Article from: TDM 4 (2016), in Editorial
It is with great pleasure that we present this TDM Special Issue on Africa. The economic potential of Africa has captured the attention of businesses and investors globally, and this attraction has spilled over into the world of international arbitration. Literature on international arbitration in or relating to Africa is growing, and the number of conferences on the topic is accelerating as well. In May 2016, the International Council on Commercial Arbitration (ICCA) held its 22nd Congress in Mauritius - the first time ever that the ICCA Congress was held in Africa. This was followed by the First International Chamber of Commerce (ICC) Regional Arbitration Conference in Lagos, Nigeria, in July 2016, which, based on anecdotal accounts, was the highest-attended ICC regional conference ever held.
Africa is not new to international arbitration and international arbitration is not new to Africa. African states were among the earliest to ratify both the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention). Further, as one of the pieces in this Special Issue points out, a long-established tradition and practice of resolving disputes through arbitration in Africa exists in various contexts.
At the same time, however, resolution of Africa-related disputes through international arbitration is growing, and, as a result, a more diverse group of players is taking part in the international arbitral process than ever before. As new parties, counsel, fact and expert witnesses, arbitrators, and judges from Africa take on increasingly active parts in the arbitral process, new challenges will arise and these players will leave their own unique mark on the process. While important strides are being made in this regard, much work remains to be done in terms of achieving a healthy level of diversity in these cases.
These issues are explored more fully in the Special Issue's first set of pieces in Section A. Section B addresses investment treaty arbitration and policy in the African context. Section C follows with a set of articles addressing the impact that robust economic activity between Africa and Asia has had on dispute resolution. Section D focuses in on the important sector of energy and natural resources, which is followed by several papers in Section E addressing important developments in South Africa and the Southern Africa Development Community (SADC). Section F discusses recent developments in the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (or, in English, the Organization for the Harmonization of African Business Law or OHADA). The remainder of the papers addresses key jurisdiction-specific developments in Section G.
A. Africa's Impact on International Arbitration: Momentum and Challenges
Andrea Carlevaris, Tunde Ogunseitan & Diamana Diawara explore the "Africanisation" of international arbitration. They offer a methodical exposition of the factors that both historically hindered the development of international arbitration in Africa as well those that contributed to the recent advances. They illustrate each point of departure through the use of diverse cases from multiple African jurisdictions. They also critically assess the classical advantages-versus-disadvantages dialogue from a purely African perspective. More importantly, they demonstrate the chronic challenge of lack of African representation by useful statistics and forward remedial thoughts.
Similarly, Ravi Soopramanien & Shalini Soopramanien explore how the surge in interest in international arbitration in Africa has nevertheless failed to translate into a proportionate representation of African arbitrators on the international arbitration scene. They seek to delve deeper into the causes and origins of the "diversity gap" in international commercial arbitration, highlight the opportunities and challenges which lie ahead for the continent, and propose a three-pronged reform agenda geared towards African states, institutions, and individuals, with an overall view towards bridging this diversity gap.
In a similar vein, the lion's share of international arbitrations involving African parties to date has been administered by arbitral institutions based outside the African continent, including, most notably, the ICC and the London Court of International Arbitration (LCIA). With the possible exception of the Cairo Regional Centre for International Commercial Arbitration (CRCICA), Africa has in the past been without a well-established, globally known arbitral institution.
This trend, however, may be changing. A growing number of arbitral institutions, focused not just on domestic arbitration but international arbitration as well, is sprouting up on the continent. While some of these entities may not have the support and capacity that will be required to become formidable institutions, others may prove to have the wherewithal to become serious regional or international centers. These include the LCIA-Mauritius International Arbitration Centre (LCIA-MIAC), the Kigali International Arbitration Centre (KIAC), the Nairobi International Arbitration Centre (NIAC), the Lagos Court of Arbitration (LCA), and the China Africa Joint International Arbitration Center (CAJAC). The Cour Commune de Justice et d'Arbitrage (or, in English, the Common Court of Justice and Arb itration or CCJA), which, as discussed further below, is an arbitral institution as well as a court in the OHADA system is also worth watching.
In their piece, Elizabeth Karanja & Nicola Muriuki discuss how several African countries have recently taken steps to secure recognition as international arbitral hubs. They review the major arbitral institutions in Africa and highlight some of the successes and challenges that the various centers have faced in seeking international recognition. Their article also explores the common denominators that might indicate prospects for success and whether such institutions have the ability to achieve longevity on the continent and in international arbitral practice generally.
To a great extent, the issues that arise in international arbitration in or relating to Africa will be no different than those that arise in arbitrations around the globe. Converging international arbitration procedures and the predictability and stability afforded by the New York Convention and ICSID Convention help to ensure that this is the case. Yet party autonomy remains a core value of the international arbitral system, and, as such, regional approaches and local culture will continue to shape African-related arbitrations to some degree, just as they do elsewhere.
