Africa Arbitration Review

OCTOBER 2020 AFRICA ARBITRATION REVIEW

Welcome to the first edition of our Africa Arbitration Review

We are delighted to share with you a range of articles on international arbitration across the continent. Africa continues to make its mark in the world of international arbitration and has been the home of some innovative developments in recent months. No sooner was the world locked down with confinement measures in response to COVID-19, than the African Arbitration Academy launched its Protocol on Virtual Hearings in Africa. This is a great example of the energy, enthusiasm and skills which place African arbitration lawyers at the heart of the global arbitration community. African arbitration lawyers are also playing an essential role on a range of key hot topics in international arbitration, from shaping the agenda to achieve better diversity to innovative reforms in the field of investment arbitration.

In this new series, we will highlight some of the major developments for international arbitration across Africa and give you an insight into what to expect in coming months. As always, we welcome your questions or feedback.

T. Alexander Brabant Compiled and edited by: Ben Sanderson Head of International Arbitration – Africa Paris +33 6 11 57 52 77 [email protected]

Unique coverage Award winning Africa team With DLA Piper Africa offices in 20 countries DLA Piper Africa comprises offices across all the accross the continent, we can offer our clients regions in Africa and provides an outstanding unrivalled coverage in Africa. This comprehensive national and regional service offering integrated offering is the result of over 15 years of with DLA Piper globally. We are one of the most commitment and experience in Africa combined active law firms on the continent with with long-standing relationships with national multi-disciplinary teams of lawyers working firms, many dating back to the 1990s, which have together across Africa. This is reinforced by now been brought together in DLA Piper Africa. DLA Piper Africa being ranked Band 1 for five years by Chambers & Partners Africa-Wide Networks.

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Table of contents

Ethiopia ratifies the New York Convention ��04

A timely intervention: The protocol on virtual hearings in Africa by the association of young arbitrators from a drafter’s perspective ��06

The new OHADA arbitration act: Key issues to be aware of ��09

Arbitration in Burundi: Opportunities and challenges ��15

AfCFTA and the upcoming protocol on investment: What can investors expect? ��17

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Ethiopia ratifies the New York Convention

Introduction In the well-known Paulos Papassinus case, the Federal Since the appointment of its new Prime Minister Supreme Court denied an application for enforcement (Abiy Ahmend) in 2018, Ethiopia has witnessed a of a Greek judgment because the applicant failed to series of broad-ranging economic and legal reforms prove reciprocity3. The Supreme Court found that a aimed at boosting the economy by encouraging party would need to establish the existence of a judicial foreign direct investment (FDI). In view of this, assistance treaty signed between Ethiopia and the other on 13 February 2020, the Ethiopian Government State. Although the decision rendered by the Supreme approved the ratification of the 1958 Convention on Court relates to foreign judgments and not to arbitral the Recognition and Enforcement of Foreign Arbitral awards, it was a widely considered that the courts would Awards, commonly known as the New York Convention1. reach a similar conclusion regarding the enforcement In doing so, Ethiopia becomes the 33rd African and the of foreign arbitral awards. While court decisions in 162 international State to sign the New York Convention. Ethiopia (save those of the cassation bench) do not create precedent, commentators agreed that there Implications of the ratification was a significant risk that other courts would follow the of the New York convention decision in the Paulos Papassinus case. Ratifying the New York Convention is a significant step forward for Ethiopia and underpins the country’s Ethiopia is already the recipient of significant flows ongoing efforts to attract greater foreign investment. of FDI, notably in the infrastructure sector, and the The adoption of the uniform framework for the decision to bring its recognition and enforcement recognition and enforcement of arbitral awards will procedures into line with international best practice certainly help to improve the country’s profile as a is a welcome development. Ethiopia has adopted business-friendly jurisdiction. the New York Convention subject to two common reservations: (i) on the basis of reciprocity to the The previous regime2 for enforcement of foreign recognition and enforcement of awards made only judgments and arbitral awards contained a number in the territory of another contracting State, and of grounds which were considered obsolete and (ii) its application only to differences arising out of legal ambiguous. The decision to adopt the New York relationships, whether contractual or not, which are Convention therefore provides international parties with considered as commercial under the laws of Ethiopia. greater certainty and brings the Ethiopian arbitration Ethiopian law does not make a distinction between civil ecosystem into line with international standards. and commercial matters and therefore it would be left to the discretion of the enforcing court to determine One of the most significant stumbling blocks under whether the dispute is commercial in nature or not. the old system was the requirement for reciprocity to Furthermore, the New York Convention will only apply to be demonstrated in order to enforce a foreign arbitral arbitration agreements made after the date of Ethiopia’s award. In other words, in order for a party to enforce a accession. Existing long terms contracts will therefore foreign arbitral award in Ethiopia, the party would have not benefit from the new regime absent an amendment to show that the State where the arbitral award was or restatement of the arbitration agreement. made would recognize and enforce an arbitral award made in Ethiopia on the basis of reciprocity. As Ethiopia was not a party to the New York Convention, this rule meant that it was virtually impossible to enforce a foreign arbitral award in Ethiopia.

