery, (4) corporate social responsibilities, (5) obligations as to the use of
16. See, " Draft Pan-African Investment Code " , African Union Commission - Economic Affairs
Department, 31 December 2016 (https://au.int/sites/default/files/documents/32844-doc-draft_panafrican_investment_code_december_2016_en.pdf).
17.
See, " Status of AfCFTA Ratification " , Tralac Infographics, 20 February 2023 (https://www.
tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html#:~:text=Start%20of%20
trading%20under%20the,ratification%20(ordered%20by%20date)%3A). As also provided at the
AfCFTA webpage (https://au-afcfta.org/about/), the AfCFTA entered into force on 30 May 2019,
after 24 Member States deposited their Instruments of Ratification following a series of continuous
continental engagements spanning since 2012. The commencement of trading under the AfCFTA
was on 1 January 2021.
18. Jamie MACLEOD, " An overview of PAIC in relation to the AfCFTA Investment Protocol " in
Max MENDEZ-PARRA, " AfCFTA investment negotiations - Notes on concepts " , African Union, UK
Department for International Development, Overseas Development Institute, May 2020, pp. 23-27
(https://set.odi.org/wp-content/uploads/2020/06/Investment-Training-Notes.pdf).
316
The Paris Journal of International Arbitration 2023‑2

https://au.int/sites/default/files/documents/32844-doc-draft_pan-african_investment_code_december_2016_en.pdf https://au.int/sites/default/files/documents/32844-doc-draft_pan-african_investment_code_december_2016_en.pdf https://www.tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html#:~:text=Start%20of%20trading%20under%20the https://www.tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html#:~:text=Start%20of%20trading%20under%20the https://www.tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html#:~:text=Start%20of%20trading%20under%20the https://au-afcfta.org/about/ https://set.odi.org/wp-content/uploads/2020/06/Investment-Training-Notes.pdf

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

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