In this regard, Victoria Safran empirically explores the complicating effects of culture in her paper. Recognizing the paucity of empirical studies on the role of culture on the perception and reality of Africa's position in the global international arbitration community, Safran reports the findings of her interviews with eight African jurists from different jurisdictions. Safran's analysis explores such areas as the modernity of the legal infrastructure, institutional capacity, and convergence of cultures.
Florence Karimi Shako contributes a piece that contextualizes commercial arbitration in a transnational legal order in light of the increasing view that arbitration is a transnational system of justice. Shako explores the meaning of culture and analyzes the manner in which culture undergirds international arbitrations in Africa given this transnational context. She argues that cultural considerations must be taken into account in order for international arbitration to survive in the long run in Africa. In reaching this conclusion, Shako analyzes cultural issues such as political and religious considerations, cultural biases and stereotypes, and communication and language issues. Within this analysis, Shako highlights measures that could be put in place to ensure that these cultural issues are considered in African-related arbitrations in order to contribute to the greater success of the arbitral process.
B. Investment Treaty Arbitration and Policy
The next set of articles in the Special Issue focus on investor-state dispute settlement and policy. Africa was an early adopter of investment arbitration, dating to the founding of ICSID 50 years ago. As one of us, Professor Kidane, has noted previously, African countries represented a stunning 75% of the first 20 ratifications needed to bring the ICSID Convention into force in 1966 - powerful testimony to Africa's acceptance of the World Bank's argument that participating in ICSID would promote development. The first two cases registered at ICSID were filed against African states, Morocco and the Ivory Coast. Cases against the People's Republic of the Congo (now Congo-Brazzaville) and Nigeria soon followed, as did a rare case started by a state claimant, Gabon. Through the 1970s, two-thirds of ICSID's limited docket involved Sub-Saharan states. Contemporaneously, outside of ICSID, the famous TOPCO oil expropriation case was brought against the North African state of Libya.
Like the rest of the world, Africa has seen a marked increase in investor-state arbitration since the turn of the century - and, more specifically, since the Argentine financial crisis that started in late 2001. ICSID averaged one new case per year through the 1970s, two new cases per year in the 1980s, and four new cases per year in the 1990s before jumping to 24 new cases per year in the 2000s and 40 new cases per year so far this decade. ICSID's "case count" is approaching 600 cases and Africa-related cases represent about a fifth of that total, translating to well over 100 ICSID cases against African countries. This total includes 90 cases against 32 Sub-Saharan countries (led by the Democratic Republic of Congo with nine) and 41 cases against five North African countries (led by Egypt's 29).
In his 2014 article, Professor Kidane identified 64 completed cases at ICSID involving an African state as respondent. Of those 64 cases, 34 cases culminated in awards on the merits. Professor Kidane assessed that states prevailed in 44% of these cases, investors prevailed in 41%, and 15% had mixed results. He also noted the wide array of damages awarded to those investors who prevailed, varying from under $1 million up to $74.6 million, apparently with most awards in the modest seven-figure range. Newer cases continue to show this dichotomy, captured in the split between the recent Getma award of about $500,000 with the blockbuster Von Pezold award last year of about $195,000,000.
In contrast with the heavy involvement of Sub-Saharan states as ICSID respondents, ICSID has little experience with Sub-Saharan claimants. The ICSID website lists over 30 cases with Sub-Saharan claimants, but almost all are local subsidiaries of non-African companies - for example, in Shell Nigeria v. Nigeria, the ICSID website identifies the claimant as Nigerian. Our review of the ICSID website suggests there have only been four ICSID cases to date with true Sub-Saharan claimants: the long-ago case mentioned above started by Gabon; Sudapet v. South Sudan brought by the Sudanese oil company; Oded Besserglik v. Mozambique brought by a South African individual; and AngloGold Ashanti v. Ghana filed this year by the Ghanaian subsidiary of a South African business.
By another important measure, Africa's participation in ICSID has also been light: only 2% of all ICSID arbitrators are from Sub-Saharan Africa. Perhaps another 3% of ICSID arbitrators are from North Africa. Professor Kidane has previously described the gap between African respondents and African arbitrators as "ICSID's diversity deficit."
Our review of the appointments data yields several additional observations.
First, hearkening back to the "diversity gap" addressed by Soopramanien & Soopramanien, the ICSID appointments are concentrated among a few individuals. The 35 appointments of Sub-Saharan Africans are led by Judge Abdulqawi Ahmed Yusuf of Somalia (seven appointments) and Judge Keba Mbaye of Senegal (five). Even more concentration can be seen in North Africa, where three arbitrators from two countries dominate: Ahmed Sadek El-Kosheri of Egypt (13 appointments), Azzedine Kettani of Morocco (11), and Georges Abi-Saab of Egypt (six). No other African has more than three appointments.
