Ubuntu: A New Standard for Arbitration in Africa and Beyond

Frankline Chisom Ebere*

Justin Wallace Askins**

Tanaka Tande***

Abstract

In this article, we critically examine how existing international arbitration and specifically investor-state dispute settlement (ISDS) may be misaligned with African values and legal culture and proposes the African concept of Ubuntu as a philosophical and procedural foundation to reform norms of arbitration. Using benchmark cases such as Biwater Gauff v. Tanzania, Von Pezold v. Zimbabwe, Glamis Gold v. USA, Bear Creek Mining v. Peru, Urbaser v. Argentina, and Cortec Mining v. Kenya, we show how mainstream arbitration has disempowered community stakeholders and ignored community interests. We then delineate Ubuntu, the African philosophy of relational personhood which incorporates respect for individual dignity, communality and harmony, and make a case for its incorporation into arbitration as a foundational concept in line with “fundamental notions of justice and equity”. Procedural innovations are proposed that embrace community and non-disputing party participation, fostering transparency, and streamlining procedures to align with the values within Ubuntu. We highlight the wider consequences of an “Ubuntu-inspired” approach on sustainability, human rights, and development outcomes, drawing on contemporary legal instruments and the new AAA Model BIT. Our conclusion offers concrete policy recommendations including the insertion of Ubuntu into African and Afrocentric global treaty documents, the impact of indigenous participation and socio-environmental issues in ISDS, and the integration of African legal values into the international rules of arbitral practice where there is direct effect upon the nations of the African Continent.

            Keywords: Ubuntu, International Arbitration, Investor-State Dispute Settlement, Africa, Sustainable Development, AfCFTA, Bilateral Investment Treaties.

1.          Introduction

Arbitration has become the paramount international commercial and investment dispute resolution process, yet the norms of Investor-State Dispute Settlement (ISDS) clash with African communal values and developmental priorities. African nations and communities have decried that conventional ISDS and transnational commercial tribunals favour investor rights at the expense of public interest, environment, and domestic stakeholders.[1] Opponents allege that post-colonial BITs and ISDS panels were created without the input of Africans and that a neo-colonial framework is being foisted upon the continent.[2] As an example are the numerous African communities have been marginalized in disputes regarding land, water and natural resources despite having been directly affected.[3] This has created the drive for reform within African communities that is matched by similar international drives to foster transparency in ISDS to the benefit of all parties and stakeholders.

One promising reform strategy is the incorporation of Ubuntu; the African concept of communal identity, into the arbitral process. Ubuntu[4] emphasizes the notion that “a person is a person through other people” and stresses the importance of humanity, dignity, and social cohesion.[5] In his work No Future Without Forgiveness[6] Archbishop Desmond Tutu who both popularised and functionally implemented the concepts notes:

Ubuntu … speaks of the very essence of being human. We say … Hey, so-and-so has ubuntu. Then you are generous, you are hospitable, you are friendly and caring and compassionate. You share what you have. It is to say, my humanity is caught up, is inextricably bound up, in yours. We belong in a bundle of life. We say, a person is a person through other persons.

Originally developed as a moral philosophy, Ubuntu is increasingly being codified in African legal systems and policy. Notably, the African Arbitration Academy’s new Model BIT expressly makes Ubuntu an “overriding treaty principle” such that investments must be undertaken with human dignity and equality.[7] This is a game-changing shift: instead of shielding only investors, the Model BIT foregrounds balancing concrete economic interests of the investor with concrete and objective measures of community well-being and sustainable development that overcome an unfortunate history of ISDS having a chilling effect on a Nation’s willingness to address domestic crises of sustainability or human rights when they are party to a BIT.[8] 

This article develops a general thesis: Ubuntu has the potential to be a new African-inspired international norm of arbitration that reshapes both the substantive rules and procedures of international dispute resolution. We initially discuss current norms in arbitration and their limitations, in particular the exclusivity and narrow focus of ISDS. We then explain Ubuntu and its philosophical foundations for and in law, before illustrating how Ubuntu is distinct from Western concepts of individualism. We illustrate the potential of an Ubuntu model by highlighting procedural reform (cultural sensitivity, amicus briefs, community involvement) and efficient arbitration (flexibility, case management, expedited proceedings) that find roots in African values. Through illustrative cases, we critically analyse how an Ubuntu lens could have changed results. We also consider the broader impacts of enhanced confidence in the paradigm of arbitration, better compliance with African Union and AfCFTA goals, and promotion of sustainable development and human rights. In the process, we draw upon relevant legal literature, BITS, case law, and African legal instruments.

