Paper presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021[1]
I. Introduction on the interlink between increased investment and dispute settlement provisions
A. The importance of inter-African and foreign investment to African development
The economies of African nations, like most countries in the world, are dependent on foreign direct investment (FDI).[2]
The stability and growth of African economies is intricately intertwined with the ability of African governments to attract investors from outside the continent. As well stated by the International Journal of Financial Studies, “Foreign Direct Investment can bring in much needed capital, particularly to developing countries, help improve manufacturing and trade sectors, bring in more efficient technologies, increase local production and exports, create jobs and develop local skills, and bring about improvements in infrastructure and overall be a contributor to sustainable economic growth.”[3] With this plethora of potential benefits, it is absolutely essential that African nations create favourable environments for foreign investors. At the same time, however, they must ensure that the gains derived from FDI are in fact being used to create sustainable development.
B. The role of dispute settlement in attracting investment to the continent
While there is a list of other criticisms of this mechanism, both investors and states do agree on one benefit, which is what led to the almost global switch from diplomatic espousal to the Calvo Doctrine in the first place. At the renaissance of Investor-State Dispute Settlement (ISDS), States (both developing and developed) and investors viewed ISDS as stronger in promoting the rule of law than State-to-State Dispute Settlement. The idea behind this was that ISDS allows for investors to put a check on States, most specifically when they are seen as overstepping their bounds. Proponents of this argument argue that ISDS helps bring otherwise hesitant investors to markets they would otherwise avoid because of their poor legal systems. At the same time, at the advent of individual rights taking center stage in international law, ISDS was seen as even further protecting the rights of individual citizens around the globe.
Existing dispute settlement mechanisms under African investment agreements are, in many cases, not protecting the needs of African nations. Currently, the dispute settlement mechanisms built into investment agreements almost always allow for ISDS. Using ISDS, investors have been quick to challenge proposed local laws or policy decisions that may run contrary to their investment expectations. In most cases, little consideration is given to local needs or objectives. As a result, frustrations are boiling.
Several African leaders have begun to express concern over a perceived infringement of their sovereign rights and obligations being built directly into existing dispute settlement options. At the same time, African governments have historically argued that international arbitration, investors’ preferred method of dispute settlement, is extremely costly and perceived as biased towards investors, resulting in African nations having to pay large awards that further inhibit their economic growth. What has become clear is that there is diminishing confidence amongst African nations in the current dispute settlement mechanisms.
II. Investment protection and Africa’s Regional Economic Communities (RECs)
A. Overview of existing RECs
Strength in numbers is considered to be one of Africa’s most direct paths towards progress. For decades now, several regional economic blocs have been making steady progress towards growth and development. Today, Africa has an array of both trade blocs and monetary blocs. These include, among others, eight economic communities recognized as the building blocks of the African Union: the Arab Maghreb Union, the Community of Sahel-Saharan States, the Common Market for Eastern and Southern Africa, the East African Community, the Economic Community of Central African States, the Economic Community of West African States, the Intergovernmental Authority on Development and the Southern African Development Community.[4]
These economic communities have the principal purpose of integrating economic policy and facilitating the movement of goods and people between countries. Many African nations are either too small or lack the resources (both natural and in terms of capacity) to be economically viable on their own. By combining their collective knowledge and other strengths, these communities have demonstrated success in improving economic conditions in their member countries.
B. Example dispute settlement mechanisms utilized by each REC
Africa is home to a number of Regional Economic Communities (RECs), which hold substantial influence over investment policies on the continent. At the regional level, there are several African regional bodies that have begun putting in place protections against unlimited ISDS. The South African Development Community (SADC), through its Finance and Investment Protocol, for example, has limited the use of ISDS, requiring that disputes be resolved in local courts and tribunals. The East African Community (EAC) Model Investment Treaty specifically includes a provision stipulating no ISDS. Similarly, in the Common Market for Eastern and Southern Africa, the COMESA Common Investment Agreement provides for arbitration under ISDS to be brought to the COMESA Court of Justice. In this case, however, the law also leaves open the possibility that claims between parties not party to COMESA bring cases to African arbitration tribunals or to the international bodies (ICSID or UNCITRAL). This leaves open some doubt as to whether COMESA has in fact limited ISDS, given that countries belonging to different agreements may forum shop as needed. Finally, the ECOWAS Supplementary Investment Act does not provide for ISDS, but rather includes a provision that investors use local remedies to resolve disputes.