Second, virtually all of the arbitrators from Africa are men. At most two African women have ever been appointed at ICSID with a total of three appointments: Marie-Madeleine Mborantsuo is Gabonese, and Marie-Andrée Ngwe is a French national and member of the Cameroon bar. As extreme as this statistic is, however, it is comparable to the overall gender imbalance among ICSID arbitrators. As Sergio Puig wrote recently, "[w]hat stands out ... is that around 93 per cent of all the appointments are of male arbitrators, suggesting an extreme gender imbalance. It gets even worse: only two women, Professors Stern and Kaufmann-Kohler combined, held three-quarters of all female appointments...."
Third, most appointments of Sub-Saharan Africans have been made by ICSID itself, rather than by the parties to a case - evidence of ICSID's efforts to address its "diversity deficit." ICSID has appointed 14 Sub-Saharan Africans to ad hoc annulment committees (which are always made by ICSID), including three appointments of Judge Mbaye and all seven of Judge Yusuf's appointments. ICSID appointed another six Sub-Saharan Africans for respondent states that did not make their own appointments. Respondent states have appointed Sub-Saharan Africans 13 times, but only one of these states is located outside the region (Sri Lanka in AAPL). Finally, claimants have appointed Sub-Saharan Africans only twice. Similar trends can be seen in North Africa as well. For example, ICSID has made all 11 appointments of Morocco's Azzedine Kettani and respondent states have made all six appointments of Georges Abi-Saab. Even the 13 appointments of Ahmed Sadek El-Kosheri show this trend: one appointment by claimant, one by both parties, three by respondent states, and eight by ICSID. Participation by an African claimant seems to have no impact: Gabon named a Belgian arbitrator, Besserglik chose a Canadian, and Sudapet and AngloGold both picked the same New Zealander. As long as appointments of Africans remain concentrated in ICSID's hands, the numbers will lag, because ICSID has controlled only 29% of all appointments.
Finally, our research has found only two tribunals (arguably three) with an African majority. In AAPL v Sri Lanka, the respondent appointed Samuel Asante of Ghana and the president of the tribunal was Ahmed Sadek El-Kosheri of Egypt. As it happens, AAPL is a historically significant case: as the first case to proceed based on a state's consent to ICSID arbitration found in an investment treaty, AAPL launched the "BIT revolution." In Banro v Democratic Republic of Congo, the claimant appointed a South African and the respondent a Senegalese. Similarly, in Lahoud v. Democratic Republic of Congo, where the Lebanese claimant appointed an Egyptian arbitrator, the respondent named Marie-Andrée Ngwe, a French national and member of the Cameroon bar. In those few other cases where a claimant has appointed an African, the respondent African state has failed to reciprocate and thereby establish an African majority.
It is clear, therefore, that the subject of investment arbitration in Africa raises many important issues ripe for exploration in this Special Issue. The authors have delivered timely contributions on these issues.
To begin, Wolfgang Alschner & Dmitriy Skougarevskiy recently developed an innovative new methodology for comparing the texts of bilateral investment treaties (BITs). Their methodology measures the extent of textual similarity across BITs, allowing them to determine the extent to which a particular country is able to impose its standardized terms on its treaty partners. In other words, their methodology allows them to determine which countries are "rule makers" and which are "rule takers." In this Special Issue, Alschner & Skougarervskiy apply their methodology specifically to the African context for the first time, shedding new empirical light on African BITs. Their data confirms what readers may intuitively hypothesize: that African states tend to be rule takers when negotiating with capital exporters outside Africa. There are also, however, many intra-African BITs and these tell a different story: power asymmetries do not seem to explain the negotiating outcomes within Africa, as smaller states like Mauritius with a strategic approach to investment policy appear to achieve greater consistency across treaties than do more powerful states like Egypt. The Alschner & Skougarevskiy article thus makes a welcome contribution to the academic literature on BITs, bringing new data analysis to bear with obvious policy ramifications.
Another welcome empirical contribution comes from Hamed El-Kady , who draws on UNCTAD's database to situate African BITs in the global network of BITs. El-Kady analyzes this data and identifies various ways in which he believes that current African BITs are ill-suited to Africa's needs. Based on this analysis, El-Kady proposes a three-point action plan intended to improve African BITs and to allow African states to become rule makers instead of rule takers. In this sense, El-Kady's article builds on the previous article by Alschner & Skougarervskiy.
