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International law and arbitration

Angola

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Angola has currently Bilateral Investment Treaties with Portugal, South Africa, United Kingdom, Italy, Germany and Cape Verde.

It also has agreements on customs cooperation with Portugal and Sao Tome and Principe and is negotiating with South Africa, the Community of Portuguese Language Countries (CPLP), Namibia, Zambia and the Democratic Republic of Congo to enter into similar agreements.

(ii) Is the country a signatory to the Energy Charter Treaty?

Angola is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

According to the Angolan Arbitration Law (Law 16/03, of July 25) it is possible to use arbitration as a mean to solve disputes on available rights, between private companies and between those and the State. The seat shall be chosen by the parties or the arbitrators may fix. In the case of international arbitration, the parties may choose the language and the law ruling the Arbitration Convention.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards?

Angola is not a party to the New York Convention on the Recognition of Foreign Arbitral Awards.

Guinea

(a) Supra-national treaties

(i) Please list the Bilateral Investment Treaties to which the country is party.

Guinea has Bilateral Investment treaties with Lebanon, Mali and France.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.

The Republic of Guinea is signatory of the Convention of the African Commission of Energy.
Guinea is also member of the International Renewable Energies Agency (IRNEA).

(b) Arbitration

(i) Please advise any requirements and restrictions applicable to the choice of arbitration roles and place of arbitration etc.

The OHADA Uniform Act of Arbitration regulations adopted on 11th March 1999 sets up the requirements and restrictions applicable to the choice of arbitration roles and place of arbitration.

(ii) Please confirm whether foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards)?

Guinea is a party to the 1958 New York Convention.

Ivory Coast

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Ivory Cost has Bilateral Investment Treaties with Belgium and Luxembourg, China, Germany, Ghana, Italy, Netherlands, Sweden, Switzerland, Tunisia and the United Kingdom.

(ii) Is the country a signatory to the Energy Charter Treaty?

Ivory Cost is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

Parties are free to submit their dispute to arbitration. The procedure of OHADA is applicable only when the seat of arbitral tribunal is in a member state.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Ivory Cost is a party to the New York Convention on the Recognition of Foreign Arbitral Awards.

Kenya

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Kenya is a party to bilateral investment treaties with Germany, the Netherlands and the United Kingdom respectively.

(ii) Is the country a signatory to the Energy Charter Treaty?

Kenya is not a member state nor does it have observer status to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

The choice of Arbitration can be determined by the parties to the agreement and it does not necessarily have to be in Kenya. Kenya is also part of UNICTRAL.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Foreign Arbitral awards are enforceable in Kenya and Kenya is a party to the New York Convention on the Recognition of Foreign Arbitral Awards (Ratified on 11th May, 1989).

Madagascar

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Madagascar has bilateral investment treaties with France, Germany, China, Mauritius and South Africa.

(ii) Is the country a signatory to the Energy Charter Treaty?

Madagascar is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

A party may seek on injunction from the court even if there is an arbitrator in place. Any application for a hearing on the courts will be rejected and referred to the Arbitral Tribunal.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Madagascar is a signatory to the New York Convention of 10th June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.

Mali

(a) Supra-national treaties

(i) Please list the Bilateral Investment Treaties to which the country is party.

The Malian government has signed several Bilateral Investment Treaties including:

  • Convention signed with the Kingdom of the Netherlands on 13th July 2003. The validity period is 15 years with automatic renewal for a period of ten years.
  • Convention signed with the Republic of Chad on 18th May 2001. The validity period is 10 years with automatic renewal for a period of ten years.
  • Convention signed with the Republic of Guinea on 13th July 2003 for a period of ten years, automatically renewable for further periods of five years.
  • Convention signed with the Federal Islamic Republic of Comoros on 18th May 2001 or a term of 10 years. Then remain in force until terminated by one of the party.
  • Convention signed with Benin signed on 18th May 2001 for a period of ten years automatically renewed.
  • Convention signed with Cameroon on 18th May 2001 for a period of 10 years automatically renewed for a further period of 10 years.
  • Convention signed with the Democratic People's Republic of Korea on 11th October 1999. Its validity is 10 years, automatically renewable for the same period.
  • Convention signed with Qatar on 1st December 1998 for a period of 10 years, automatically renewable.
  • Convention signed with Egypt on 9th March 1998 for a period of 10 years, automatically renewable for the same period.
  • Convention signed with Algeria on 11th July 1996 for a period of 10 years, automatically renewable.
  • Convention signed with South Africa on 4th March 1995 for a period of 10 years, automatically renewable.
  • Convention to promote and guarantee investment signed with Libya, on 30th August for an unlimited period, until it is terminated by one of the parties.
  • Convention with Tunisia signed on 11th July 1986 for a period of 10 years, automatically renewable.
  • Convention signed with the Federal Republic of Germany on 28th June 1977 for a period of 10 years and later extended indefinitely unless one of the Contracting Parties revokes it.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.[12]