2.          The State of Current Arbitration Standards

International arbitration especially investor-State dispute settlement (ISDS) has grown explosively since the 1990s.[9] Hundreds of BITs and free trade agreements grant foreign investors rights to sue host states in arbitral tribunals under ICSID or UNCITRAL rules if alleged treaty obligations such as those requiring fair and equitable treatment (FET) or obligations against  expropriation are violated. Yet this global ISDS regime has itself been subject to fierce criticism for disregarding public interest, being pro-investor, and sidestepping State sovereignty and community interest.[10] A key criticism is that ISDS arbitrations are typically private proceedings between a state and a private investor with no representation for impacted communities, no transparency or local legitimacy.[11] They were crafted in an era when FDI was scarce and states willingly offered extensive protection; they did not anticipate the needs of today for sustainable development, human rights, and inclusive governance, and even when they did, they had little choice against the crucial need for FDI.[12] Hence, as noted by Peter Draper, a former South African official in the South African Department of Trade and Industry remarked, “we were essentially giving away the store without asking any critical questions or protecting crucial policy space”[13]

Authors and practitioners have noted that traditional ISDS systematically overlooks African values.[14] For instance, arbitrators sometimes use a narrow lex mercatoria approach,[15] ignoring constitutional duties of African states to protect environment, water, land and rejecting broader human rights counterclaims.[16] This can result in awards that undermine regulatory space by penalising environmental or land reforms aimed at redressing historical injustices and that are deeply unpopular with local populations.[17] The one-sided nature of BIT-based claims has provoked backlash in Africa, contributing to calls by bodies like the UNCTAD to rethink ISDS.[18]

One structural issue is that many investment treaties lack any substantive reference to communal or environmental obligations. For example, most BITs focus on the investor’s rights[19] but say little about responsibilities or affected third parties. The AfCFTA Investment Protocol, 2023[20] and African Arbitration Academy Model Bilateral Investment Treaty[21] reforms demonstrate this recognition of this disparity, where States increasingly seek to impose duties on investors while expressly safeguarding “the rights of local communities and indigenous peoples” within the treaty text.[22]

Another problem is procedural inflexibility. Until recently, ICSID and UNCITRAL rules provided no formal opportunities for non-disputing parties or amicus submissions. This meant that NGOs, communities, or other stakeholders had no mechanism to present their perspectives. Arbitrations remained largely secret, with limited public access to hearings or documents. Even today, only after pressure did ICSID allow amicus curiae submissions on a discretionary basis,[23] and hearing attendance for “non-parties” is still rare. This exclusionary approach clashes with African legal tradition, which emphasizes community consultation and consensus-building.[24]

Critics also note inefficiency and expense in ISDS, which can last years and cost millions.[25] While this is a global issue, it particularly burdens African states with limited resources and deters local businesses from claiming investment breaches. The typical tribunal of highly-paid foreign arbitrators, sitting in Geneva or Paris, is often far removed from the socio-economic realities of the African host state. In addition, enforcement litigation for the millions or even tens of millions in awards can last as long as in very large cases, putting both governments and communities under pressure.[26]

Illustratively, several high stakes cases have presented instances where arbitration clashed with community interests. Noteworthy is the Biwater Gauff Ltd. v. Tanzania,[27] which presented a water privatisation dispute where NGOs and affected citizens sought to participate. The Tanzanian government had reneged on contracts to provide affordable water, and the investor sued. The tribunal recognized “undoubtedly public interest in this arbitration,”[28] noting the dispute “raises a number of issues of concern to the wider community in Tanzania”.[29] It allowed NGOs to file amicus briefs and called for transparency, citing Methanex Corporation v United States[30] where it was held that “the arbitral process could benefit from being perceived as more open... the Tribunal’s willingness to receive amicus submissions might support the process”. Yet ultimately, the award while finding some BIT breaches awarded no damages, reflecting the complex public interest balance. The case highlights both the need for and initial absence of community voice in ISDS.