Solomon Ebere zeroes in on an interesting and oft-overlooked multilateral investment treaty that applies in some African states. Ebere analyzes the Organisation of the Islamic Conference's agreement for the promotion, protection, and guarantee of investments among its members. He considers the impact that this little-known investment agreement could have on investor-state arbitrations involving certain sub-Saharan African states and does so in the context of the first published award pertaining to this investment agreement, the protection it affords to investors and states, and the arbitration mechanism it sets forth.
C. The Africa-Asia Nexus
From a focus on investment arbitration, the Special Issue moves on to address an important regional development, namely trade and investment flows between Asia and Africa and the resulting impact (or possibly lack thereof) on the resolution of disputes between parties from these two regions. Maguelonne de Brugiere & Charlie Morgan discuss how trade between China and Sub-Saharan Africa over the past two decades has changed the political and economic dynamics of the African continent. In doing so, they examine the impact that increasing Chinese investment in Sub-Saharan Africa in the past couple of decades is having on the availability, choice, and form of commercial international arbitration on the continent. They also examine the evolution of the China-Sub-Saharan Africa investment treaty regime, the broadening of the protections afforded to investors, and the liberalization of the investor-state dispute resolution mechanisms therein.
Ucheora Onwuamaegbu analyzes key trends and provisions of Asia-Africa investment agreements. Onwuamaegbu concludes that African and Asian states are not entering into investment agreements at a high rate and a substantial proportion of the Asia-Africa investment agreements that have been signed remain un-ratified. Onwuamaegbu posits that these trends may be the result of African states entering into investment agreements with countries with which they have historical investment flows instead and/or a tendency to rely on other processes for protecting investments such as local mechanisms and diplomatic protection. These trends suggest a lack of cohesion in the approach adopted by Asian and African states and investors in resolving their disputes, at least to date.
Dr. Nachiketa Mittal offers a novel "Chindia" perspective on investment protection in Africa - that is, the perspective from Chinese and Indian investors. The importance of Chinese investment in Africa is plain; Professor Mittal broadens the lens to encompass Indian investment as well. Some of the arguments advanced here will seem familiar - the need for investment protection, legal stability, reliable institutions, and so forth - but it is intriguing to see these arguments advanced from the point of view not of the North but of other Southern countries. Professor Mittal's work may be seen as being in conversation with many of the other articles in the Special Issue: expressly addressing the situation in South Africa and calling for reforms there; sharing some of the concerns expressed by Noury, Bruton, & Pan about the stability of investments in Africa (see below); and even contributing to the debate about the future of BITs by suggesting that Southern states may take positions traditionally associated with the North in South-South BITs as they become capital exporters.
D. International Arbitration in the Energy and Natural Resources Sector in Africa
Moving from a regional focus to a sector focus, Sylvia Noury, Leilah Bruton & Annie Pan highlight trends that point to the continuing need for investment protection by focusing on the especially sensitive sector of energy and natural resources. Noury, Bruton & Pan draw on their personal experience across the continent, identifying trends they see as threatening to investors in six countries: Algeria, Egypt, Mozambique, Nigeria, South Africa, and Uganda. They identify three trends sure to be of interest to energy investors in Africa:
"(1) the unilateral re-interpretation and violation of contractual terms (in particular, the erosion of previously agreed terms when energy and natural resource projects transition from exploration to production), (2) the introduction of adverse tax measures (such as retroactive windfall profits taxes and capital gains tax charges on offshore transactions) and (3) the implementation of 'indigenisation' or 'local content' legislation (including black economic empowerment policies)."
Noury, Bruton & Pan weave these strands together into one overall trend, which they term "resource nationalism." They call for restraint against such nationalism, urging that states "not attempt to wring so much out of their resources today that they forfeit the investment they require to reap the benefit of those resources tomorrow. " In other words, the authors remind us of the basic bargain embedded in international investment law: investment protection to attract investment to promote development.
Mark Beeley & Adrianne Goins explain that international commercial arbitration has been often misunderstood and poorly supported in much of Africa, especially in the context of disputes in the oil and gas sector where high financial stakes combine with national interest and divergent nationalities. They note that distrust has resulted from the lack of insight into arbitration proceedings conducted by non-African, private tribunals outside of the continent and that this distrust has manifested itself in domestic court interference in arbitration, which can significantly prolong or even derail the resolution of disputes. The authors go on to explain that there have been a number of efforts in recent years to advance the use of arbitration through both international and regional institutions, especially with regard to energy disputes. They conclude that, although there have been setbacks, the developments are, on the whole, promising.
Saadia Bhatty & Nefeli Lamprou address Africa's international boundary disputes and the impact on investment, particularly in oil exploration and production activity. Bhatty & Lamprou note that foreign investment in Sub-Saharan Africa continues to proliferate even though nearly a hundred active territorial and maritime disputes currently exist across the continent, resulting in large areas with unsettled boundaries. They note that this phenomenon can be explained in part because oil and gas concessions are sometimes granted without the investors being fully aware of an underlying inter-state dispute or due to the fact that boundary conflicts often emerge or intensify following successful exploration activities.