One of the issues with reform under regional bodies, however, is the lack of uniformity between policies pertaining to the same country. States that are party to several agreements are given the ability to somewhat manipulate the process by forum shopping. Larger countries with greater resources are able to select from a larger pool of possible forums and procedures, based on what will most favour them during a particular case. This disadvantages smaller countries with fewer resources and leads to overall confusion over what in fact is the governing principle and in what circumstances ISDS will actually be applied. The SADC, for example, has not made clear in which cases its dispute settlement mechanisms are to be used over the ISDS mechanism existing under overlapping agreements, making the entire system less effective and, often, leaving it ignored all together, particularly given that investors often prefer the ISDS model permitted to them under certain international agreements. As in other regions in Africa (for example, West Africa, where there exists several regional bodies) several members of SADC are also members of the COMESA. This adds to confusion and again diminishes the intention of moving away from ISDS, as investors have the option to search for more favourable forums (treaty shopping).
III. The OHADA model
One of Africa’s most successful attempts to attract additional investment and move away from the negative perspectives of the country has been the establishment of OHADA. This intergovernmental organization aims to harmonize investment and business laws in Africa with the purpose of better attracting foreign investment and increasing both intra-African and foreign trade.[5]
To date seventeen countries are parties to the OHADA.[6]
A. OHADA’s unique system of dispute settlement
i. Uniform system of laws
Member States developed a uniform set of laws, referred to as the Uniform Acts, which supersede all conflicting domestic provisions. There are currently nine Uniform Acts, which govern: General Commercial Law, Commercial Companies and Economic Interest Groups Law, Organizing Securities, Insolvency Law, Arbitration Law, Organizing Simplified Recovery Procedures and Measures of Execution, Contracts for the Carriage of Goods, Cooperative Companies Law, and Mediation Law.[7] As confirmed by the CCJA on April 30, 2011, and later confirmed by a Paris Court when upholding OHADA law over Cameroonian law,[8] these acts are supranational, rendering domestic laws inapplicable. The intent of each of these acts is to create modern, simple, legal rules that create a favourable economic environment within Member States. At the same time, in adopting these laws, OHADA Member States are looking to promote an independent and efficient judicial system. The acts are updated as necessary to reflect international trends on each subject matter. For example, the General Commercial Act, the Commercial Companies and Economic Interest Group Act, the Securities Act, the Bankruptcy Act and the Arbitration Act have all been updated. Additionally, OHADA most recently adopted the Meditation Act.[9]
As will be further detailed, the CCJA is the court of last resort for judgments rendered and arbitral awards pertaining to the Uniform Acts. This means that it is the court of last resort for all matters of business law that are governed by the acts.[10] Thus, business-related disputes must first be heard in domestic courts, unless it is determined that the competent jurisdiction has not acted on a case within 30 days.[11] This includes any appeals that may be made against a domestic court judgment. The CCJA then acts in the place of domestic supreme courts, serving as the final decision maker in cases falling under the OHADA Uniform Acts.[12] This Court does not hear matters that do not come under those acts; for example, the court does not hear criminal cases.
The Uniform Acts have helped to attract investors by creating consistency and predictability, allowing them to move from one jurisdiction to another with some confidence.[13] Since they are subject to the same set of laws in each country in which they invest within the OHADA region, investors are able to decrease the legal risks associated with investment. Moreover, the OHADA regime strengthens the rule of law by holding its Member States responsible to a supranational law. This in turn means that the protection of an investment is not tied to the stability of an individual country, but rather, to well-established laws that stand regardless of the internal conflicts or political issues that may be impacting one specific country. At the same time, investors are provided the option to have disputes arising from their investments settled by a competent body that is well-versed not only in the laws of OHADA, but also in strong international business practices. All in all, the OHADA system has had a “significant beneficial impact on access to finance, business registration and business cost savings,” according to the World Bank.[14] OHADA’s success in creating a supranational organization with harmonized laws should be applauded, particularly, as will be further explained below, in light of the number of similar attempts on the continent that have fallen short of achieving the same or similar objectives.
