Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 50

AFRICA SPECIAL ISSUE
In the realm of investment treaty jurisprudence, the famous " Salini test " which is
now used to define the meaning of " investment " under the ICSID Convention was
the result of Morocco's 68
objection to the tribunal's ratione personae jurisdiction
in the dispute over compensation claims for a cancelled construction project.
This resulted in the universally accepted four-way criteria for determining what
constitutes an investment for the purposes of founding a BIT claim.
More recently, other cases involving African States have contributed to
expanding the discussion on certain aspects of international investment law. In
Bernhard von Pezold and others v Zimbabwe, the ICSID tribunal clarified the
conditions for an NGO's involvement as amicus curiae in arbitral proceedings on
the basis of human rights violations. 69
Mining et al v Kenya 70
In October 2018, the tribunal in Cortec
rejected the investors' claim, finding that the alleged
investment did not qualify as a protected investment under the UK-Kenya BIT as
the investors had failed to comply with Kenyan law in obtaining a mining licence.
The tribunal noted that " [n]on-compliance with the protective regulatory framework
was a serious matter. The Tribunal has already discussed at length the disregard
exhibited by the Claimants for compliance issues. " 71
Of crucial importance in this
case is that the BIT in question did not include an express requirement (found in
a number of other treaties) that investments be made in accordance with the law
of the host State. 72
The question as to whether each party should bear its own costs when a matter
is discontinued came up for discussion in Piero Foresti, Laura de Carli & Others
v The Republic of South Africa, 73
a case in which a group of European mining
investors submitted a request to ICSID for international arbitration against the
South African government, relying on the Italy-South Africa BIT and the Belgium
and Luxembourg-South Africa BIT. The claimants alleged that compliance with
the State's Mineral and Petroleum Resources Development Act, which required
that they divest 26% of their investments to historically disadvantaged South
Africans as part of South Africa's Black Economic Empowerment requirements,
amounted to expropriation and a breach of fair and equitable treatment. When
the claimants ultimately applied to discontinue the proceedings on the ground
that their claim had been 'settled' by South Africa's grant of new mining rights,
in directing the claimants to bear part of State's costs, the tribunal noted that
while claimants in investment arbitrations are, in principle, entitled to the costs
68. Salini Costruttori S.p.A. and Italstrade S.p.A. v Kingdom of Morocco, ICSID Case
No. ARB/00/4, Decision on Jurisdiction dated 23 July 2001, para 52 (https://www.italaw.com/sites/
default/files/case-documents/ita0738.pdf).
69. Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15,
Award dated 28 July 2015 (https://www.italaw.com/sites/default/files/case-documents/italaw7095_0.
pdf).
70. Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic
of Kenya, ICSID Case No. ARB/15/29, Award dated 22 October 2018 (https://www.italaw.com/sites/
default/files/case-documents/italaw10051.pdf).
71. Ibid., para 348.
72. See, Agreement between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the Republic of Kenya em 4597 for the Promotion and
Protection of Investments ( " UK-Kenya BIT " ), 13 September 1999 (https://investmentpolicy.unctad.
org/international-investment-agreements/treaty-files/1795/download).
73. Piero Foresti, Laura de Carli and others v Republic of South Africa, ICSID Case No. ARB(AF)/07/1,
Award dated 4 August 2010 (https://www.italaw.com/sites/default/files/case-documents/ita0337.pdf).
324
The Paris Journal of International Arbitration 2023‑2

https://www.italaw.com/sites/default/files/case-documents/ita0738.pdf https://www.italaw.com/sites/default/files/case-documents/ita0738.pdf https://www.italaw.com/sites/default/files/case-documents/italaw7095_0.pdf https://www.italaw.com/sites/default/files/case-documents/italaw7095_0.pdf https://www.italaw.com/sites/default/files/case-documents/italaw10051.pdf https://www.italaw.com/sites/default/files/case-documents/italaw10051.pdf https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/1795/download https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/1795/download https://www.italaw.com/sites/default/files/case-documents/ita0337.pdf

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

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