Bhatty & Lamprou discuss as well how states also manage to attract foreign investment on territories with unsettled boundaries by temporarily agreeing with their neighboring state(s) on a joint allocation of resources pending a final determination. Despite these arrangements - which often take the form of joint development agreements - investing in areas with unsettled disputes remains a highly risky business that is misunderstood and frequently overlooked by foreign investors in the energy sector.
E. Developments in South Africa and SADC
At a time of great public debate in the North about the future of BITs and investment arbitration, Africans are discussing similar questions. Notably, South Africa recently terminated some of its BITs and enacted new investment legislation. South Africa's actions mark some of the most important developments affecting the future of investment arbitration in Africa. Similarly significant changes may be on the horizon in the context of international commercial arbitration in South Africa as the country considers a new national arbitration law. Accordingly, this Special Issue has three articles that contribute valuably to understanding and evaluating the changes in South Africa.
Maurice Kenton & Anne-Sophie Petitdemange begin with a focused examination of the new Protection of Investment Act. They examine both the substantive and procedural aspects of the Act, evaluating the extent to which they strike an appropriate balance of interests between investors and the public. They argue that South African law continues to afford valuable substantive rights to investors, while raising questions about the extent to which the Act's approach to dispute resolution may come to weaken these protections in practice.
Diora Ziyaeva & Maria Jonker take a different approach. They situate the Act broadly in the context of South Africa's efforts to modernize its legal regime governing commercial arbitration, as it tries to develop its arbitral institutions and become a regional seat. Ziyaeva & Jonker thus examine not only the Act itself, but also a new International Arbitration Bill, which may overhaul South African law with respect to international arbitration to conform with the New York Convention and the UNCITRAL Model Law.
Azwimpheleli Langalanga then places the Protection of Investment Act in historical context. He discusses how post-apartheid South Africa initially joined the modern international investment law regime, until it was prompted to reconsider by a uniquely sensitive case: in Foresti, the claimants challenged the Black Economic Empowerment program, a cornerstone of post-apartheid policy.
A small step takes us from South Africa to the Southern African Development Community (SADC), where a dramatic reaction to investor-state arbitration has unfolded. SADC had created a court with jurisdiction over "disputes between natural or legal persons and States," regardless of the claimant's nationality. In its first judgment, the SADC Tribunal ruled for white farmers from Zimbabwe in a case they brought against Zimbabwe itself. The Tribunal held that Zimbabwe had deprived the farmers of their land without opportunity for judicial review and had discriminated de facto against them on the basis of race. Soon thereafter, apparently at Zimbabwe's urging, the SADC Summit effectively dissolved the Tribunal and suspended its work pending a treaty amendment to abolish private access.
In the wake of these developments, Nuno Ferreira Lousa & Raquel Galvão Silva come forward in the spirit of Mark Twain's famous quip: "The report of my death was an exaggeration." They argue that SADC's Protocol on Finance and Investment continues to protect investors, arguably including investors from outside the SADC region. And they argue that cases under this protocol may be brought (in appropriate circumstances) to ICSID, the ICSID Additional Facility, or ad hoc arbitration under the UNCITRAL rules. This innovative argument will interest anyone considering the extent of international investment protection currently afforded in the 15 countries of the SADC region, including South Africa under the Protection of Investment Act. When a suitable case arises, it will be interesting to see if the tribunal upholds the argument advanced here by Lousa & Galvão.
From southern Africa, the Special Issue moves to the OHADA region. OHADA is an organization of 17 African countries that seeks to harmonize business laws and implementing institutions. In relation to international arbitration, OHADA adopted the Uniform Act on Arbitration ("Uniform Act") in 1999, which is based on the UNCITRAL Model Law, though it is generally less comprehensive. The OHADA arbitration regime enables parties to arbitrate under the Uniform Act, providing for (1) institutional arbitration administered by the CCJA or, alternatively, (2) ad hoc arbitration or institutional arbitration by an institution other than the CCJA. Under the OHADA system, the CCJA serves a dual role as an arbitral tribunal and as the court of last resort for OHADA law, which includes serving as the authority responsible for annulling arbitral awards.
