Presented by Ucheora Onwuamaegbu * Arent Fox LLP Washington, DC| New York, NY | Los Angeles, CA| San Francisco, CA * Admitted in the United Kingdom and Nigeria only. Not engaged in the practice of law in the District of Columbia 3 November 2014 Dispute resolution trends in Africa/Asia Investment Treaties Third annual conference of the Atlanta International Arbitration Society (AtlAS)

Outline  Overview of bilateral investment treaties between African and Asian economies;  Dispute resolution provisions in the treaties of select economies in both geographical areas and any particular features of interest in the provisions; and  Proposals for future treaty negotiations 2

Overview of Africa/Asia BITs  About 100 BITs signed between African and Asian countries (few, if any, applicable multilateral investment treaties)  Large number of the BITs signed by major Asian countries with African States are not in force. (China – 60% of Africa BITs not in force compared to 21% of its general BIT population. For India, it is 81% compared to 17%)  African countries have signed fewer BITs with Asian countries. (Only 12 of Egypt’s 100 BITs are with Asia. For Nigeria it is 3 out of 24 - Taiwan, South Korea and China – not in force). For South Africa it is 3 out of 41- China, South Korea and Brunei Darussalam - not in force))  Little or no visible effect on investment flows between Africa and Asia 3

ISDR Provisions in Africa/Asia BITs  Similar Provisions as in BITs with other regions  Cooling off periods  Three months (Ghana/Malaysia; Japan/Mozambique);  Six months (Indonesia/Morocco; South Korea/ republic of Congo).  Domestic courts / fork in the road  Arbitration  Ad hoc (usually under UNCITRAL Rules)  Institutional (usually ICSID Convention and ICSID Additional Facility) 4

ISDR Provisions in Africa/Asia BITs - ARBITRATION  Promise of Consent v Consent (Ghana/Malaysia; Indonesia/Mozambique; Egypt/Japan)  Non-Membership of ICSID (India and Thailand in Asia; and in Africa: Ethiopia, Guinea Bissau, Namibia and South Africa)  Exhaustion of administrative remedies (China/Botswana)  Subject matter limitations (China/Ghana/ China/Egypt; China/Ethiopia)  Notifications under Article 25 of the ICSID Convention (China, 1993; Indonesia, 2012)  MFN Effect 5

Looking Ahead – Proposals for future BITs  Joint Negotiation Approach  Platform of existing regional economic groups is recommended. E.g., ASEAN. COMESA and WAEMU have each recently signed TIFAs with USA. –will facilitate coherence in approach –will help smaller countries obtain better treaty terms  Model BIT Template approach  SADEC Model of 2012 is an example. –It borrows from US and Canada models 6

Looking Ahead - Proposals for future BITs  SADEC Model BIT Template includes provisions that are still uncommon in Africa/Asia treaties, such as:  Requirement of mediation prior to arbitration (at instance of the state)  Non-disputing State Party participation  Amicus Curiae submissions  Transparency (publication of pleadings and awards; and open hearings)  Consolidation of proceedings;  Recognition of the possibility of an appellate mechanism in the future  Possibility of (counter-claim) proceedings by the State against investor for breach of obligations re corruption, environmental and labor standards, corporate governance issues, etc.  Use of regional arbitration centers, e.g., Cairo, Hong Kong, Lagos, Kigali, Kuala Lumpur, Mauritius, Singapore, 7

Summary  Many of the 100 Africa/Asia BITs are not in force. This does not appear to impede investment flow.  Africa/Asia BITs contain dispute resolution provisions  Dispute resolution options in Africa/Asia BITs include: domestic litigation; ad hoc arbitration, mostly under UNCITRAL Rules; and institutional arbitration, mostly under ICSID Rules.  Some dispute resolution provisions are subject to certain limitations  The diversity of dispute resolution approaches would suggest a need for cohesion. For this, joint negotiation of treaties from existing regional economic platforms, such as ASEAN and ECOWAS/WAEMU is recommended.  Also recommended, as an alternative, is the development of model treaty templates. An example is the 2012 COMESA template.  Future treaties should include provisions that encourage the use of regional arbitration centers to aid development of talent on national levels. 8