ii. The OHADA Common Court for Justice and Arbitration (CCJA)
One of OHADA’s most attractive accomplishments is not just its uniform laws, as previously discussed, but rather the establishment of its Common Court of Justice and Arbitration (CCJA). This court of thirteen judges provides advice on proposed uniform acts and serves as a court of cassation. This court is seen as superior to national courts in matters pertaining to the Uniform Acts and allows cases to be presented by either party or a national judge. Moreover, the CCJA facilitates and oversees arbitrations on matters related to the uniform acts. This serves to add a greater scrutiny to the impartiality of arbitration tribunals, reducing the possibility of corruption and adding greater legitimacy to dispute resolution. In creating this security, CCJA is building investor confidence that their investments will be protected. This court still has a hill to climb in building its reputation and legitimacy to a point where it is trusted as much as more established centres, such as the ICC and ICSID, but it is making strides in the right direction.[15]
In 2017, the CCJA amended its Arbitration Act, as well as the CCJA rules, making them more attractive and more efficient. These amendments were intended to put the CCJA better in line with its international counterparts, particularly the ICC, allowing it to become more globally competitive. Among other changes, the amended Act now specifically states that an arbitration may be initiated on the basis of an investment-related instrument. This means that disputes arising from the growing number of investment treaties that have been entered into by Member States may be brought to the CCJA, allowing for African settlement of the disputes, rather than international tribunals. Additionally, this new Act puts in place mechanisms for the parties to a dispute to resolve an issue amongst themselves before relying on a formal arbitration proceeding. This amendment puts the tribunal in line with international standards, creates a more effective process and gives parties an opportunity to avoid the costly and time-consuming process that is inherent to any dispute settlement.[16]
IV. Africa and ISDS
Africa has a great reason for being increasingly frustrated with the ISDS system. The continent has been a steady target of disputes brought under the system and States have over and over again seen their domestic policies questioned in front of international arbitrators. Approximately 11% of all arbitration disputes have involved African States.[17] These claims have often led to exorbitant judgments. Total claims against African States since 1993 have totalled $55.5 billion, with investors having claimed over $1 billion in damages on 10 separate occasions.[18] In one circumstance, Egypt was ordered to pay $2 billion to Union Fenosa as the result of what may be considered an exorbitant ruling.[19] Needless to say, these cases have largely contributed to Africa’s distrust of the ISDS system and desire to move away from this mechanism.
The results of growing tensions between African nations and the ISDS system have been mixed. Certain countries have reviewed the BITs to which they are party, to determine whether the ISDS provisions should be modified. Other countries, including South Africa and Tanzania have amended their domestic laws to refer investment disputes to national courts, moving even further away from the traditional ISDS model. Then, at the regional level, there has been an effort to establish regional mechanisms related to investment, as will be discussed below. Moreover, there are certain indications that the continent as a whole may not be ready to fully reject ISDS.
V. Proposed continental reforms
Taking collectively the strengths and weaknesses of each of the existing dispute settlement forums currently being used in African investment and forums that have been established in other regions, there is a strong argument that the African Union should establish a permanent tribunal for investment dispute resolution, located on the African continent. First and foremost, at this pivotal moment in the continent’s history, Africa must demonstrate that it is able to create an amicable environment for investment that will, at the same time, push the continent forward in its development objectives. To do this, when further negotiating the Dispute Resolution Protocol, the State members of AfCFTA must create a forum that will allow for equitable dispute resolution that takes into consideration the needs of States as much as private investors.
A. Following the OHADA model - Creating a common system for dispute settlement
A forum located on the African continent, with knowledge and experience of the local context within which disputes arise will be crucial in gaining the support of African nations. Having the tribunal in Africa would also reduce costs and burden to African governments. To foster accessibility, the African Union could have various satellite courts of the continental tribunal, allowing cases to be heard in a mutually agreed upon, convenient location for the parties. At the same time, there should be one primary seat where the permanent staff and judges of the court should be located on a regular basis. On a continent as big as Africa, geography is crucial in ensuring equitable treatment of parties. Moreover, it is essential that the tribunal be located in a stable, democratically strong country where it is less likely to be impacted by conflict or country turmoil in the host country.
In developing this continental court, the African Union should also take care to make sure the voices of all African nations are heard. Africa is a continent comprising 54 different countries, all at varying levels of economic development and each with its own needs. African Member States must consider this when drafting the rules for procedure for this court. Just as African nations do not want the desires of wealthy investors to overshadow their own needs, nor do smaller, less developed countries want their voices to be silenced by larger, stronger economies on the continent. If the continent is truly to develop collectively, then all countries must have an equal footing when it comes to dispute settlement. Equitable representation in the tribunal must be a top priority.