To date, coverage of OHADA-related arbitrations has been more extensive in French outlets than in English ones, which is not entirely surprising in light of the fact that OHADA mainly covers Francophone countries. However, a recent notable exception in English-speaking circles occurred earlier this year when the Getma International v. Republic of Guinea case garnered considerable attention for OHADA-related arbitration. In this case, the CCJA annulled an award on the basis that the arbitrators exceeded their mandate when they entered into a separate fee agreement with the parties, which substantially exceeded the fees established by the CCJA in its fee schedule. Getma International sought to enforce the award in the U.S. District Court for the District of Columbia, but, in an opinion dated June 9, 2016, the court refused to enforce the award since it had been annulled by the CCJA. The Getma case has been criticized from multiple angles, including the CCJA's fee schedule and the actions of the arbitrators, and will undoubtedly continue to be a source of debate.
Four articles in this Special Issue seek to elucidate the OHADA arbitral process and highlight key issues confronting the arbitral process in this region.
Janice Feigher provides an overview of some of the salient issues and challenges confronting the OHADA arbitration framework. In doing so, she explores the two regimes available for arbitration under the OHADA system - arbitration under the Uniform Act or the rules of the CCJA - and the common features and unique aspects of these regimes. In making this analysis, Feigher concludes that, although OHADA arbitration proceedings increasingly involve African parties or interests, reform of OHADA arbitration is necessary if it is to flourish and become a cornerstone of dispute resolution in Africa.
Athina Fouchard Papaefstratiou provides a critical analysis of OHADA arbitration in her contribution. She reports on the recent process that was undertaken to revise the Uniform Act rules and the establishment of a partnership between the CCJA and the ICC in Paris, which seeks to enhance cooperation between these two organizations and promote, professionalize, and standardize the practice of arbitration in the OHADA region. The article points to certain aspects of the OHADA arbitration system that may merit a re-assessment during the review process and to practices of the CCJA as an arbitration institution that may be worthy of revision in the context of the partnership with the ICC.
Séverine Menétrey focuses on the multiplication of arbitral institutions in OHADA countries, a theme explored on a continent-wide basis by Karanja and Muriuki, as noted above. Professor Menétrey undertook an information-collection endeavor by devising and transmitting a survey to the various arbitral institutions that exist in the OHADA region - a number that has reached 16 (though some exist only formally). She found that the quantitative "success" of the OHADA region's arbitral centers is modest but that a paradigm shift has occurred with respect to the view of arbitration by OHADA Member States since the Uniform Act was passed in 1999. She concludes that the extent to which public authorities have accepted, and often promote, arbitration is a direct result of OHADA.
Finally, T. Alexander Brabant & Ophélie Divoy delve into a timely and important topic on the enforcement of arbitral awards under the Uniform Act. They explain how the enforcement in OHADA Member States of awards rendered outside the OHADA zone continues to face several hurdles. In particular, they note that the provisions of the Uniform Act can be the source of significant debate regarding its applicability as the law governing (1) the recognition and enforcement of foreign arbitral awards in OHADA Member States and (2) challenges brought against exequatur orders. They make a call for relevant improvements as part of the revision process that is underway on the Uniform Act.
G. Other Jurisdiction-Specific Developments
The remaining papers address salient topics within the realm of specific jurisdictions. Ina C. Popova & Nwamaka G. Ejebe examine Mauritius's effort to become a leading arbitral seat. They address the specifics of the Mauritian legal framework, including what they call the "innovative pro-arbitration adjustments" to the UNCITRAL Model Law, and the Mauritian courts' pro-arbitration enforcement of the legal framework through the discussion of several demonstrative cases.
Albert K. Fiadjoe & Nana Tawiah Okyir address Ghana's most recent lex arbitri. Ghana's relatively new law has some very peculiar characteristics, including an attempt to integrate customary law and customary means of resolution of disputes in the context of pluralism. Providing historical context, Fiadjoe and Okyir situate Ghana's lex arbitri in the global arbitral order.
Seyoum Yohannes Tesfay tackles a very specific topic - kompetenz-kompetenz under Ethiopian law. The allocation of competence between the courts of the seat and arbitral tribunals is at the core of the operation of the arbitral system anywhere. Tesfay surveys a spectrum of foundational principles and standards of review in jurisdictions ranging from the United States to France and offers his own conclusion of where the Ethiopian law falls within this spectrum.
The role of national law and the supervisory jurisdiction of national courts over international arbitration will continue to be a key issue in Africa just as it is elsewhere across the globe. In this regard, Mabvuto Sakala & Kelly Kapianga contribute a piece in which they assess Zambia's UNCITRAL-Model-Law-based Arbitration Act from a doctrinal and practical standpoint. Beginning with the historical progression of the rules, they critically examine matters ranging from the Zambian courts' enforcement of arbitration agreements to the enforcement of arbitral awards focusing on the mining and financial sectors. Sakala & Kapianga demonstrate their main propositions using Zambian court cases. In particular, the cases demonstrate instances of both occasions of the courts' interference and restraint.