Furthermore, in Bernhard von Pezold & Ors. v. Zimbabwe,[31] a landmark case on expropriation of farmland during Zimbabwe’s land reform. The claimants are a farming family won USD 47.6m for lost farmland. However, indigenous communities living on the land petitioned to intervene as amici, invoking human rights rooted in a claim of title under customary tenure. The tribunal denied their application. In its ruling, the tribunal admitted that chiefs’ appointments under Zimbabwean law did not render communities incapable of participation, yet concluded there were “legitimate doubts as to the independence or neutrality”[32] of the petitioners, and that their proposed submissions were outside the dispute scope. It held that BITs’ reference to “rules of general international law” did not automatically include indigenous rights and, since neither party had raised indigenous issues, those considerations were excluded.[33] In effect, a conflict between private ownership and communal land was resolved solely as a BIT expropriation case, silencing the indigenous perspective. The Von Pezold award thus starkly illustrates how current regimes marginalise vulnerable stakeholders under traditional arbitration rules.

In Glamis Gold Ltd. v. United States,[34] a North American Free Trade Agreement (NAFTA) Chapter 11 case,[35] California had denied permits for a gold mine near native American cultural sites. Glamis claimed expropriation. The tribunal rejected the investor’s claims, in part because Glamis had not exhausted domestic remedies and because the contested regulations were legitimate conservation measures. Importantly, Glamis is often cited as an example of the clash between investor rights and indigenous cultural protection. Lenzerini Federico and Koivurova Timo in their treatise describe Glamis as a “symbolic example of the clash between investors’ rights and cultural heritage protection”.[36] The case showed that even under NAFTA which is often touted as an advanced regime, concerns for indigenous communities remain a central issue, and the tribunal struggled with how to classify cultural protection under “treatment” standards. This highlights that cultural sensitivity is a persistent arbitration challenge.

In addition, in Bear Creek Mining Corp. v. Peru,[37] a mining concession was revoked after violent protests by indigenous Aymara communities. Peru justified cancellation as necessary to calm unrest, blaming Bear Creek for failing to secure a “social license”[38] under ILO Convention 169.[39] The tribunal disagreed. Peru lost and was ordered to pay USD18 million. The award noted Peru had not proven a causal link between investor conduct and unrest, and that having not objected earlier, Peru could not “in hindsight” invoke lack of ILO-169 compliance.[40] This case brings both sides to light to the effect that the state tried to assert communal rights protections under ILO-169, while the tribunal required a narrow link to the investment. Bear Creek demonstrates that current arbitration tends to treat social conflict as a legalistic dispute which does not impose obligations on the investor, rather than applying a broader Ubuntu-like duty of community engagement.

In Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina,[41] a concessionaire’s contract to supply water to Buenos Aires was disrupted during Argentina’s financial crisis. Argentina counterclaimed that investor failed to maintain the concession consistent with human rights to water. Although the tribunal dismissed Argentina’s counterclaim holding that there was no contractually enforceable human rights duty on the private company, it famously stated that investors do have a negative obligation not to violate human rights.[42] It declared that a water concessionaire could not simply ignore the human right to water. Urbaser thus injects a modicum of human rights consideration into ISDS, however limitedly and obiter. However, this suggests there is a possibility of balancing investor and public obligations, aligning with Ubuntu’s emphasis on dignity.[43] While Urbaser stopped short of fully enforcing communal, human rights’ values as Public Policy, it did properly delineate between Public Policy and National Policy of a State.