1 The New York Convention will come into force in Ethiopia on 22 November 2020.

2 The 1965 Civil Procedure Code of Ethiopia (the “Code”), the Federal Courts Proclamation No. 25/1996 and its amendment Proclamation No. 454/2005.

3 In the Matters of Paulos Papassinus, Federal High Court, Civil Case No.1623/1980; and in the Matters of Paulos Papassinus, Federal Supreme Court, Civil Appeal Case No.1769/88.

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Conclusion consultation. Arbitration practitioners in Ethiopia will Addis Ababa is well-placed to become a hub for be keen to ensure that any new law is in line with international arbitration in Africa. Addis is home to both international best practice and some commentators the African Union and the United Nations Economic are calling for the adoption of the UNCITRAL Model Commission for Africa, and has many of the facilities Law. A further update on progress with this new law is and international transport connections which are expected later this year. the envy of other African cities. With these latest reforms, Addis has taken a significant step forward Authors not only in improving Ethiopia’s profile for the ease of Ben Sanderson doing business, but also to set itself apart as a hub for Of Counsel, Global Practice Manager arbitration in Africa. for International Arbitration Madrid The next crucial step for Ethiopia will be to introduce +34 661 550 381 a comprehensive law governing arbitration, which [email protected] at present is regulated by the Civil Procedure Code. The Ethiopian Government has produced a draft Erika Tesfaye Arbitration Proclamation which is currently under Associate Addis Ababa +251 115 159 798 [email protected]

In March 2020, Ben Sanderson (Of Counsel) was invited to deliver the key note address at the 2nd NCIA International Arbitration & ADR Conference held in Mombasa, Kenya. AFRICA ARBITRATION REVIEW

A timely intervention: The protocol on virtual hearings in Africa by the association of young arbitrators from a drafter’s perspective