Judges at the African continental court should be from different countries throughout the continent and should have the business knowledge that foreign investors would expect of a tribunal of such stature. This diversity of judges from varying countries would help reduce the bias and corruption concerns that exist with local courts. It would also better assure that smaller countries be treated equitably when in conflict against larger, wealthier countries. Moreover, foreign investors have historically expressed concern that African courts are not familiar with business transactions and this has turned them away from using local or regional courts. In developing a continental tribunal, it is important to recognize that there are plenty of African nationals with the capacity to consider complex investment disputes that could serve on a continental court, from even the smallest countries with small economies. Utilizing local human capital from across the continent would achieve one of the key purposes of the AfCFTA, namely that local human resources are better utilized to meet local needs.
Perhaps the greatest benefit of having a continental tribunal will be the contextual awareness that is added by having local judges who are familiar with the most pressing issues on the African continent. African-bred judges will have greater concern for the impact investments in the continent are having. African judges will be more likely to consider the social, environmental and labour consequences of investments. This will give them a unique perspective on the reasoning behind why States may take certain policy decisions and allow them to weigh that reasoning with investors’ interests. This will in turn serve the purpose of balancing Africa’s sustainable development goals with investment decisions. With this in mind, judges should be carefully selected from each of the Member States to the AfCFTA. As is provided in the Articles of the current Dispute Settlement Protocol for the DSB process, judges hearing a given case should not be from either of the countries party to the dispute.
Special staffing consideration should be given to types of disputes that may be expected to arise, given the nature of investment in Africa. For example, given the predominance of the extractive industries on the continent, the court should be well-staffed with individuals familiar with these industries, who are able to comprehend the intricacies that may be argued in the event of a dispute. Moreover, staff should be aware of the interlinking between international and domestic law and should have an acute awareness as to when and to what capacity domestic law should govern. Again, it is important to reiterate that human capital is one of Africa’s most untapped or underutilized resources. The continental court, not unlike industries that stand to benefit from the AfCTA, should recognize this and find human resources that will be able to build confidence in investors, as well as State Parties, that the court is competent to resolve even the most complicated business matters.
As has also been suggested under the Dispute Settlement Protocol, the continental tribunal should have an appeals process, which allows parties to challenge decisions based on law or evident misinterpretation of facts. This appellate tribunal should have clearly defined procedures and directives, defined through the negotiation process of the AfCFTA.[20]
B. Limiting ISDS
In moving forward, African State Parties to the AfCFTA must also decide to what extent ISDS will be utilized to resolve investment disputes. As currently written, the Dispute Settlement Protocol appears to point towards State-to-State dispute settlement, with all language used referring to State Parties, without mention of investors or non-State actors. In considering the current world landscape as it pertains to ISDS, as discussed above, rather than moving completely towards State-to-State, Africa should consider the possibility for a limited, regulated ISDS. The limited approach utilized under the new USMCA and the CPTPP (the predecessor to the TPP Agreement, which is posed to be ratified by the remaining Member States) agreements offers a strong solution to many of the expressed grievances of African States, while at the same time allowing investors to bring legitimate claims for breaches of the Agreement. One limitation that could be put in, for example, as is currently alluded to under the Dispute Settlement Protocol, is a limitation on compensation as a remedy for an aggrieved party. This would alleviate the concerns over overly burdensome judgments, which, as discussed, have been one of the major sticking points in African opposition to ISDS.
The EU model that appears to be taking shape after the Achmea case, wherein the laws of the European Union are taking precedence over the needs of investors can be used as a guide in the African negotiation of the AfCFTA. The final terms of the AfCFTA should specify the supremacy of African continental law and should place clear limits over the cases in which private investors will be able to challenge domestic law. There should be express provisions built into the Agreement that protect individual countries’ right to regulate for the public good.