Advancing under that distinction, Cortec Mining Kenya Ltd. and Cortec (Pty) Ltd. v. Republic of Kenya,[44] involved a Canadian company’s mining license for niobium and other rare earths being revoked by Kenya for non-compliance with Kenyan environmental law. The ICSID tribunal took an unusual step. It found it that it lacked jurisdiction because Cortec’s mining license was void ab-initio under Kenyan law.[45] As such the award held that Cortec’s mining licence did not constitute an ‘investment’ under the BIT and was a creature of Kenyan law, void from the outset because it had been issued in violation of Kenyan national laws to protect the environment. With no valid investment, there could be no breach or award. In effect, the tribunal enforced Kenyan environmental protection as illustrative of Public Policy and a bar to arbitration. Although Cortec was an investor claim, it validated local law and Public Policy represented as and harmonized with National Policy, reversing the usual approach of arbitration tribunals. This decision was later upheld by an annulment committee which can be seen as a too-rare African success story in arbitration. It affirmed that foreign investors must respect national environmental rules as representative of Public Policy, implying communal responsibility enshrined in National Policy. The outcome aligns with Ubuntu in holding investors to communal norms, although it was achieved through procedural reasoning on jurisdiction, not explicit adoption of Ubuntu.

These cases go on to show the shortcomings of traditional arbitration where foreign investors enjoyed a lion’s share of procedural advantages, while communities and public interests were sidelined or only grudgingly considered. Even where tribunals acknowledged the broader stakes,[46] substantive outcomes often prioritized investment protection over communal welfare. The von Pezold refusal to let communities speak illustrates a systemic bias where unless treaty text explicitly requires it, allowing tribunals to exclude human rights or environmental dimensions from the legal issues “on the table”.

In summary, the current arbitration framework tends to institutionalise an adversarial, narrow vision of disputes as between investors vs. host states. It lacks Ubuntu values such as human dignity, communal participation, and harmony. It is therefore submitted that the approach of treating rights and responsibilities in isolation can often consciously or unconsciously exacerbate conflict rather than resolve it.

3.          Ubuntu as a New Standard in International Arbitration

Ubuntu is a Nguni Bantu term conveying the idea that a person is a person through other people.[47] The well-known translation of the Zulu idiom “umuntu ngumuntu ngabantu” captures the communal ethos that individuals derive identity and dignity from the community.[48] Ubuntu embodies values of solidarity, compassion, mutual respect, and communal welfare.[49] It prescribes that rights and responsibilities are intertwined, and one’s freedom is bounded by concern for others’ wellbeing.[50] In legal contexts, African jurists have described Ubuntu as requiring compassion, a willingness to share, and an absence of malice in social relations.[51]

Philosophically, Ubuntu contrasts with Western individualism.[52] In an Ubuntu framework, law is not just a set of coercive rules but a tool to nurture social harmony and shared humanity.[53] It emphasizes restorative justice, consensus-building, and flexible resolutions that heal communities.[54] Applied to arbitration, Ubuntu suggests that dispute resolution should accommodate relational and equitable considerations and should seek solutions that maintain relationships and social justice, not just contractual entitlements.[55]

African legal systems have increasingly recognized Ubuntu. For instance, Courts in South Africa have expectedly invoked Ubuntu in interpreting the post-apartheid Constitution, noting its imperatives of human dignity, equality, and reconciliation.[56] The African Charter on Human and Peoples’ Rights similarly recognizes peoples’ rights to development and a general satisfactory environment,[57] reflecting the communal values of shared welfare. Recent model instruments for African investment law explicitly integrate Ubuntu. As noted, the African Arbitration Academy Model BIT makes Ubuntu the treaty’s overriding principle and requires that the BIT be interpreted, performed, and enforced in compliance with human dignity and quality.[58] Likewise, the BIT’s definition of “Investor” obliges investors to apply Ubuntu “in their dealings with the indigenous communities in the Territory of the Host State where the Investment is located/operated”,[59] thus recognizing Ubuntu as a corporate responsibility.

This marks a revolutionary shift. Rather than treating investors and community as strictly adversarial, treaties are beginning to enshrine the logic that investors owe a duty of solidarity to host societies because in the long-run of these investment contracts governed by treaty, it is a better business decision to do so. Similarly, the proposed AfCFTA Investment Protocol emphasizes obligations of investors and recasts dispute settlement to reflect public interests.[60] These developments explicitly recognise that African communalism must shape cross-border investment, not just state sovereignty. As such, Ubuntu is not as abstract of a concept as it might otherwise be or has been considered previously in the field of arbitration or in other fields like Political Science. Under Ubuntu, rights and duties are co-extensive and centred on communal well-being. This implies several potential changes to arbitration norms including:

3.1.      Holistic Interpretation

Treaties and contracts would be interpreted in light of community norms and social goals. For example, an obligation to “respect laws and regulations” might imply more than minimal compliance; it could embody duties to respect local land tenure, environment, and water rights as reflections of community dignity. In the same way that Good Faith is read into every contract under treaty, so should a rudimentary form of a fiduciary duty be read into every contract under treaty. Doing so respects the seminal arbitration tenet of “Fundamental Notions of Justice and Equity” and uses the concept of Ubuntu as guiding principle in operationalizing this seminal tenet for the advancement of that same tenet in Africa and beyond.