Concerned about the effects of the COVID-19 pandemic obsolete telecommunications infrastructure), and to on Africa’s dispute resolution landscape, the Association provide for the use of affordable and presently available of Young Arbitrators (AYA), an association of young technology, software and equipment during arbitral arbitration practitioners in Africa under 40 years of proceedings. Importantly, it would also have to provide age, launched its Protocol on Virtual Hearings in Africa for cybersecurity measures or applicable standards at (“the Protocol”) in April 2020. AYA was formed in 2015 par with other established institutions, with a view to with a mission to provide a platform for the young safeguarding the integrity of virtual hearings. members of the African arbitration community to • Preliminary considerations and logistics – meet, exchange ideas and learn from peers and more notwithstanding the differences in advancement experienced arbitrators/arbitration practitioners. in telecommunication and high-speed internet capabilities in different African countries, it had Hailed as a “timely intervention” and nominated by to be considered whether or not there should be peers for the GAR “Special recognition award for a minimum quality standard, and where a party response to the coronavirus pandemic”, the Protocol did not have access to those minimums, it had to was drawn up by a drafting committee comprising be a consideration whether the parties should, of 11 arbitration practitioners from various African in fact, consider other arbitral venues where such countries, including DLA Piper Africa Partner, minimum quality standards could be maintained. Ronald Mutasa (Zimbabwe). Further, it was considered whether technical support personnel should be in attendance throughout the Whilst the Protocol is not the first of its kind in the hearing process. arbitration space, its unique proposition is that it seeks to address specific challenges and circumstances that • Hearing Protocol, Infrastructure and Technical may arise in relation to remote hearings in Africa for Standard – it was considered whether to prescribe the African practitioners, African arbitration tribunals and minimum bandwidth for internet connection, including African governments. identifying venues that have excellent internet access (50 Mbps minimum); and whether there had to be an Some of the issues specific to Africa that naturally ethernet cable connection rather than relying on Wi-Fi. concerned the drafting committee included: • Conduct of the virtual arbitral hearings – it was accepted that, notwithstanding preparations and • The purpose of the Protocol – it was accepted that minimum quality standards for internet connectivity, the health and safety considerations, as well as it could still be possible for video conferencing to be travel restrictions, in many African countries have poor. In such instances, it was considered whether the significantly disrupted arbitration hearings and made tribunal may terminate the video conference at any time it impossible to convene physically in a single location. if it deems the video conference so unsatisfactory or if it Due to the COVID-19 induced situation, parties, is concerned that the witness is being assisted, or that it counsel and tribunals should, therefore, consider would otherwise be unfair to either party to continue. whether to proceed with a virtual hearing. However, the Protocol also had to be drafted to be relevant • Security and privacy considerations – it was a after the effects of the pandemic have subsided. consideration whether parties or witnesses should be able to connect from home offices bearing in • The objectives of the Protocol – it was accepted that for mind that confidentiality could be difficult to monitor the Protocol to be relevant, it would have to promote and witnesses could be easily compromised in the application of technology in arbitral proceedings such circumstances. (this in itself is a possible challenge due to poor or

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Following intense discussions and feedback from the 3. Where any of the parties do not have access to the Technical Review Committee chaired by the Dean of technology, software, and equipment to be used the African Arbitration Academy (a sister organization for virtual hearings, or cannot meet the minimum to AYA) Prof. Dr. Mohamed Abdel Wahab (Egypt) and standards, then such parties may “solicit arbitral with committee members comprising distinguished institutions or other centers in Africa, suitable to the arbitration practitioners in the US, the UK and Africa, parties, that can offer their venues for conducting AYA unveiled the Protocol in April 2020. virtual hearings. The technological and connection services offered by arbitral institutions or centers are The Protocol is unique in that it recognizes the need often reliable and can provide the necessary equipment, to seek the buy-in of African governments. As such, software, high-quality internet connection, and minimal it acknowledges that governments may have their own chance of signal interruptions.” advisory notes that parties in a jurisdiction may be 4. To dispense with frivolous challenges to arbitral required to adopt. Further, the Protocol also encourages awards rendered in cases where virtual hearings African governments to “make express references to were held, where there is no agreement between virtual hearings in arbitration rules and laws, and to serve parties on the use of virtual hearings and there are as guiding standards, principles, and provisions to be no provisions expressly regulating such hearings adopted by arbitral institutions or governments in Africa under the applicable procedural rules governing when drafting their arbitration rules and laws.” the arbitration, parties should, prior to the hearing and to the extent necessary, enter into a Pre-Virtual The Protocol is divided into distinct sections covering Hearing Agreement to consent expressly to the preliminary considerations including pre-hearing use of virtual hearings as per the draft in Annex agreements; conduct of virtual hearings and II of the Protocol. In the alternative, the Tribunals presentation of evidence; security and privacy should be empowered, where appropriate and after considerations and hearing protocol, infrastructure and due consultation with the parties, to direct that the technical standards. The Protocol also contains a series evidentiary hearing be conducted virtually as per the of annexures that address Minimum Cybersecurity draft procedural order in Annex IV of the Protocol. standards, the Model Africa Arbitration Academy Arbitration Clause (incorporating the virtual hearing 5. Regarding conduct of the virtual hearings, it is option), the Model Africa Arbitration Academy Virtual recommended that witnesses should give evidence Hearing Agreement, the Tribunal Issued Cyber Protocol under the arbitral tribunal’s direction and the arbitral and the Witness Oath specific to virtual hearings. tribunal should be empowered to terminate the video conference at any time if it deems the video The principle recommendations in the Protocol include: conference so unsatisfactory or that it is unfair to either party to continue. 1. The parties and the arbitral tribunal must agree in 6. Whilst the possibility of home offices being used advance, as far as possible, upon all the procedures, to conduct virtual hearings was not dismissed schedules and deadlines to be followed during the entirely, the Protocol recommends that the parties virtual hearings. should ensure that the rooms used to connect to 2. The parties and the arbitral tribunal must agree in virtual hearings either at their offices or in such advance, as far as possible, upon all the technology, other locations are well equipped with any equipment software, equipment, and platform to be used by all necessary for the virtual hearing, are isolated and participants in the virtual hearings. All technology, inaccessible to non-participants or unauthorized software, equipment, and the platform to be used in persons during the virtual hearing and soundproofed virtual hearings should meet the minimum standards to the extent possible. detailed in Annex I of the Protocol. For instance, full network security, audio and video encrypted at 128-bits AES or as recommended/verified by IT support should be required, and the parties, the tribunal, and all other participants must not join the hearing using an unsecured/public Wi-Fi connection.