This said, the AfCFTA dispute settlement provisions should not outwardly exclude State-to-State dispute settlement, but rather, should adapt an either-or approach to ISDS and State-to-State. When considering State-to-State Dispute Settlement in the context of the African continent, there are several key specificities that are important to pause and consider. As has been reiterated several times throughout this book, more than anywhere else in the world, the sustainable development objectives of African nations are essential in assuring a prosperous future for the continent. States are balancing an array of different needs; everything from strengthening the rule of law to food security, from providing health services to creating jobs, must be considered if countries hope to reduce the current level of poverty and, quite frankly, if they wish to better attract foreign investment. Without improved infrastructure, for example, foreign investors will be wary of entering many markets. They will also be hesitant to enter a market that cannot guarantee protection of contracts. The long-term objectives of African States, therefore, must be built into current policies and laws.
While foreign investment will play a key role in creating strong economies that can lift countries from developing to developed, there must also be advances made in local development to assure the same trajectory. By way of example, in the extractive sectors, there is often a reliance on foreign investors to provide the technical assistance necessary to extract natural resources. At the same time, however, the country where the natural resource is located must ensure that the environment is protected, so as to not cause issues with food security or raise health concerns with local populations. There must also exist a strong system of rule of law to protect against illegal extraction and to ensure that the foreign investor is protected against third-party intervention into their projects. To improve the local economy, States must also ensure that the extraction project is involving local workers and creating better job opportunities for surrounding communities. Every project has a long list of different considerations for the State, while oftentimes the sole consideration of investors is profit.
State-to-State Dispute Settlement, the mechanism currently built into AfCFTA under the Dispute Settlement Protocol, for claims brought to the DSB, allows States to better consider their internal needs, without a direct challenge from investors who may view legitimate development objectives as contrary to potential profit. Allowing States to have a voice in arguing their public policy reasoning for certain decisions will protect against infringement on sovereignty and will allow local governments to maintain adequate control over domestic policy. Moreover, State-to-State Dispute resolution carried out on the continent will allow holistic consideration of the needs of not only individual countries, but of those of the continent. This mechanism could contribute to Africa’s intention of becoming more self-reliant.
At the same time, there are certain considerations that must be weighed in relation to State-to-State dispute settlement. For example, the willingness of States to bring a claim on behalf of a national may be hinged on the same problem of costliness that exists under international arbitration and not on the legitimate needs of an investor or on the black-and-white terms of a contractual agreement. Additionally, the capacity of African nations varies tremendously from one state to another. Larger countries with more resources[21] have greater capacity to bring claims and to then be successful in their pursuit than do smaller countries with fewer resources.[22] Moreover, there are varying levels of relationships between different governments on the continent and there is a risk that political interests may boil over into investment dispute settlement. For these reasons, a compromised position, where ISDS is limited, but State-to-State Dispute Settlement may also be used for cases that may have a more widespread impact, rather than a complete move to State-to-State Dispute Settlement is likely the best option for the continent. This would allow investors the opportunity to defend themselves when facing breaches of contract, but will, at the same time, allow governments to maintain their own sovereignty. Of course, the procedural rules built into the AfCFTA must demonstrate that States will maintain certain rights, even when faced with an ISDS claim.
Taking all of this into consideration, it is also important that Africa, as previously mentioned, develop a dispute resolution mechanism that does not create the same issues that exist under the current ISDS dominated system. What that means is that the system developed under AfCFTA should not place small economy countries with fewer resources in a more vulnerable position than their more affluent counterparts. This also means that the system should focus inward, rather than outward. The new AfCFTA dispute settlement system should be focused on the needs of African countries, rather than the desires of foreign investors. The African Union must do better to protect the interests of its Member States, all of its Member States, and must do so through creating a stronger, more equitable dispute settlement mechanism.
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* Partner, GENI & KEBE Member of the ICC Court of Arbitration
[2] FDI is defined as “an investment involving a long-term relationship and reflecting a lasting interest and control by a resident entity in one economy in an enterprise resident in an economy other than that of the foreign direct investor.” See IMF, “Foreign Direct Investment Trends and Statistics: A Summary” <https://www.imf.org/External/np/sta/fdi/eng/2003/102803s1.pdf>
[3] Prince Jaiblai, “International Journal of Financial Studies, Determinants of FDI in Sub-Saharan Economies: A study of DATA from 1990-2017,” available at: https://ideas.repec.org/a/gam/jijfss/v7y2019i3p43-d256918.html.
