Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 49

NUMÉRO SPÉCIAL AFRIQUE
September 2022 this was repealed and replaced with a new Arbitration Act. 58
The
Act is likely to be the newest arbitration law on the continent, possibly the reason
why it makes provision for issues such as third-party funding, which other African
common law based countries have yet to reach agreement on as to its permissibility
within their legal systems. The 2022 Act reflects the UNCITRAL Model Law and
makes provisions for issues such as interim relief, confidentiality, recognition and
enforcement of foreign awards, among others. 59
Africa's contribution to the ISDS system
African countries have frequently appeared as respondents before international
investment arbitration tribunals for violating their investment treaty obligations,
mostly provisions on expropriation. In 2022, 19% of the cases filed at ICSID
involved African State parties. 60
UNCTAD reported in 2018 that in most of such
cases filed between 1987 and the date of its report, African State parties have
been found liable. 61
contributed to the development of international investment law. 62
first State to sign the ICSID Convention when it opened for signature; 63
first ICSID arbitration case was in 1972 against an African party. 64
Gabon v Société Serete S.A 65
However, their participation in the ISDS system has positively
Tunisia was the
while the
Republic of
was the first case in which the State was the claimant
while the first arbitral award was issued in Adriano Gardella S.p.A. v Côte d'Ivoire 66
in 1977. Africa also heralded the first request for annulment of award in 1982. 67
58. Arbitration Act, 2022, Republic of Sierra Leone, 22 September 2022 (https://www.
parliament.gov.sl/uploads/acts/THE%20ARBITRATION%20ACT,%202022.pdf).
59. See, Yannick Kouassi, " World Arbitration Update: Legal Developments in Sub-Saharan
Africa - Africa's Blooming " , Kluwer Arbitration Blog, 19 November 2022 (https://arbitrationblog.
kluwerarbitration.com/2022/11/19/world-arbitration-update-legal-developments-in-sub-saharanafrica-africas-blooming/).
60.
" The ICSID Caseload - Statistics, Issue 2023-1 " , International Centre for Settlement of
Investment Disputes, 2023, p. 24.
61. See, Talkmore Chidede, " Investor-State dispute settlement in Africa and the AfCFTA Investment
Protocol " , Tralac Blog, The Trade Law Centre NPC, 11 December 2018 (https://www.tralac.org/blog/
article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html). The
reference to the UNCTAD data herein is from 2018 and therefore, limited to the 99 investor-State
dispute claims, which were then known to have been filed against African States since 1987. Updated
statistics are available at the beginning of this article.
62. Emilia Onyema, " African Participation in the ICSID System: Appointment and Disqualification
of Arbitrators " , ICSID Review, Volume 34, Issue 2, 2019, p. 370 (https://academic.oup.com/
icsidreview/article/34/2/365/5702181).
63. When the ICSID Convention opened for signature on 18 March 1965, Tunisia was the first
to sign it on 5 May 1965. The convention was ratified on 22 June 1966 and it came into force in
Tunisia on 14 October 1966.
64. Holiday Inns S.A. and Others v Kingdom of Morocco, ICSID Case No. ARB/72/1, 1972
(https://www.italaw.com/cases/3391).
65. Republic of Gabon v Société Serete S.A., ICSID Case No. ARB/76/1, 1976 (https://www.
italaw.com/cases/3565).
66. Adriano Gardella S.p.A. v Côte d'Ivoire, ICSID Case No. ARB/74/1, Award dated 29 August
1977 (https://www.italaw.com/cases/3503).
67. Klockner Industrie Anlagen GmbH and Others v United Republic of Cameroon and Société
camerounaise des engrais, ICSID Case No. ARB/81/2, Decision on Annulment of 3 May 1985.
Les Cahiers de l'Arbitrage 2023‑2
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https://www.parliament.gov.sl/uploads/acts/THE%20ARBITRATION%20ACT,%202022.pdf https://www.parliament.gov.sl/uploads/acts/THE%20ARBITRATION%20ACT,%202022.pdf https://arbitrationblog.kluwerarbitration.com/2022/11/19/world-arbitration-update-legal-developments-in-sub-saharan-africa-africas-blooming/ https://arbitrationblog.kluwerarbitration.com/2022/11/19/world-arbitration-update-legal-developments-in-sub-saharan-africa-africas-blooming/ https://arbitrationblog.kluwerarbitration.com/2022/11/19/world-arbitration-update-legal-developments-in-sub-saharan-africa-africas-blooming/ https://www.tralac.org/blog/article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html https://www.tralac.org/blog/article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html https://academic.oup.com/icsidreview/article/34/2/365/5702181 https://academic.oup.com/icsidreview/article/34/2/365/5702181 https://www.italaw.com/cases/3391 https://www.italaw.com/cases/3565 https://www.italaw.com/cases/3565 https://www.italaw.com/cases/3503

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

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