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7. Regarding the technical standard for holding virtual In conclusion, the Protocol is an excellent example of hearings, the Protocol leaves it to the parties to innovation in international arbitration being led from connect to the virtual hearing platform through Africa. The Protocol is being heralded as an important locations with reliable internet connectivity that offer step towards virtual hearings being accepted as the seamless and smooth streaming and communications new norm in Africa and beyond, and its careful drafting during the virtual hearing. It is further recommended should help it stand the test of time well into the post that the minimum technical requirements and any COVID-19 pandemic period. back-up measures or contingency plan(s) must be agreed between the parties and the arbitral tribunal. Author 8. Regarding the audio/video conferencing platform, Ronald Mutasa rather than being prescriptive, the Protocol Partner recommends that any such agreed audio/video Harare conferencing platform be licensed with adequate +263 242 746 787 security and privacy standards, and that the [email protected] technical setup should be “secure and user friendly.” Notwithstanding, such platform should also “meet the requirements of all relevant or applicable laws”.

DLA Piper Africa lawyers, Ronald Mutasa (Partner at Manokore Attorneys, Harare, Zimbabwe) and Mahamat Atteib (Counsel at Geni & Kebe, Dakar, Senegal) have been identified by the Association of Young Arbitrators as being among Africa’s 50 Most Promising Arbitration Practitioners. Congratulations to both on the well-deserved accolade.

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The new OHADA arbitration act: Key issues to be aware of

In 2017, OHADA1 adopted a new Uniform Act on investment treaties (BITs) and investment codes as new Arbitration (UAA), repealing the previous Uniform Act bases for arbitration. This step, provided for in the UAA, dated 11 March 1997. This reform is part of an effort to is reiterated by the new CCJA Arbitration Rules, which promote and consolidate alternative methods of settling expressly authorize the Court to administer arbitration disputes, further illustrated by a new Uniform Act on proceedings based on BITs or national investment laws. mediation being adopted, and the Common Court of Justice and Arbitration (CCJA) Rules of Arbitration It should be noted that, in practice, the Court of being revised. Arbitration of the CCJA has accepted several investor- state disputes on the basis of an arbitration agreement, The new Arbitration Act aims to make the OHADA space particularly in the absence of specific, relevant common more attractive for dispute resolution. This paper sets provisions. Therefore, the new Act only crystallizes and out the main aspects of this reform, complemented completes the evolution of the Court's internal practices by the new CCJA arbitration rules and the Uniform Act and that of other forums such as ICSID, which have on Mediation. now freed arbitration agreements from being the sole pathway to arbitration. Arbitration under the UAA and Security, flexibility and efficiency seem to be the the CCJA forum offers a big comparative advantage in essential aim of this new Act. This applies to that it is close to the host countries of the investments, the different phases of the process of accessing geographically and from the point of view of the OHADA arbitration, from the beginning of the start legal system with which they are familiar. claim, and through the arbitration process. Therefore, the OHADA law of arbitration (through both Expanding OHADA arbitration to its normative part (UAA) and its institutional body (CCJA)) investment arbitration is well positioned in the field of investment arbitration. In addition to the traditional openness of OHADA law If accepting legal instruments relating to investments to any arbitration having its seat in one of the OHADA and establishing certain correlative, institutional States and to legal persons under public law, the reforms guarantees by the CCJA characterize a certain openness extend the scope of the OHADA arbitration law to include of OHADA arbitration, it is important to consolidate this investment arbitration. Investment arbitration is usually trend as much with substantial arguments (definition defined as an arbitration forum that hosts disputes of the notions of investment, investor, etc.) as with between a State or one of its entities, and a foreign procedure (transparency of procedure, admission of private entity carrying out an investment in that State. amicus curiae, etc.).