Dr. Philip Osarobo Odiase offers an analysis of the challenges of enforcement of international and domestic arbitral awards in Nigeria. Dr. Odiase's analysis is both academic and practical. On the academic side, he puzzles over the intractable problem of the exact role of the courts of the state in which the arbitration is seated. He explores not only their procedural supervisory function but also the limits of their review power. At the more practical level, he sheds light on the Nigerian courts' specific challenges in the enforcement of arbitral awards.
Finally, the Special Issue moves away from its emphasis on international arbitration with one piece exploring mediation as a method of alternative dispute resolution on the basis of an important case study. Kananu Mutea provides a timely report on the efforts that the Kenyan judiciary has taken, in collaboration with the Law Society of Kenya, to increase efficiency and case management through the introduction of court-mandated mediation in the Commercial Division of the High Court at Nairobi.
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This Special Issue presents diverse views on a number of salient topics affecting international arbitration involving the African continent. These issues will continue to unfold as Africa continues to emerge as a geographic region of importance in the international arbitral community. We hope you enjoy this Special Issue and find it useful in your endeavors.
 Shareholder, Greenberg Traurig LLP; Professorial Lecturer in Law, The George Washington University Law School.
 Partner, Addis Law Group LLP; Associate Professor , Seattle University Law School.
 Principal, International Trade & Investment Law PLLC; Visiting Scholar, Seattle University School of Law.
 The diverse views expressed in the individual pieces in this Special Issue are attributable to the respective authors and do not necessarily reflects the views of the co-editors or other contributing authors. The views set forth in this introductory piece are those of the co-editors personally and do not necessarily reflect the views of the firms or institutions with which the authors are affiliated, their clients, or the contributing authors.
 Andrea Carlevaris, Tunde Ogunseitan & Diamana Diawara, The "Africanisation" of International Arbitration.
 Won Kidane, The China-Africa Factor in the Contemporary ICSID Legitimacy Debate, 35 U. Penn. J. Int'l L. 559, 561 & n.6 (2014) ("The fifteen original African contracting states were: Benin, Burkina Faso, Central African Republic, Chad, Republic of Congo, Cote d'Ivoire, Gabon, Ghana, Madagascar, Malawi, Mauritania, Nigeria, Sierra Leone, Tunisia, and Uganda. A total of twenty instruments of ratification were deposited that day. The remaining [five] came from Iceland, Jamaica, Malaysia, Netherlands, and the United States.").
 Id. at 561-62 (discussing the history); see also Perry S. Bechky, Microinvestment Disputes, 45 Vand. J. Transnat'l L. 1043, 1064-67 (2012) (discussing development as the purpose of ICSID).
 Of the first nine cases listed on listed on ICSID's website, registered between 1972 and 1978, six concerned Africa and three concerned Jamaica. See ICSID, Concluded Cases with Details, icsid.worldbank.org.
 Texaco Overseas Petroleum Co. v. Libya, Award on the Merits, Jan. 19, 1977, translated in17 Int'l Leg. Materials 1 (1978). As this case reveals, ICSID, of course, is not the only forum hearing investor-state arbitrations. But it appears quite dominant in investment cases (especially treaty-based cases) involving Africa. According to the article appearing in this Special Issue by Andrea Carlevaris, Tunde Ogunseitan & Diamana Diawara of the ICC, at 12 n. 44, "[o] ver the past 10 years, only one ICC case on the basis of a BIT was brought against an African State. " Likewise, the website of the Permanent Court of Arbitration lists 27 pending investor-state cases, none of which concerns Africa. Permanent Court of Arbitration, Cases, https://pcacases.com/web/allcases/.
 Our calculations based on annual data in ICSID, The ICSID Caseload - Statistics (2016-2), at 8 (ICSID Caseload).
 Id. at 11. According to this document, 16% of ICSID cases concern Sub-Saharan Africa and another 10% concern "the Middle East and North Africa."
 Our calculations based on data at ICSID, Cases, icsid.worldbank.org (identifying 593 cases as of Sept. 1, 2016, searchable by party nationality).
 Kidane, The China-Africa Factor, at 597, 652-673 (Appendix 2). This table lists the damages in awards against African states, including awards of about $15,000 plus local currency, $200,000, $333,000 plus local currency, $750,000 (later annulled), $1.2 million, $2.2 million, £1.8 million, $8.7 million, $9 million, €8.2 million, $12.3 million (which included interest and costs of about $5.7 million and was later reduced by partial annulment), $20 million (which included interest of about $12 million), $27.6 million (which included interest and costs of about $15 million), and $74.6 million. We have focused here only on the awards denominated in dollars and such readily convertible currencies as euros and pounds.
 Getma Int'l v. Guinea, Award, ICSID Case No. ARB 11/29, 194-95 (Aug. 16, 2016). This case is discussed further in this Special Issue by Soopramanien & Soopramanien, Papaefstratiou, and Karanja & Muriuki.
