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ICSID in Africa –Institutional Perspective

IBA Conference“Mergers, Acquisitions and Inward Investment in Africa”

Lagos, Nigeria

Meg KinnearSecretary-General

November 8, 2013

ICSID MEMBERSHIP

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3© 2013 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement .

AFRICAN CONTRACTING

STATES

Growth of Foreign Direct Investment (FDI)

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FDI in high-income and developing economies, 1970-2009

Growth of FDI in Africa

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Inward FDI in Africa, 1980-2012

Source: UNCTADStat

Trends of BITS, DTTs, and “other IIAs”2000-2010

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PROFILE OF ICSID CASELOAD

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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 S

ept.

30,

201

30

10

20

30

40

50

60

14

1 2 1 2 1 2 41

41 2 1 2 3 3

8 8 8 914

18

30

2124

21

32

2023 25

33

40

27

1 1 1

1

1

1 1

2 3 2 3

16

2

2

4

12

1

4

8

1

2

ICSID Convention Arbitration Cases ICSID Convention Conciliation Cases

ICSID Additional Facility Arbitration Cases ICSID Additional Facility Conciliation Cases

GEOGRAPHIC DISTRIBUTION OF CASES

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South America28%

Central Amer-ica & the Car-

ribean6%

North America (Canada, Mexico & U.S.)5%

Eastern Europe & Central Asia

24%

Western Europe2%

Africa 23% - 7% North Africa & 16% sub-Saha-

ran Africa

Middle East3%South & East Asia & the Pacific

9%

AFRICA PARTIES IN ICSID PROCEEDINGS

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Egypt, Arab Republic ofCongo, Democratic Republic of

Algeria Guinea

CameroonCongo, Republic of

GabonTanzania

TunisiaBurundi

Central African RepublicEquatorial Guinea

LiberiaMorocco

Nigeria Zimbabwe

Côte d'Ivoire Gambia, The

Ghana Mali

Niger Senegal

TogoUganda

MadagascarBurkina Faso

KenyaRwanda

South AfricaSouth Sudan

Seychelles

0 5 10 15 20 25

229

55

44444

3333333

222222222

111111

Number of Cases

CASES INVOLVING NIGERIA

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Case Name Date Registered

Subject Matter BIT, Law or Contract

Outcome

Interocean Oil Development Co. & Interocean Oil Exploration Co. v. Nigeria(ARB/13/20)

9 September 2013

Oil exploration & production joint venture

Nigerian Investment Promotion Commission Act

Pending

Shell Nigeria Ultra Deep v. Nigeria(ARB/07/18)

26 July 2007 Hydrocarbon concession

Nigeria-Netherlands BIT

Settled & discontinued

Guadalupe Gas Products Corp. v. Nigeria(ARB/78/1)

20 March 1978 Production & marketing of liquefied natural gas

Contract between Parties

Settlement embodied in Award of 22 July 1980

BASIS OF CONSENT – OVERALL

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ASEAN Agreement for the Promotion and Protection of Investments

0.5%

Bilateral Investment Treaty (BIT)

65.0%

Dominican Republic-United States-Central America Free Trade

Agreement (DR-CAFTA)

1.0%

Investment Contract between the Investor

and the Host-State19.0%

Investment Law of the Host-State

7.0%

North American Free Trade Agreement

(NAFTA)3.0%

Agreement between the United States of

America and the Sul-tanate of Oman on the

Establishment of a Free Trade Area (Oman-U.S. FTA)

0.5%

Energy Charter Treaty (ECT)4.0%

BASIS OF CONSENT – AFRICAN PARTIES

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Bilateral Investment Treaty (BIT)

42.6%

Investment Contract between

the Investor and the

Host-State45.4%

Investment Law of the Host-State

12.0%

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ECONOMIC SECTORS – OVERALLFinance

14%Information &

Communication5%

Agriculture, Fish-ing & Forestry

5%

Oil, Gas & Min-ing

26%

Electric Power & Other Energy

5%

Water, Sanitation & Flood Protec-tion5%

Construction7%

Tourism5%

Other Industry19%

Transportation9%

Services & Trade2%

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ECONOMIC SECTORS – AFRICA

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Finance2%

Information & Commu-

nication2%

Agriculture, Fishing & Forestry

7%Oil, Gas & Mining

34%

Electric Power &

Other Energy

5%

Water, San-itation &

Flood Pro-tection

6%Construc-

tion9%Tourism

8%

Other Industry

13%

Transporta-tion9%

Services & Trade

5%

WHAT ARE THE OUTCOMES?

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Arbitration Proceedings under the ICSID Convention and Additional Facility Rules - Overall

Dispute decided by

Tribunal63%

Dispute set-tled or pro-

ceeding otherwise discontin-

ued37%

Disputes Decided by Arbitral Tribunals under the ICSID Convention and Additional Facility Rules - Overall

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Award deciding that the claims are mani-festly without legal

merit*1%

Award declining jurisdiction

23%

Award dismissing all claims30%

Award upholding claims in part or in full47%

Disputes Decided by Arbitral Tribunals under the ICSID Convention and Additional Facility Rules – Africa specific

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Award declining jurisdiction

14%

Award dismissing all claims29%

Award upholding claims in part or in

full57%

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

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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

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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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