Although the creation of the International Centre for the Settlement of Investment Disputes (ICSID) is part of this approach, other forums have gradually opened up to this issue too. It is in this light that the UAA includes bilateral

1 OHADA is: ‘’Organisation pour l’Harmonisation en Afrique du Droit des Affaires’’ (Organisation for the Harmonisation in Africa of Business Laws), which is

a uniform set of business laws and implementing institutions adopted by 17 states in West and Central Africa.

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Distribution of cases registered in FY2019 by Region

2% 8% North America (Canada, Mexico & U.S.)

25% Eastern Europe & Central Asia

Western Europe 21%

Sub-Saharan Africa

Middle East & North Africa 10% 6% South & East Asia & The Pacific

South America 11% 17% Central America & The Caribbean

Statistics showing State parties by region in ICSID arbitration. Africa is one of three major regions participating in ICSID arbitration. Source: ICSID Annual Report, 2019.

2.3% 5.2% North & West Europe 29.5% 8.2% South & East Asia and The Pacific

Latin America & Caribbean 9.1% Central & West Asia Breakdown of parties by Region North America (USA & Canada)

Central & East Europe 10.8% Sub-Saharan Africa

19.4% North Africa

15.5%

Statistics showing the participation of African parties in ICC arbitration. Source: ICC, 2019 Statistics.

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The extension of OHADA rules taken back in the form of an award of agreement by the to mediation arbitral tribunal. This provision, which demonstrates The tempting offer of OHADA arbitration does not the effectiveness of OHADA mediation and the stand in the way of other alternative dispute resolution institutional dialogue between methods of dispute methods. It does not forbid prior dispute resolution. resolution, also applies to mediation proceedings If such situation should occur, the Court will suspend initiated without arbitration being in progress. proceedings pending the completion of the dispute resolution step (or its failure to do so, if necessary.) The arbitration proceedings: reliability, flexibility The example of mediation is a good one, especially as and promptness mediation is now the subject of uniform legislation in The new OHADA Arbitration Act presents a reliable, the OHADA space. At first glance, it should be noted that flexible and prompt arbitration procedure. this does not apply to mediation undertaken voluntarily by an arbitral tribunal for the purpose of providing It offers arbitration with institutional support from CCJA. an amicable settlement of a dispute. The Uniform Act Without the parties having to opt for the CCJA arbitration on Mediation (UAM) governs institutional or ad hoc rules, they have the opportunity to benefit from the mediation, which is conventional, or which involves support of this institution. This is the case if no process the intervention of a third party, an independent of challenge is provided for by the parties or carried dispute settlement procedure, or a prior method of out by the competent court within 30 days. If so, the arbitration. In the latter case, supplementing the UAM, challenge application may be brought before the CCJA. the UAA unequivocally states that ''no arbitral or judicial proceeding relating to a dispute already arising, or The arbitral procedure’s reliability is assured by the which may arise later, is given effect by the arbitral obligation of independence and legal dedication of tribunal or the state court until the conditions that go arbitrators. In particular, these requirements make with it have been met.” it possible to avoid conflicts of interest and leads to arbitrators recusing themselves if necessary. This procedure does not preclude, according to the text, The parties also enjoy equal treatment during the initiating parallel proceedings for provisional purposes, proceedings, allowing them to assert their respective or purposes that cannot be considered as a waiver or rights. The litigant parties are received regardless termination of the mediation. It is compulsory to execute of their quality or status. The reliability and flexibility the agreement resulting from the mediation and it may of the procedure are also measured by the openness be enforced or endorsed by the competent court and in using international law as the applicable law in

Arbitration in Africa is a key theme at Paris Arbitration Week 2020

Michael Ostrove, Global Co-Chair for International Arbitration, moderated a panel discussion on ISDS in Africa as part of Paris Arbitration Week (6 July 2020). The panellists were Prof. Dr. Mohamed Abdel Wahab, Hamed El-Kady, Achille Ngwanza and Mouhamed Kebe, managing partner of DLA Piper Africa firm, Geni & Kebe.

