ICSID in Africa –
Institutional Perspective
IBA Conference
“Mergers, Acquisitions and Inward Investment in Africa”
Lagos, Nigeria
Meg Kinnear
Secretary-General
November 8, 2013
1
ICSID MEMBERSHIP
© 2013 by International Centre for Settlement of Investment Disputes.
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2
AFRICAN
CONTRACTING
STATES
© 2013 by International Centre for Settlement of Investment Disputes.
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3
Growth of Foreign Direct Investment (FDI)
FDI in high-income and developing economies, 1970-2009
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4
Growth of FDI in Africa
Inward FDI in Africa, 1980-2012
Source: UNCTADStat
© 2013 by International Centre for Settlement of Investment Disputes.
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5
Trends of BITS, DTTs, and “other IIAs”
2000-2010
© 2013 by International Centre for Settlement of Investment Disputes.
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6
PROFILE OF ICSID CASELOAD
60
50
2
8
40
4
4
1
1
1
30
1
2
6
1
1
2
2
1
20
40
2
10
1
1
2
1
2
1
4
1
4
1
2
1
2
18
21
24
21
20
23
27
25
14
1
1
2
2
8
3
8
8
9
3
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
to Sept. 30, 2013
1
4
3
3
33
32
30
0
1
ICSID Convention Arbitration Cases
ICSID Convention Conciliation Cases
ICSID Additional Facility Arbitration Cases
ICSID Additional Facility Conciliation Cases
© 2013 by International Centre for Settlement of Investment Disputes.
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7
GEOGRAPHIC DISTRIBUTION OF CASES
North America
(Canada, Mexico & U.S.)
5%
Eastern Europe &
Central Asia
24%
Central America & the
Carribean
6%
Western Europe
2%
South America
28%
Africa 23% 7% North Africa & 16%
sub-Saharan Africa
South & East Asia & the
Pacific
9%
© 2013 by International Centre for Settlement of Investment Disputes.
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Middle East
3%
8
AFRICA PARTIES IN ICSID PROCEEDINGS
1
1
1
1
1
1
Seychelles
South Sudan
South Africa
Rwanda
Kenya
Burkina Faso
Madagascar
Uganda
Togo
Senegal
Niger
Mali
Ghana
Gambia, The
Côte d'Ivoire
Zimbabwe
Nigeria
Morocco
Liberia
Equatorial Guinea
Central African Republic
Burundi
Tunisia
Tanzania
Gabon
Congo, Republic of
Cameroon
Guinea
Algeria
Congo, Democratic Republic of
Egypt, Arab Republic of
2
2
2
2
2
2
2
2
2
0
© 2013 by International Centre for Settlement of Investment Disputes.
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3
3
3
3
3
3
3
4
4
4
4
4
5
5
5
9
10
Number of Cases
22
15
20
25
9
CASES INVOLVING NIGERIA
Case Name
Date
Registered
Subject Matter BIT, Law or
Contract
Outcome
Interocean Oil
9 September
Development Co. 2013
& Interocean Oil
Exploration Co. v.
Nigeria
(ARB/13/20)
Oil exploration & Nigerian
production joint Investment
venture
Promotion
Commission Act
Pending
Shell Nigeria
Ultra Deep
v. Nigeria
(ARB/07/18)
Hydrocarbon
concession
NigeriaNetherlands BIT
Settled &
discontinued
Production &
marketing of
liquefied natural
gas
Contract
Settlement
between Parties embodied in
Award of 22 July
1980
26 July 2007
Guadalupe Gas
20 March 1978
Products Corp. v.
Nigeria
(ARB/78/1)
© 2013 by International Centre for Settlement of Investment Disputes.
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10
BASIS OF CONSENT – OVERALL
Agreement between
the United States of
America and the
Sultanate of Oman on
the Establishment of a
Free Trade Area
(Oman-U.S. FTA)
0.5%
Energy Charter Treaty
(ECT)
4.0%
North American Free
Trade Agreement
(NAFTA)
3.0%
Investment Law of the
Host-State
7.0%
ASEAN Agreement for
the Promotion and
Protection of
Investments
0.5%
Bilateral Investment
Treaty (BIT)
65.0%
Investment Contract
between the Investor
and the Host-State
19.0%
Dominican RepublicUnited States-Central
America Free Trade
Agreement (DR-CAFTA)
1.0%
© 2013 by International Centre for Settlement of Investment Disputes.
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11
BASIS OF CONSENT – AFRICAN PARTIES
Investment Law
of the Host-State
12.0%
Bilateral
Investment
Treaty (BIT)
42.6%
Investment
Contract
between the
Investor and the
Host-State
45.4%
© 2013 by International Centre for Settlement of Investment Disputes.
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12
ECONOMIC SECTORS – OVERALL
Services & Trade
2%
Finance
14%
Transportation
9%
Information &
Communication
5%
Agriculture, Fishing
& Forestry
5%
Oil, Gas & Mining
25%
Other Industry
18%
Tourism
5% Construction
7%
© 2013 by International Centre for Settlement of Investment Disputes.
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Electric Power &
Other Energy
5%
Water, Sanitation &
Flood Protection
5%
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ECONOMIC SECTORS – AFRICA
Agriculture,
Fishing &
Forestry
Information & 7%
Oil, Gas &
Mining
34%
Communication
2%
Finance
2%
Electric Power &
Other Energy
5%
Services &
Trade
5%
Water, Sanitation
& Flood
Protection
6%
Transportation
9%
Other Industry
13%
© 2013 by International Centre for Settlement of Investment Disputes.
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Construction
9%
Tourism
8%
14
WHAT ARE THE OUTCOMES?
Arbitration Proceedings under the ICSID Convention and
Additional Facility Rules - Overall
Dispute
decided by
Tribunal
63%
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Dispute
settled or
proceeding
otherwise
discontinued
37%
15
Disputes Decided by Arbitral Tribunals under the ICSID
Convention and Additional Facility Rules - Overall
Award dismissing all
claims
29%
Award declining
jurisdiction
23%
Award deciding that
the claims are
manifestly without
legal merit*
1%
Award upholding
claims in part or in full
47%
© 2013 by International Centre for Settlement of Investment Disputes.
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16
Disputes Decided by Arbitral Tribunals under the ICSID
Convention and Additional Facility Rules – Africa specific
Award dismissing all
claims
29%
Award declining
jurisdiction
14%
Award upholding
claims in part or in
full
57%
© 2013 by International Centre for Settlement of Investment Disputes.
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17
Special Features of ICSID Convention Arbitration
•
•
•
•
•
•
Impartial and delocalized facility
Immunities for participants
Secretariat expertise
Cost-effective fee structure
Access to hearing facilities internationally
Transparent proceedings available
© 2013 by International Centre for Settlement of Investment Disputes.
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18
Special Features of ICSID Convention - Awards
• Awards final & binding – no appeal in local courts
• Member States must recognize monetary awards
without further process
• Monetary awards enforceable as a final judgment in
any Contracting State
© 2013 by International Centre for Settlement of Investment Disputes.
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ICSID
1818 H Street NW
Washington, DC 20433
Tel: + 1 (202) 458-1534
Fax: + 1 (202) 522-2615
www.worldbank.org/icsid
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