3.2.      Human Dignity and Public Interest

Awards would explicitly consider the impact on human dignity and collective rights. The tribunal in Biwater[61] hinted at this by granting NGOs a voice, but in a pure Ubuntu framework, the public interest would be a core part of the merits analysis. Rather than shielding state measures under “sovereign right”, tribunals would weigh whether investor claims undermine essential societal needs such as access to water, as in Biwater[62] and Urbaser.[63]

3.3.      Community Participation

Dispute resolution should and would incorporate voices of those affected and disaffected. This goes beyond optional amicus brief admissions. Under Ubuntu, impacted communities might even have formal stakeholder status akin to an intervener. Their interests and customary rights could be represented by local institutions or independent guardians thereby acknowledging potential national interests at the most appropriate community level. Under this arrangement, it will be possible to imagine an arbitral procedure where traditional leaders or community councils submit evidence or settlement proposals. In this way, the “stool” of arbitration receives the all-important “third leg” and joins the two parties to a dispute in a way to assure the stability of the process as much as increase acceptance of an award.

3.4.      Procedural Fairness and Access

Ubuntu demands that justice be accessible and procedurally fair. This could mean that arbitration is conducted in ways understandable and reachable to local parties.[64] The Africa Arbitration Academy Model BIT suggests diversity requirements for tribunals,[65] implicitly supporting procedural fairness and legitimacy. The authors are mindful here that diversity can be intentionally or unintentionally ”weaponized” to the detriment of its inclusion in arbitration. For at least one of the authors, diversity goes well beyond the better-known metrics to be that of ”diversity of thought”.

3.5.      Balancing Stakeholder Interests

Rather than ad hoc weighing of interests,[66] an Ubuntu-standard would require a balance between investor rights and communal welfare from the onset. For instance, if expropriation rules demand “prompt, adequate compensation”, Ubuntu might tilt the calculation toward compensating communities or states for social disruption. Investment protection would be balanced against the rights of employees, indigenous peoples, and public health. Again, the authors recognize that success of contract under treaty has certainty in business expectations at the heart or its success.

Scholarly literature on post-colonial legal theory often notes this clash. While Western law tends to conceptualize discrete rights, Ubuntu frames law as a communal covenant. For example, Judith Lichtenberg distinguished negative duties (refrain from harming) from positive duties (ensuring others flourish).[67] In an Ubuntu-informed arbitration, tribunals would consider both: investors might face not only liability for expropriation but also potential positive obligations such as to remediate pollution or maintain essential services. The Urbaser tribunal’s obiter dictum that non-State actors are under a negative obligation “not to engage in activity aimed at destroying” human rights is a step in this direction.[68] It implicitly reflects Ubuntu’s communal ethic of preventing harm.

4.          Procedural Integration of Ubuntu in Arbitration

Ubuntu’s transformative potential lies not only in substantive content but in process. Arbitration procedures can be redesigned to embed communal values at every stage:

4.1.      Inclusivity through Amicus and Stakeholder Participation

Under traditional ICSID rules, non-disputing parties had no guaranteed role. The Biwater tribunal courageously broke new ground by inviting NGOs and affected groups to submit their views. It noted that allowing “some participation of interested non-disputing parties” and gathering “information and submissions…from all relevant standpoints” was appropriate,[69] precisely because the case had “undoubtedly public interest”.[70] Ubuntu would take this further: arbitration rules such as UNCITRAL or ICC rules could be amended or interpreted to explicitly permit third-party participation. For example, UNCITRAL’s rules allow multiple claimants or joined proceedings, but do not mention amicus; yet nothing formally forbids an NGO from filing as a “co-claimant” if structured properly. At ICSID, the 2022 Arbitration Rules effective 2023 explicitly codify criteria for admitting amici, including considering their “significant interest” and potential to assist. Tribunals should interpret these provisions liberally in the spirit of Ubuntu, recognizing groups that represent communal interests even if not formally part of the investment.