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case the parties are silent on the choice of law. various remedies. This provisional enforcement remains From the point of view of procedural rules, the valid even when an action for annulment is brought parties may refer to the rules of an arbitration centre against the award in question. of their choice or determine a procedural law that suits them. These provisions show the opening of As a general rule, the arbitration award must be enforced. the “OHADA space” to “non-OHADA systems” and The decision on the application for enforcement is to international best practices in arbitration. obtained before the competent court within 15 days. It is deemed acquired in the case of silence of the court. The promptness of the arbitration procedure is It is subject to a recourse of annulation (cassation) only demonstrated through the competitive deadlines before the CCJA and only in case it is negative. proposed at all stages of the procedure. If the parties disagree, or there are insufficient contractual terms on The award rendered by the CCJA is not subject to the appointment of the arbitrators, the parties have opposition, appeal or judicial review. It may, however, between 30-75 days to do so with the intervention, be subject to a review or an action for annulment before if necessary, of the competent court. Likewise, the competent court. the arbitration tribunal must be constituted within six months, unless otherwise agreed. The parties The judgement rendered by the said court is subject to nevertheless have the option to extend the legal or review proceedings only before the CCJA. The flexibility contractual period. More generally, the parties are of the OHADA arbitration procedure results from the encouraged to act with speed and loyalty in conducting fact that waiver clauses to the action for annulment may proceedings. They must refrain from using delay tactics, be provided by the parties, provided that they are not in otherwise they risk a sanction and/or closure of the conflict with international public policy. proceedings, if necessary. The new Act therefore reinforces the OHADA space The outcome of the procedure: as a very attractive place of international arbitration, safety and efficiency especially for investors doing business, or planning to do business in Africa. The new OHADA arbitration Act guarantees security and efficiency in the arbitration procedure. Author

Whether it is the result of an agreement between the Mouhamed Kebe parties during the proceedings or a decision arising Managing Partner from the court hearing, the arbitral award has the Dakar authority of res judicata as soon as it is given. This award CCJA Arbitrator, Member of the may be protected by a provisional enforcement to allow Court of Arbitration of the ICC the parties to benefit quickly from the effects of the +221 338 211 916 decision, without affecting the full judgment, including [email protected] WWW.DLAPIPER.COM

Michael Ostrove, Global Co-Chair of International Arbitration, and Mouhamed Kebe, managing partner of DLA Piper Africa firm, Geni & Kebe were both invited to speak at the ICC Arbitration Day held in Dakar, Senegal on 7 February 2020.

In the second event hosted by DLA Piper as part of Paris Arbitration Week, Maxime Desplats (Counsel, Paris) moderated a panel discussion on “20 years of OHADA.” Many thanks to panelists Mamadou Ismaïla Konate, Emilia Onyema and Narcisse Aka for contributing to the lively discussion. AFRICA ARBITRATION REVIEW WWW.DLAPIPER.COM

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Arbitration in Burundi: Opportunities and challenges

