Arbitration

Egypt is facing its second dispute related to its water management sector. The claimant - Gesenu SPA (where the municipality of Perugia, owns 45% of the shares) filed a request for arbitration on 30 October 2020. The Claimant invoked the 1989 Egypt-Italy Bilateral Investment Treaty, one of the 115 BITs signed by Egypt. The Egypt-Italy BIT instrument was notably invoked twice in the ASA and Waghui ICSID cases.

This post engages with the Global Value Chain Development (GVCD) reports co-published by the World Trade Organization and the World Bank. It focuses on one central claim these reports have made about the development-related benefits of firms’ participation in GVCs, and on the policy recommendations that follow. The claim is that by inserting themselves into global value chains (GVCs) and technologically upgrading, firms can move up the value-added ladder and capture a greater share of the economic rewards, thereby also benefiting workers and their states in terms of employment, income and taxation.

Notably, in the accession process, Sierra Leone has exercised its right under Article I(3)[2] of the Convention to limit the scope of the Convention to arbitral awards made in the Territory of another Contracting State, to disputes arising out of legal relationships, whether contractual or not, which are considered commercial under the Laws of Sierra Leone and to arbitration agreements concluded and arbitral awards rendered after the date of its accession to the Convention.

Teyliom v. Benin, a new ICSID case has commenced following the appointment of its sole arbitrator on October 23, 2020. The request for arbitration in this case against Benin was filed this summer. This is the very first ICSID claim against Benin. What we know is that in 2017 Benin  faced an investment arbitration at the Stockholm Chamber of Commerce (“SCC”).

The traditional way of inserting finality clauses, which is usually crafted as “the decision of the Tribunal is final and binding” may not be useful to waive right to submit to the Bench for review. To sum up, according to the draft proclamation, arbitral awards are final but subject to review by the Bench unless expressly agreed to waive their right for review.

In Federal Republic of Nigeria v. Process & Industrial Developments Limited (‘Nigeria v. P&ID’),[1] the English court was faced with an application for extension of time to challenge an arbitration award delivered well over two years before the application. The court granted the application despite the delay, on the basis that there was a strong prima facie case of fraud involved. This paved the way for a thorough inquiry into the allegations of fraud, which if proven, would upset the validity and finality of the arbitration award. This article will review the judgment of the court in Nigeria v. P&ID and highlight its contribution to jurisprudence on determining the point at which an allegation of illegality will be allowed to threaten the finality of an award.

“Africa’s riches” include its law students, and Africa has the means to unleash that resource for its own benefit and the world’s. To close the circle and exhort the law students and young lawyers of Africa: seize the opportunities, face the challenges, and remember, Nelson Mandela’s words; I never lose. I either win or learn.

The present state of international economic law leaves much to be desired. Anchored by the multilateral General Agreement on Tariffs and Trade, which led to the creation of the World Trade Organization, and complemented by a vast network of bilateral and multilateral investment treaties and free trade agreements, international economic law is drawn from diffuse sources. Additionally, the WTO Dispute Settlement Body and Appellate Body, which interpret the GATT provisions, and arbitral tribunals, which interpret investment protection agreement provisions, shape the content of international economic law. However, the patchwork of treaty text and dispute settlement rulings into a body of law is unraveling.

Drawing from comparative experiences, it is opined that a systematic academic study of private international law might create the required strong political will and institutional support (which is absent at the moment) that is necessary to give private international law its true place in Africa.

Access to justice for victims of business and human rights in the ISA will be an strong index to measure the realization of the sustainable development goal on access to justice. Goal 16 specifically provides that states should promote the rule of law at the national and international levels and ensure equal access to justice for all. Reforming the ISA to ensure equal access between states, investors, and local communities will be an important step in this direction.