4.2.      Transparency and Access to Justice

Ubuntu emphasizes empathy and trust. Arbitrations should be transparent by default, particularly when public goods are involved. States and parties could agree or treaties could require open hearings for environmental, human rights or public utility disputes. Document disclosure[71] should be maximized, and tribunals should publish their well-reasoned awards. Biwater’s emphasis on transparency as a way to legitimize arbitration can serve as a model. In this regard, the tribunal recognized that “the arbitral process could benefit from being perceived as more open… [and] a blanket refusal [of amicus] could do positive harm”.[72] Under Ubuntu, arbitration cannot be a secret game for the benefit of the elite, it must openly show how decisions serve community values.

4.3.      Cultural Sensitivity and Local Knowledge (Shawara)

The AAA Model BIT introduces an innovative concept, Shawara, to incorporate traditional knowledge and oral history as evidence.[73] Procedurally, tribunals could be encouraged to consider indigenous knowledge or customary land titles. This might take the form of expert witnesses from local communities or setting up panels of elders. While not standard in commercial arbitration, such cultural flexibility is common in African dispute traditions. In practice, this could mean permitting affidavits (or live testimony) about customs that affect property rights or environmental practices, even if not strictly “legal evidence.” Tribunals might also sit in venues closer to the project area to signal respect and allow local input.[74] Some existing rules already permit hearings by video or location flexibility. Embracing Ubuntu means using them to bring justice physically and figuratively closer to the people.

4.4.      Local Counsel and Representation

To integrate Ubuntu, procedural rules should facilitate involvement of domestic counsel and experts from the host country. African lawyers, academics and government officials often have deep knowledge of cultural norms and social contexts. Tribunals should welcome their participation and state-of-knowledge inputs. For example, African legal tradition places emphasis on mediation and reconciliation; tribunals could allow phases of mediation or hybrid processes before adversarial hearings. Some treaties (like those in East Africa) permit state courts to be involved in evidence-gathering.[75] Similarly, Ubuntu-inspired frameworks might interface arbitration with local community dispute committees who could as act as fact-finders for certain issues such as customary land rights in the same way as an expert witness may be called upon by arbitrators to frame a certain issue for them.

4.5.      Balancing Transparency and Confidentiality

While arbitration is private by default, many investment disputes implicate public services.[76] Ubuntu suggests that the social welfare dimension outweighs private confidentiality. Thus, procedural rules could narrow confidentiality for issues of public interest. This might be enacted by state immunities or legislative amendments, for example, requiring that BITs or domestic laws allow disclosure of arbitral facts that concern public health, environment or large-scale state policy.

4.6.      Third-Party Funding and Ethics

Non-traditional financing via third-party funders can raise conflicts with Ubuntu, as funded investors may prioritize profit over community. Procedurally, tribunals could require disclosure of funding sources and impose ethical duties on funders which rarely happens now. This would mirror the communal scrutiny typical in African societies, where a venture must have broad community backing, not just international sponsors.[77] Rules might also penalize frivolous funding by early dismissal of merits in cases manifestly without public justification.[78]

In essence, an Ubuntu procedural framework would transform arbitration from an exclusive legal contest into a participatory, transparent process attuned to local values. It would institutionalize roles for affected communities and emphasize reconciliation.

5.          Streamlining Arbitration Procedures

While integrating Ubuntu calls for broadening participation, it also demands making arbitration more efficient and accessible for the sake of justice to all parties. Streamlining procedures aligns with Ubuntu’s emphasis on fairness and avoids protracted conflict. Recent reforms under ICSID’s 2022 Arbitration Rules exemplify this trend, which we discuss as one model of “Ubuntu-friendly” efficiency:

5.1.      Expedited Proceedings

The 2022 ICSID Arbitration Rules introduce an opt-in expedited procedure under Rules 75 - 86 whereby parties can choose a sole arbitrator and faster schedules. Once opted in, the tribunal must issue awards within 240 days of closing submissions. This sharply reduces the typical 3-5 years ISDS saga,[79] which can be ruinous for states and small investors alike. Expedited rules encourage less adversarial hearings, less discovery, and more targeted written submissions. Under Ubuntu, swift justice is also fair justice, preventing lingering uncertainty for communities and investors. A practical recommendation is that African BITs and investment agreements mandate or at least incentivize such expedited procedures.