Introduction • Law N. 1/24 dated 10 September 2008, sets out the The Republic of Burundi offers a legislative and investment code in Burundi and provides for the right administrative framework to businesses and foreign to arbitration, especially in its article 17(2) which states investors involved in both domestic and international “[a]t the investor’s option, the dispute can be settled transactions which allows settlement of commercial through internal institutional arbitration or international or investment disputes through arbitration. Generally, arbitration. International arbitration will comply with arbitration offers parties a system of dispute the rules of the International Center for the Settlement resolution which promotes independent and impartial of Investment Disputes (ICSID) in force at the time of decisions that are rendered quickly (as compared making the investments to which the dispute is linked.” to other forms of dispute resolution) and whose • The 1958 New York Convention on the Recognition enforcement is facilitated by the New York Convention and Enforcement of Foreign Arbitral Awards which for the Recognition and Enforcement of Arbitral streamlines the recognition and enforcement of Awards. Understanding the arbitration framework in arbitral awards was ratified by Burundi on place in Burundi can thus provide some comfort to 9 May 2014. businesspeople and investors interested in developing their activities in Burundi. This is all the more so since • The Convention on the Settlement of Investment the credibility of the public sector in Burundi, including Disputes between States and Nationals of Other the judiciary, is often called into question due to the States (the ICSID Convention) was ratified by Burundi prevalence of corruption in the country (in 2019, on 5 December 1969. Burundi ranked 165 out of 180 on the Corruption • International treaties, such as the six bilateral Perceptions Index published by Transparency investment treaties currently ratified by Burundi International). Moreover, inconsistency in the speed offering protections to investments in Burundi for of rendering court judgments can also swing the investors from Belgium-Luxembourg, Germany, pendulum in favour of choosing arbitration to settle Kenya, Mauritius, Netherlands, and the UK. disputes in Burundi. Burundi centre for arbitration In this article, we will set out the legal framework and conciliation relating to arbitration in Burundi, describe the arbitral To provide administrative services to arbitrations institution in Burundi and consider some possible in Burundi, the Burundi Centre for Arbitration and future developments. Conciliation (Centre Burundais d’Arbitrage et de Conciliation) (CEBAC) was set up in 2004 and acts as the Legal framework for arbitration only arbitration institution in the country. It administers in Burundi arbitrations in Burundi offering parties their choice of • Law N. 1/10 dated May 13 2004, which in its arbitrators from a preapproved CEBAC list (although if articles 337-370 regulates the principles governing a party seeks to appoint a non-pre-approved arbitrator, arbitration in Burundi, including in particular it can do so after obtaining approval from CEBAC). defining the general notions of arbitration (articles 337-345), regulating the arbitration agreement It is fair to say that the majority of foreign parties choose (articles 341-343), the arbitration clause (articles an international arbitration centre for their disputes, 343-345), the form of arbitration (articles 346-351), typically the Kigali International Arbitration Centre in the powers of arbitrators (articles 352-357), including neighbouring Rwanda, or one of many other reputed the power to render interim measures (article 357) international centres. and defining the rules applicable to the arbitration procedure and the substance of the dispute (articles 358-361). Finally, this law also regulates the arbitral award, its enforceability, its interpretation, as well as arbitration fees and arbitrators’ fees (articles 362-370).

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Challenges of the arbitration system cases per year. CEBAC can promote awareness of in Burundi arbitration in Burundi by developing an online presence, The regulation of arbitration by the legislature, publishing statistics and educational materials, as well the ratification of certain international conventions as organizing conferences to promote its work. Finally, and the current presence of CEBAC are efforts arbitration remains relatively costly as compared to local which have helped promote Burundi as an alternatives for the resolution of disputes, considering arbitration-friendly jurisdiction. that it costs around ten dollars to file a dispute in the commercial courts whereas CEBAC’s fees (including Nevertheless, there remains room for improvement. arbitrator fees and CEBAC’s costs) are calculated as a The legal framework could be supplemented to percentage of the amount in dispute. include certain mandatory provisions to grant greater protection to parties doing business in Burundi aligning Though Burundi has made considerable strides by the country’s laws with other arbitration-friendly adopting legislation and entering into bilateral and jurisdictions. For example, mandatory provisions international agreements which provide a robust could be added to guarantee the parties’ equality framework for international arbitration, there is – as with and respect of the adversarial principle, as well as any jurisdiction – room for improvement. However, requiring compliance with international public policy. Burundi is a good example of the pro-arbitration The provision dealing with the arbitrators’ mission climate which many African states have cultivated (see Article 353) could be expanded to require the over recent years. arbitrator to fulfil his mission in accordance with the principles of “independence and impartiality” Authors (instead of only “independence”) which is the common formulation in a number of jurisdictions. Furthermore, Ida Djuma amendments should be made to the current law Partner to require arbitrators to make disclosures of issues Bujumbura which may affect their independence and impartiality, +257 22 24 89 10 which is not currently the case. [email protected]

Further, CEBAC needs to take steps to improve public Lara Elborno awareness of its services. It has been suggested Avocat à la Cour, Associate that CEBAC administers only a few cases per year Paris while the Commercial Court registers hundreds of +33 140 152 487 [email protected]

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AfCFTA and the upcoming protocol on investment: What can investors expect?