 Von Pezold v. Zimbabwe, Award, ICSID Case No. ARB/10/15, 304-05 (July 28, 2015). This award, which arose from Zimbabwe's expropriation of land from white farmers, gave Zimbabwe the option to reduce the damages to about $65 million if it also restored land to the claimants. Id. This case is discussed further in this Special Issue by Lousa & Galvão .
 It should be noted that an ICSID tribunal may only exercise jurisdiction over a case between one Contracting State and "a national of another Contracting State." ICSID Convention, art. 25(1) (emphasis added). For a case like Shell Nigeria v. Nigeria, where the claimant is organized under the laws of the respondent state, jurisdiction may be exercised only where, "because of foreign control, the parties have agreed [that the claimant] should be treated as a national of another Contracting State" (in this case, the Netherlands). Id. art. 25(2)(b). Accordingly, as a matter of ICSID law, Shell Nigeria cannot validly be considered a Nigerian person notwithstanding its incorporation in Nigeria, but must instead be deemed to have the nationality of its Dutch parent company.
 Technically, Besserglik v. Mozambique is an Additional Facility case not governed by the ICSID Convention, because South Africa is not an ICSID Member. By contrast, AngloGold Ashanti is governed by the ICSID Convention. The ICSID website does not explain the deemed nationality of the claimant in AngloGold Ashanti, but presumably the South African parent owns the Ghanaian subsidiary through an intermediate holding company in a country that is a member of ICSID.
 ICSID Caseload, at 18.
 Id. (identifying 4% of arbitrators from "the Middle East and North Africa"). The country-specific list indicates that a majority of the "MENA" appointments are from North Africa (perhaps 47 to 11, excluding from both sets dual nationals and one notable tri-national). Id. at 20.
 Kidane, The China-Africa Factor, 35 U. Penn. J. Int'l L at 623.
 The authors thank Marie-Andrée Ngwe and Sergio Puig for their help on this point. The Democratic Republic of Congo appointed Marie-Andrée Ngwe once and Marie-Madeleine Mborantsuo has two appointments, one by Gabon as claimant and the other by ICSID on behalf of the Central African Republic as respondent.
 Sergio Puig, Social Capital in the Arbitration Market, 25 Eur. J. Int'l L. 387, 404-05 (2014).
 Cf. David C aron, ICSID in the Twenty-First Century: An Interview with Meg Kinnear, 104 ASIL Proceedings 413, 432 (2010) (" So the short answer is, number one, foremost and always, it's merit. But yes, I certainly hope and look to see if there are candidates from other regions, including women. There are some fabulous candidates who may meet that primary requirement. So yes, it's important to expand the pools, but obviously never just for the sake of diversification. ").
 Banro American Resources v. Democratic Republic of Congo, ICSID Case No. Arb/98/7 (Carveth Geach of South Africa); Société d'Investigation de Recherche et d'Exploitation Minière v. Burkina Faso, ICSID Case No. ARB/97/1 (Séna Agbayissah of Togo, though apparently based in Paris).
 Puig at 406. This compares with 66% by parties (singly or jointly) and 5% jointly by co-arbitrators. Id. ICSID is limited in another respect as well: states name people to the rosters from which ICSID selects and, as of 2012, only 14.7% of the designees were women. Lucy Greenwood & C. Mark Baker, Getting a Better Balance on International Arbitration Tribunals, 28 Arb. Int'l 653 (2012).
 Asian Agricultural Products Ltd. v. Sri Lanka, Award, ICSID Case No. ARB/87/3; see generally Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995).
 Cf. Bechky, Microinvestment Disputes, 45 Vand. J. Transnat'l L. at 1064-67 (arguing that investment promotion is only ICSID's intermediate purpose, not its ultimate purpose, which is development).
 Mike Campbell (Pvt) Ltd. v. Zimbabwe, SADC (T) Case No. 02/2007, Judgment (28 November 2008). For more about Campbell and its political consequences, see Perry S. Bechky, International Adjudication of Land Disputes: For Development and Transnationalism, 7 Law & Dev. Rev. 313, 322-23 (2014).
 The member states of OHADA are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Republic of Congo, Democratic Republic of Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Senegal, and Togo.
 Getma Int'l v. Republic of Guinea, No. 14-1616, 2016 WL 3211808 (D.D.C. June 9, 2016).
 Maguelonne de Brugiere, A Step Back for OHADA Arbitrations?, Kluwer Arbitration Blog, February 10, 2016.
 Catherine A. Rogers, When Arbitrators and Institutions Clash, or The Strange Case of Getma v. Guinea, Kluwer Arbitration Blog, May 12, 2016.