Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 44

AFRICA SPECIAL ISSUE
AfCFTA and its investment protocol
The " zero draft " version of the Protocol on Investment to the Agreement
Establishing the African Continental Free Trade Area (AfCFTA) draft ( " Investment
Protocol " ) 26
was published in November 2021. It formed the basis for subsequent
negotiations of the AfCFTA Council of Ministers, which began in late 2021. The
negotiations concluded in October 2022 and the draft text of the Investment
Protocol has been adopted at the ministerial level by the AfCFTA Council of
Ministers. 27
although it is unclear at
while
this time whether the " zero draft " as discussed herein was the version adopted as
this protocol. The Investment Protocol settles the conundrum of what constitutes
investor consent to State counterclaims in its draft Article 9 of Annex 1 29
Article 21 enshrines the State's right to regulate in the public interest, something
that has been a major cause for concern for State governments to date. 30
Chapter 4
of the Investment Protocol titled 'Investor Obligations' draws heavily on the investor
obligations stated in the PAIC. 31
Annex 1 to the Investment Protocol contains the
procedure for investment arbitration. In addition to the usual clauses relating to
appointment of the tribunal, notice of a claim, etc., the annex also contains a clause
requiring that arbitrators subscribe to the code of conduct for adjudicators subscribed
to by UNCITRAL and ICSID; it also prohibits double hatting by arbitrators. 32
26. See, " Protocol on Investment to the Agreement Establishing the African Continental Free
Trade Area - Zero Draft " , November 2021 (https://www.tralac.org/documents/resources/cfta/4613protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/file.html).
As
the Council of Ministers' draft of the Investment Protocol from October 2022 has not been
published at the time of writing this article, this article focusses on the 'zero draft' version of the
Investment Protocol.
27. See, " AfCFTA Protocol on Investment was concluded " , Investment Treaty News, 26 December
2022 (https://www.iisd.org/itn/en/2022/12/26/afcfta-protocol-on-investment-was-concluded/).
28. See, " Deepening the AfCFTA: celebrating the adoption of new protocols on investment,
intellectual property rights and competition policy " , United Nations Economic Commission for
Africa (UNECA) Blog, 16 March 2023 (https://www.uneca.org/stories/%28blog%29-deepening-theafcfta-celebrating-the-adoption-of-new-protocols-on-investment%2C).
29.
" Protocol on Investment to the Agreement Establishing the African Continental Free Trade
Area - Zero Draft " , November 2021, Annex 1 - Rules and Procedures governing the Management
and Settlement of Disputes under the Protocol on Investment to the Agreement establishing the
AfCFTA, Part II - Investor-State Arbitration, Article 9 - Consent to Arbitration, p. 37 ( " Consent to
arbitration shall be provided as follows: [...] b. by submitting a claim to arbitration, the investor also
consents to counterclaims by the Host State for an alleged breach of the Protocol. " ) (https://www.
tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-theafcfta-zero-draft-november-2021/file.html).
30.
" Protocol on Investment to the Agreement Establishing the African Continental Free Trade
Area - Zero Draft " , November 2021, Chapter 3, Article 21 - Right to Regulate, p. 19.
31. For instance, Article 29 of the Investment Protocol matches Article 24 of the PAIC to a large
extent.
32. " Protocol on Investment to the Agreement Establishing the African Continental Free Trade
Area - Zero Draft " , November 2021, Annex 1 - Rules and Procedures governing the Management
and Settlement of Disputes under the Protocol on Investment to the Agreement establishing the
AfCFTA, Part II - Investor-State Arbitration, Article 12 - Code of Conduct of Arbitrators, p. 38 ( " The
arbitrators shall be bound at all times during the arbitration by the Code of Conduct for Adjudicators
in Investor-State Dispute Settlement adopted by the UNCITRAL and ICSID. For greater certainty,
no arbitrator can act concurrently as counsel in another actual or potential treaty-based arbitration
involving an investor and a State. " ).
318
The Paris Journal of International Arbitration 2023‑2
An Investment Protocol was adopted by the AU Assembly of Heads
of State and Governments at its February 2023 meeting 28

https://www.tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/f https://www.tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/f https://www.iisd.org/itn/en/2022/12/26/afcfta-protocol-on-investment-was-concluded/ https://www.uneca.org/stories/%28blog%29-deepening-the-afcfta-celebrating-the-adoption-of-new-protocols-on-investment%2C https://www.uneca.org/stories/%28blog%29-deepening-the-afcfta-celebrating-the-adoption-of-new-protocols-on-investment%2C https://www.tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/f https://www.tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/f https://www.tralac.org/documents/resources/cfta/4613-protocol-on-investment-to-the-agreement-establishing-the-afcfta-zero-draft-november-2021/f

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

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