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

The OHADA Uniform Act of Arbitration regulations adopted on 11th March 1999 sets up the requirements and restrictions applicable to the choice of arbitration roles and place of arbitration.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

The New York Convention of 1958 was ratified on 8th September 1994 and entered into force on 7th December 1994.

Mauritius

(a) Supra-national treaties

(i) Please list the Bilateral Investment Treaties to which the country is party.

Mauritius has entered into Investment Promotion and Protection Agreements with the following countries:

Barbados, Benin, Botswana, Burundi, Cameroon, China, Comoros, Czech Republic, France, Finland, Germany, Ghana, Guinea Republic, India, Indonesia, Korea, Madagascar Mauritania, Mozambique, Nepal, Pakistan, Portugal United Kingdom, Romania, Rwanda Senegal, Sweden, Switzerland South Africa, Singapore, Swaziland, Chad and Zimbabwe.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.

No.

(b) Arbitration

(i) Please advise any requirements and restrictions applicable to the choice of arbitration roles and place of arbitration etc.

A final award delivered by a foreign arbitration tribunal is enforceable in Mauritius, in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed at New York on 10 June 1958.

(ii) Please confirm whether foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards)?

Yes. Please see the previous response.

Morocco

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

  • Germany;
  • United Kingdom;
  • Argentina;
  • Bahrain;
  • Bulgaria;
  • China;
  • Korea;
  • Egypt;
  • United Arab Emirates;
  • Spain;
  • United States of America;
  • Finland;
  • France;
  • Hungary;
  • India;
  • Indonesia;
  • Iran;
  • Italy;
  • Jordan;
  • Kuwait;
  • Lebanon;
  • Libya;
  • Mauritius;
  • Poland;
  • Qatar:
  • Romania;
  • Salvador;
  • Sudan;
  • Switzerland;
  • Oman;
  • Syria;
  • Czech Republic;
  • Belgium and Luxembourg.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.

KoM is an observer of the Energy Charter Treaty.

(b) Arbitration

(i) Please advise any requirements and restrictions applicable to the choice of arbitration roles and place of arbitration etc.

Arbitration is commonly chosen in international investment agreements. However, arbitration is not well developed in KoM despite the adoption of a new legislation in November 2007.

(ii) Please confirm whether foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards)?

Since 1959, KoM is a signatory to the 1958 New York Convention relating to the enforcement of foreign arbitral awards.

Mozambique

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Mozambique has bilateral investment treaties and trade agreements with Portugal, USA, Zimbabwe, Malawi and China.

The country has also entered into Preferential Trade Agreements with the Republic of Zimbabwe and the Republic of Malawi.

Amongst others, Mozambique also has trade and mutual protection agreements with Angola and Brazil and is a member to the Southern Africa Development Community (“SADC”).

(ii) Is the country a signatory to the Energy Charter Treaty?

Mozambique is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

The Mozambican legal framework governing arbitration is set forth in the Arbitration, Conciliation and Mediation Law (“ACML”), a fairly modern and sophisticated statute which is mainly based on the Portuguese Arbitration Law.

The main principle of the ACML is the Parties’ freedom to agree on (i) the composition of the arbitral tribunal, (ii) the procedural rules, (iii) the applicable law and (iv) the language of the proceedings as follows:

Constitution and Composition of the Arbitral Tribunal

As per the law, parties to an arbitration agreement may agree on the manner in which the tribunal is to be constituted, including the number of arbitrators - provided however that such number is always an odd number -, notably by referring to a set of arbitration rules of an arbitral institution or by choosing an arbitral institution to conduct the proceedings.

Procedural Rules

The parties may freely agree on the rules to be observed in the proceedings. However, certain fundamental principles must always be observed, such as (i) the principle of equality between the parties, (ii) the adversarial system in all stages of the proceedings and (iii) the requirement that both parties be heard, either orally or in writing, before the final award is rendered.