In May 2019, The African Continental Free Trade Finally, despite the widespread criticism of investor-State Agreement (“AfCFTA”), designed under the aegis of the dispute settlements, most African States continue to African Union, became a reality. The AfCFTA harmonizes offer foreign investors the option to bring proceedings rules of international trade amongst its member before an arbitral tribunal. Yet, there is a trend in recent States and aims to create a single market for goods instruments towards making this mechanism conditional and services of 1.2 billion people with a combined to the fulfillment of certain requirements, such as the GDP of more than USD2.2 trillion. Whilst some of its consent in writing to arbitration of the host State, the prior instruments are already in force, other aspects remain exhaustion of local remedies or prior efforts at settling under negotiations to date, including the much- the dispute amicably. Whilst it appears unlikely that the expected Investment Protocol, defining the substantive member States find a consensus on whether to use or protections and rights of recourse available to investors. prohibit investor-State arbitration, it is probable that the Investment Protocol will limit its availability and put Very little has been made public of the ongoing greater emphasis on amicable settlement mechanisms. negotiations of the Investment Protocol, which It may also resolve the issue by offering an opt-in/opt-out should reflect the consensus of member States on mechanism to the use of investor-state dispute resolution. international investment law. Nevertheless, recent Bilateral Investment Treaties (“BITs”) involving African Overall, prospective investors in Africa should expect States, investment instruments of regional economic an Investment Protocol that strikes a fresh and communities recognized by the African Union welcome balance between the facilitation of cross- (“RECs”) as well as the Draft Pan-African Investment border investments within Africa and the sustainable Code (“Draft PAIC”) reveal clear trends and certain development of the host State. conflicts of opinions on some key substantive and procedural investment provisions. These instruments Further articles on the AfCFTA will appear in our are undoubtedly informing the negotiations of the subsequent editions of this publication. Investment Protocol and therefore provide some insight into its future approach and content. Authors

Théobald Naud In particular, a large number of recent BITs involving Avocat à la Cour, Partner African States, as well as the Draft PAIC and various Paris regional investment treaties of the RECs, insist on +33 1 40 15 24 18 the State’s right to regulate in key areas, such as the [email protected] preservation of public health, safety and the environment. The provisions expressly permit States to enact measures Maxime Desplats that would otherwise be inconsistent with their obligations Avocat à la Cour, Counsel towards foreign investors. Moreover, strict investor Paris obligations and corporate accountability provisions have +33 1 40 15 25 14 been included in a number of recent African investment [email protected] instruments. The Investment Protocol is thus strongly expected to include similar sets of provisions. Ophélie Divoy Avocat à la Cour, Senior Associate The Investment Protocol may also bring welcome clarity Paris to the definition of the traditional standard of Fair and +33 1 40 15 66 87 Equitable Treatment (“FET”) which protects foreign [email protected] investors against arbitrary, discriminatory or abusive conduct by States. This standard, typically found in investment instruments, is rarely defined precisely and is left to the broad discretion of arbitral tribunals to interpret.

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Michael Ostrove, Global Co-Chair of International Arbitration, gave a presentation oan Investor-State Mediation at the 6th SOAS Conference on Arbitration in Africa. The event was held in Douala, Cameroon on 11-12 March 2020.

Jeune Afrique Arbitration partners, Michael Ostrove and Alexander Brabant, have again been nominated in Jeune Afrique’s top 100 lawyers in Francophone Africa 2020. It is the fourth consecutive year that the firm’s partners have been recognised in the ranking.

In addition, Dakar-based Boubacar Diakité, senior associate at The publication focuses on African political, economic, social DLA Piper Africa, Senegal (Geni & Kebe) is ranked for the first time. and cultural news. The Jeune Afrique Media Group organizes the well-known Africa CEO Forum and also publishes the Jeune Afrique is a French-language pan-African weekly news English-language The Africa Report magazine. magazine and is the most widely read pan-African magazine. DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at dlapiper.com. This publication is intended as a general overview and discussion of the subjects dealt with, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper will accept no responsibility for any actions taken or not taken on the basis of this publication. This may qualify as “Lawyer Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. Copyright © 2020 DLA Piper. All rights reserved. | OCT20 | A06935-9