Disputes in Africa: What Comes Next?

Welcome to the February edition of the Addleshaw Goddard Africa Group Newsletter. We hope you enjoy reading a selection of business news and articles from around the continent.

Visit our dedicated Africa site for more information about doing business in Africa and how Addleshaw Goddard can support you.

Introduction

In this month's Newsletter, we examine recent and future trends in Africa-related disputes.

The rise of arbitration as a favoured dispute resolution mechanism continues, with a number of recent cases and awards making headlines, particularly in relation to Nigeria. The strengthening foothold of arbitration in Africa can also be seen in the increasing number of institutions operating on the continent, of which the Lagos Chamber of Commerce International Arbitration Centre (LACIAC) is the latest example.

Other disputes trends reflect points of economic focus in the region. Mining, one of Africa's flagship industries, appears an expanding area for disputes, possibly prompted by recent changes in domestic legislation in several African states. 2021 has also seen the commencement of one of the first claims brought against an African state by a mainland Chinese investor – likely to be monitored with interest, given the prevalence of Chinese foreign direct investment throughout the continent.

Going forwards, policy changes in response to environmental concerns, and also the disruption caused by the Covid-19 pandemic, may prove fertile areas for disputes, particularly in the ISDS sphere.

We hope you enjoy reading about these developments, and others. Thank you, as always, to our external contributors. Please do not hesitate to get in touch if you have any questions.

Guest Editorials

Recent and Emerging Trends in Third-Party Funding of Africa-Related Disputes

Dominic Afzali, Director, Harbour Litigation Funding

Just as Africa-related disputes are increasing, so is the demand for litigation funding in relation to those disputes. Harbour sees and reviews dozens of potential Africa-related investment opportunities each year. This article provides insight into recent and emerging trends in relation to the third party funding of Africa-related disputes.

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Energy Policy Meets Arbitration

Kweku Aggrey-Orleans, Barrister, 12 King's Bench Walk

The recent Final Award dated 26.01.21 from the registry of the Permanent Court of Arbitration in GPGC Limited v the Government of Ghana was a ruthless display of arbitration’s efficiency in tackling the raft of likely arguments that arise from many power purchase agreements struck between the private sector and Government or State entities in Ghana.

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Investment Treaty Claims in Pandemic Times: What Will Foreign Investors and African States Do Next?

Nathalie Allen, Legal Directior, Canelle Goldstein, Managing Associate, Addleshaw Goddard

2020 saw States worldwide announcing and implementing radical new measures to combat the spread of COVID-19 and we continue to see the implementation of stark measures as new variants emerge. States are also seeking to address the consequent, and inevitable, economic damage. Such measures have involved emergency declarations empowering governments to take control of private businesses, to close borders, to impose stay-at-home orders, to suspend mortgage and utility payment obligations, to restrict exports, and to close non-essential businesses. Many States have announced substantial economic aid or stimulus packages, sometimes prioritising the protection of certain industries over others.

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Shell takes Nigeria to ICSID

Shell has lodged an ICSID claim against Nigeria over an oil mining joint venture in the Niger Delta that has led to multiple lawsuits based on allegations of environmental contamination.

Dutch-registered Shell Petroleum and its subsidiary the Shell Petroleum Development Company of Nigeria (SPDC) are bringing the claim under the Netherlands-Nigeria bilateral investment treaty. The case was registered by ICSID on 10 February.

Shell has instructed Debevoise & Plimpton. The firm declined to comment.

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Rising climate change litigation puts State, oil companies on edge

Unless your area has ever been hard hit by heavy floods or a biting drought, you might think some disasters were designed only for certain regions. Well, climate change is around, and besides the fact that it is exacerbating weather calamities, it is also sending more people to court as they challenge governments and corporate firms for inaction or for contributing to the crisis.

In a new report released a week ago by UN Environment Programme (UNEP), data shows that climate litigations have nearly doubled over the last three years and are increasingly compelling governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals.

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AfCFTA: Africa’s march towards economic integration

Africa’s journey of a thousand miles started on Friday, January 1 under the Africa Free Trade Agreement.

This is Africa’s opportunity towards recovery, prosperity and ultimately an opportunity to fulfil the vision of our founding fathers of an integrated continent where everyone has an opportunity to grow, contribute and prosper. And though it won’t be without its challenges, the collective political will for an integrated Africa will be a driving force for its success.

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Anglo American's S.Africa unit faces class action over Zambia lead poisoning

Anglo American’s South African division is being sued over allegations of negligence at a lead mine it part-owned in Zambia nearly 50 years ago, according to a class action filed at South Africa’s High Court on Wednesday.

South African law firm Mbuyisa Moleele and UK-based Leigh Day said they filed the suit “on behalf of a class estimated to comprise more than 100,000 individuals” thought to have been poisoned by lead from the mine in Zambia’s Kabwe district.

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Chinese company brings claim against Ghana

A Beijing-based construction company has brought one of the first known claims by a mainland Chinese investor against an African country, seeking US$55 million from Ghana after its contract to develop an intelligent traffic management system for Accra was cancelled and it was replaced by other Chinese contractors.

Beijing Everyway Traffic and Lighting Tech Co Ltd served a notice of arbitration on the government of Ghana on 10 February, kicking off an ad hoc arbitration procedure under the China-Ghana bilateral investment treaty.

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New leaders for Lagos centre

After making changes to align itself with global best practice, the Lagos Chamber of Commerce International Arbitration Centre - LACIAC - has appointed a new chair and board and court members, as it unveils a road map for 2021.

Abimbola Akeredolu SAN of Banwo & Ighodalo in Lagos took over as chair on 1 January after Babatunde Fagbohunlu SAN of Aluko & Oyebode in Lagos completed his 5 year term.

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Sundance Resources eyes Congo arbitration

Australia's Sundance Resources Ltd says it is advancing its plans to start international arbitration proceedings against the Republic of Congo after the African country cancelled its Nabeba iron ore project in December.

Sundance, which delisted from the Australian stock exchange on December 21, said arbitration proceedings would be conducted under International Chamber of Commerce rules, before a tribunal of three arbitrators in London.

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British court rules against Sierra Leone in SL Mining jurisdiction case

Britain’s High Court on Monday dismissed Sierra Leone’s challenge of a 2020 International Chamber of Commerce (ICC) decision over claims by SL Mining after a dispute over its iron ore mining operations in the country.

The miner, a subsidiary of U.S. commodity trader Gerald Group, filed for arbitration with the ICC in August 2019 and suspended its Marampa mine the following month.

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