Place of Arbitration

The parties may agree on the place of arbitration. The Arbitral Tribunal may hold meetings in any other place deemed appropriate, though.

Applicable Law on the Merits

The ACML authorizes the parties to permit the Arbitral Tribunal to rule on their dispute on the basis of equity or according to certain domestic or international usages and customs. In the case of international arbitration[1], the ACML states that the Tribunal will rule on the dispute in accordance with the law chosen by the parties to govern the merits of the dispute. The parties’ reference to a given law is deemed to be to the substantive provisions of such law, not to its rules on conflicts of laws.

Language

The parties in international arbitration may freely choose the language or languages to be used in the proceedings. If no agreement is reached, it shall then be for the Tribunal to determine the language(s) of the proceedings.

[1]The definition of international arbitration set out in the ACML follows the one adopted in the 1985 Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law (UNCITRAL). International arbitration is defined as being the one in which international trade interests are at stake. The ACML lists several situations where it deems that international trade interests are at stake, including, as in the case in hand, the circumstance of the parties to the arbitration being residents of different countries. 

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards?

Yes, Mozambique is a member to the New York Convention on the Recognition of Foreign Arbitral Awards, enacted by means of Resolution No. 22/98, of 2 June 1998.

Thus, foreign arbitral awards are enforceable. However, said judgment would first have to undergo a review and confirmation process in the Mozambican courts. The procedure to have a foreign arbitral award recognized and enforced through the Mozambican courts is made in accordance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – to which Mozambique is a party.

 

Niger

(a) Supra-national treaties

(i) Please list the Bilateral Investment Treaties to which the country is party.

Niger is a signatory of a Bilateral Investment Treaties with Algeria, Egypt, Germany, Switzerland and Tunisia.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.

Niger is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Please advise any requirements and restrictions applicable to the choice of arbitration roles and place of arbitration etc.

Parties are free to submit their dispute to arbitration. The procedure of OHADA is applicable only when the seat of arbitral tribunal is in a member state. Note that the ARM also has the jurisdiction to resolve disputes among stakeholders of the electricity sector.

(ii)Please confirm whether foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards)?

Niger is a party to the New York Convention on the Recognition of Foreign Arbitral Awards.

Nigeria

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Nigeria has Bilateral Investment Treaties for the reciprocal promotion of investments with France (1991), Egypt (2000), Turkey (1996), Netherlands, United Kingdom (1991), Spain (2002), Switzerland (2000), Germany (2000), Finland (2005) and the Republic of Korea (1997).

(ii) Is the country a signatory to the Energy Charter Treaty?

Nigeria is not yet a signatory to the Energy Charter Treaty, although it became an observer to the Energy Charter Conference on June 26, 2003.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

For a dispute or difference to be referable to arbitration, the Arbitration and Conciliation Act ("ACA"), Chapter A18, Laws of the Federation of Nigeria 2004, requires that the agreement to submit the dispute/difference to arbitration must be in writing or contained in another document whose arbitration clause was brought to the notice of both parties. The parties are free to choose the seat of the arbitration and the governing law of the arbitration.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Pursuant to the ACA, foreign arbitral awards are enforceable by Nigerian courts. The courts may however refuse to enforce a foreign arbitral award where it finds that the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Nigeria, or that the recognition or enforcement of the award is contrary to Nigerian public policy.

South Africa

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

South Africa is a party to a large number of bilateral investment treaties. It should be investigated in respect of each project whether any bilateral treaties could be of relevance. It should also be considered whether a project should be structured in such a way as to take advantage of any bilateral treaties.

(ii) Is the country a signatory to the Energy Charter Treaty?

South Africa is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

Generally, South African courts will recognise and uphold choices of governing law, arbitral fora and rules. However, a choice of law of contract will not be upheld by the courts of the Republic of South Africa if such choice of law is made by the parties with the intention of evading the provisions of another, appropriate and applicable legal system (fraus legis).

Furthermore, under South African law, a court will not accept a complete ouster of jurisdiction, although generally it recognises party autonomy and gives effect to a choice of law. However, jurisdiction remains within the discretion of the court and a court may, in certain instances, assume jurisdiction provided there are sufficient jurisdictional connecting factors. Similarly, the courts may, in rare instances, choose not to give effect to a choice of jurisdiction clause, if such choice is contrary to public policy.

