Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 45

NUMÉRO SPÉCIAL AFRIQUE
The African Arbitration Academy Model BIT (AAA Model BIT)
Another continent-wide but non-binding legal instrument which highlights the
growing interest by Africa in having a common framework for regulating investment
is the African Arbitration Academy Model BIT, ( " AAA Model BIT " ), which was
released in July 2022. 33
The document states its main objective as being " to promote,
encourage and increase investments, and enhance sustainable development in
Africa " . It has been provided as a guide that States may use when drafting their
own BITs or choose to adopt its terms wholesale. In response to the concerns of
African States, the AAA Model BIT contains comprehensive provisions defining
what constitutes the Most Favoured Nation status and National Treatment, 34
and Equitable Treatment and Full Protection and Security standards, 35
Fair
issues which
are often the basis upon which investment claims are made against African States.
Article 22 of the AAA Model BIT covering dispute settlement permits respondents in
investor-State arbitrations to file counterclaims. 36
The AAA Model BIT also includes
the right of third parties to file amicus curiae briefs in investment arbitration
proceedings provided that the submissions are directly relevant to the factual or
legal issues under consideration and it provides the procedure in its Annex 3.
There has been a decline in the speed with which African States entered into
BITs with other countries, possibly fuelled by their current discontent with the
present ISDS system. The AAA Model BIT, as well as the PAIC and the proposed
AfCFTA Investment Protocol provide a strong framework for African States looking
to conclude BITs on an equal footing with other countries.
At the sub-regional level also, efforts have been made to provide an investment
arbitration legal framework that is conducive to both States and investors.
Organization for the harmonization of African Business Law
(OHADA)
A new OHADA 37
Arbitration Law ( " UAA " ) 38
arbitration framework, comprising of the Uniform Act on
and the Rules of Arbitration of the Common Court of
Justice ( " CCJA Arbitration Rules " ), which replaced the previous 1996 and 1999
33. African Arbitration Academy Model BIT, July 2022 (https://jusmundi.com/en/document/pdf/
treaty/en-africa-arbitration-academy-model-bilateral-investment-treaty-for-african-states-aaa-modelbit-friday-1st-july-2022).
34.
Ibid., Article 4.
35. Ibid., Article 5.
36. Ibid., Article 22(G) provides that " [a] Respondent may initiate a Counterclaim for breach
of the obligations set out under this Agreement before an Arbitral Tribunal established under this
Article 22 and seek, as a remedy, suitable declaratory relief or monetary compensation. " .
37. OHADA is the French acronym for «Organisation pour l'Harmonisation en Afrique du
Droit des Affaires». Translated into English it is known as «Organisation for the Harmonization of
Business Law in Africa». The organisation was established by Treaty on 17 October 1993 in Port Louis
(Mauritius), and was revised in 2008 in Quebec (Canada) (https://www.ohada.org/en/history-of-ohada/).
38. Uniform Act on Arbitration Law, OHADA, 23 March 2017 (entered into force on 15 March
2018) (https://www.ohada.org/en/arbitration-law/).
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https://jusmundi.com/en/document/pdf/treaty/en-africa-arbitration-academy-model-bilateral-investment-treaty-for-african-states-aaa-model-bit-fr https://jusmundi.com/en/document/pdf/treaty/en-africa-arbitration-academy-model-bilateral-investment-treaty-for-african-states-aaa-model-bit-fr https://jusmundi.com/en/document/pdf/treaty/en-africa-arbitration-academy-model-bilateral-investment-treaty-for-african-states-aaa-model-bit-fr https://www.ohada.org/en/history-of-ohada/ https://www.ohada.org/en/arbitration-law/

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

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