[4] These regional blocs work in parallel with the African Union in meeting its economic objectives. As stated by the African Union, “The RECs are closely integrated with the AU’s work and serve as its building blocks. The relationship between the AU and the RECs is mandated by the Abuja Treaty and the AU Constitutive Act, and guided by the: 2008 Protocol on Relations between the RECs and the AU; and the Memorandum of Understanding (MoU) on Cooperation in the Area of Peace and Security between the AU, RECs and the Coordinating Mechanisms of the Regional Standby Brigades of Eastern and Northern Africa.” See “Regional Economic Communities,” United Nations Economic Commission for Africa, available at: https://www.uneca.org/oria/pages/regional-economic-communities
[5] Redaud Beauchard and Mahutodji Jummy Vital Kodo, “Can OHADA Increase Legal Certainty in Africa?” The World Bank (2011), available at: http://documents.worldbank.org/curated/en/266761467990085419/pdf/659890WP00PUBL010Can0OHADA0Increase.pdf
[6] Benin, Burkina Faso, Cameroon, Chad, Central African Republic, Côte d'Ivoire, Congo, Comoros, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, the Democratic Republic of Congo (DRC), Senegal, Togo
[7] Organization for the Harmonization of Business Law in Africa, “Organization,” available at: https://www.ohada.org/index.php/en/ohada-in-a-nutshell/history.
[8] CA Paris 16/25484, 20 December 2018. See Thomas Kendra, Thibaud Roujou de Boubee and Ledea Sawadogo-Lewis, “The Paris Court upholds the supranational nature of OHADA law in dismissing annulment application,
14 February 2019, available at https://www.hlarbitrationlaw.com/2019/02/the-paris-court-upholds-the-supranational-nature-of-ohada-law-in-dismissing-annulment-application-ca-paris-16-25484-20-december-2018/.
[9] Gaston Kenfack Douajni, “Recent Developments in OHADA Arbitration,” Global Arbitration Review, 11 April 2019, available at: https://globalarbitrationreview.com/chapter/1190118/recent-developments-in-ohada-arbitration
[10] Alhousseini Mouloul, “Understanding the Organization for the Harmonization of Business Laws in Africa (OHADA), 2nd edition, June 2009, available at: http://www.ohada.com/content/newsletters/1403/Comprendre-l-Ohada-en.pdf.
[11] Mouhamed Kebe, “The Attractiveness of the New OHADA Arbitration Act,” Geni & Kebe SCP, 13 December 2018, available at: https://www.lexology.com/library/detail.aspx?g=680f77e3-1b8c-4327-87c1-183a7abc45f4
[12] Alhousseini Mouloul, “Understanding the Organization for the Harmonization of Business Laws in Africa (OHADA), 2nd edition, June 2009, available at: http://www.ohada.com/content/newsletters/1403/Comprendre-l-Ohada-en.pdf.
[13] Mouhamed Kebe, “How Can OHADA Boost Integration and Investment in Africa?” Geni & Kebe SCP, available at: https://www.hg.org/legal-articles/how-can-ohada-boost-integration-and-investment-in-africa-19603
[14] “An Impact Assessment of OHADA Reforms,” International Finance Corporation’s OHAD Investment Climate Program, 2018, available at: http://www.ohada.com/content/newsletters/4643/rapport-ohada-ifc.pdf
[15] Fagbayibo, Babatunde, “Towards the harmonisation of laws in Africa, is OHADA the way to Go?” The Comparative and International Law Journal of Southern Africa, November 2009, available at: https://www.jstor.org/stable/23253105?seq=1#page_scan_tab_contents
[16] See Mouhamed Kebe, ‘’The attractiveness of the new OHADA Arbitration Act’’https://www.dlapiperafrica.com/fr/senegal/insights/2018/the-attractiveness-of-the-ohada-arbitration-system.html
[17] “Impacts of Investment Arbitration Against African States,” Transnational Institute, October 2019, available at: https://www.tni.org/en/isdsafrica.
[18] Ibid.
[19] Unión Fenosa Gas, S.A. v. Arab Republic of Egypt (ICSID Case No. ARB/14/4)
[20] On the trend and the relevance of having an appellate body in international dispute settlements, see: Noemi Gal-Or
‘’The Concept of Appeal in International Dispute Settlement’’ EJIL (2008), Vol. 19 No. 1, 43–65 doi: 10.1093/ejil/chm054, available at: http://ejil.org/pdfs/19/1/177.pdf
[21]Examples would include South Africa, Kenya, or Nigeria, among others.
[22]Examples would include The Gambia, Gabon, Niger, among others.