Proceedings before a court of the Republic of South Africa may be stayed if the subject of the proceedings is concurrently before any other court.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

South Africa is a member of the New York Convention on the Recognition of Foreign Arbitral Awards. The principles applicable to the enforcement of foreign judgments are also applicable to the enforcement of foreign arbitral awards.

Subject to the permission of the Minister of Trade and Industry in terms of the Protection of Businesses Act (as amended) being obtained, a judgment obtained in a competent court of a jurisdiction other than South Africa will be recognised and enforced in accordance with ordinary procedures applicable under South African law for the enforcement of foreign judgments, provided that:

  • South African courts will not enforce a foreign arbitral or court decision where recognition of such decision may be so repugnant to the values of South African law that the decision will be excluded on grounds of public policy;
  • the judgment was final and conclusive, and not obtained by fraud or in any manner opposed to natural justice or contrary to the international principles of due process and procedural fairness, the enforcement thereof is not contrary to public policy and the foreign court in question had jurisdiction and competence according to the applicable rules on conflict of laws;
  • a foreign judgment will probably not be recognised in South Africa if the foreign court exercised jurisdiction over the defendant solely by virtue of an attachment to found jurisdiction or on the basis of domicile alone;
  • the South African courts will not enforce foreign revenue or penal laws; and
  • the South African courts have, as a matter of public policy, generally not enforced awards for punitive damages.

Tanzania

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party

Bilateral Investment Treaties include treaties with Denmark, Finland, Germany, India, Italy, Netherlands, Norway, Sweden, Switzerland, United Kingdom and Zambia.

It is possible to enforce some foreign judgments in Tanzania. Foreign judgments are enforceable in Tanzania if they originate from countries whose courts are recognised under the Reciprocal Enforcement of Foreign Judgments Act (Cap 8) (the "REFJA") as "superior courts". Courts of Lesotho, Botswana, Mauritius, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Kingdom of Swaziland and United Kingdom have been listed under the REFJA (Extension of Part II) Order and, as such, final (i.e. non appealable) judgements of superior courts from those countries would be enforceable in Tanzania.

(ii) Is the country a signatory to the Energy Charter Treaty?

Tanzania is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

Arbitration in Tanzania is governed by the Arbitration Act (Cap 15). The Arbitration Act grants substantial leeway to the parties to determine the manner in which they wish the arbitration to be conducted. Where there is no agreement, the Arbitration Act provides that the arbitrator shall make rules for the arbitration.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

An arbitral award shall be recognized as binding and, upon being filed in the court, shall be enforceable as if it were a decree of the court subject to the provisions of the Arbitration Act. Tanzania is a signatory to the New York Convention on the Recognition and Enforcement of Arbitration Awards. Tanzania is also a member of several international organisations including the International Centre for the Settlement of Investment Disputes (ICSID) and Multilateral Investment Guarantee Agency (MIGA).

Uganda

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

There exist bilateral investment treaties with the Egypt, Eritrea, Mozambique, Sudan, China, Sweden, United Kingdom, France, Germany, Netherlands and Switzerland.

(ii) Is the country a signatory to the Energy Charter Treaty?

Uganda is not a signatory of the Energy Charter Treaty.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

Arbitration in Uganda is governed by the Arbitration and Conciliation Act Cap 4 which follows the UNCITRAL Model law.

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Uganda is a signatory to the 1958 New York Convention relating to the enforcement of foreign arbitral awards and mode of enforcement and the Arbitration and Conciliation Act of Uganda provides for the enforcement of this treaty.

Zambia

(a) Supra-national treaties

(i) List all Bilateral Investment Treaties to which the country is party.

Germany and Switzerland (in force); Belgium, Luxembourg, China, Croatia, Cuba, Egypt, Finland, France, Ghana, Italy, Netherlands signed but not in force.

(ii) Is the country a signatory to the Energy Charter Treaty?

No. However, Zambia is a member of the Southern Africa Power Pool which is intended for the strengthening of regional power cooperation. The members include; South Africa, Zimbabwe, Zambia, Democratic Republic of Congo, Malawi, Botswana, Tanzania, Swaziland, Namibia, Lesotho, Angola & Mozambique.

(b) Arbitration

(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration

No such restrictions

(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the "Convention")?

Zambia is a party to the Convention and foreign awards are enforceable upon registration with the High Court of Zambia.

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