5.2.      Case Management Conferences

Rule 31 of the 2022 ICSID Arbitration Rules now requires at least one case-management conference after constitution of the Tribunal. The goal is to narrow issues, agree on uncontested facts, and set procedural timetables early. This prevents surprises and lengthy discovery battles. From a communal standpoint, early case management can also identify if stakeholder briefs or third-party information are needed, allowing the tribunal to proactively invite community input on specific issues. We recommend adopting similar pre-hearing management in other fora such as UNCITRAL-based cases, and ICSID Additional Facility among others. Even within a domestic legal system, courts can encourage parallel bilateral negotiations or mediation sessions to resolve parts of a dispute, reflecting Ubuntu’s preference for amicable solutions. This approach respects both the goal of increasing participation and transparency while respecting the Kompetenz-Kompetenz analysis of the Tribunal that frames jurisdiction.

5.3.      Screening Frivolous Claims

Rule 41 of the 2022 ICSID Arbitration Rules allows tribunals to dismiss claims or objections on jurisdiction “manifestly without legal merit” within 60 days. Such early filtering is crucial as it discourages abusive claims and ensures only substantive disputes proceed. For developing countries, this is especially important to protect scarce resources. A recommendation is to incorporate this mechanism broadly. African model treaties and institutional rules should explicitly permit dismissal of baseless claims, reducing burdens on states and expediting justice for meritorious claims and allocate costs accordingly to discourage abuse of process.

5.4.      Consolidation of Related Disputes

Rule 46 of the 2022 ICSID Arbitration Rules now allows consolidation or coordination of multiple claims involving the same issue or facts. This prevents conflicting awards and duplication. In communal matters, related grievances such as a mining project affecting multiple communities, or successive investments in the same sector could be resolved together. We suggest extending consolidation authority. For example, African national courts or arbitration centres could coordinate multi-party disputes to ensure a comprehensive solution. The authors are mindful that there is no need for the concept of binding precedent in arbitration, but rather that harmonization of award(s) is the goal of consolidation.

5.5.      Diversity and Expertise of Tribunals

While not a procedural rule in ICSID 2022 Arbitration Rules, the AAA Model BIT explicitly requires that tribunals have diverse composition with an African arbitrator and gender balance “unless not possible”.[80] From an Ubuntu perspective, this ensures sensitivity to local context and a plurality of viewpoints. We urge institutions to formalize such guidelines. For instance, African states could require their arbitrator appointees to have expertise in human rights and environment, or insist in procedural orders that an arbitration include at least one panel member familiar with customary law or social issues.

5.6.      Encouraging Early Settlement and Mediation

Procedural rules can build in opportunities for amicable settlement, reflecting Ubuntu’s ethos of restorative justice. Under ICSID, ad hoc committees have noted tribunals’ duty to consider settlement encouragement.[81] Yet many BITs remain silent on mediation.[82] African lawmakers should integrate clauses for mediation or expert determination before litigation as in many domestic laws, or even require that the pre-condition of an exhaustion of local remedies to include dialogue with affected communities.

6.          Broader Impacts of an Ubuntu-Inspired Framework

Adopting an Ubuntu-centred arbitration paradigm would have far-reaching effects:

6.1.      Sustainable Development and Environmental Protection

With Ubuntu’s emphasis on communal welfare, arbitrations would be more likely to uphold environmental and public health norms. For example, in Cortec,[83] the tribunal’s deference to Kenyan environmental laws prevented a polluting mine. Embedding Ubuntu would ensure that all investment disputes consider the precautionary principles and the rights of future generations aligning arbitration with the Article 24 of the African Charter and Agenda 2063 goals. Tribunals would weigh an investor’s impact on land and water alongside treaty rights, possibly integrating environmental experts into the proceedings. As Biwater noted,[84] access to water is a “public interest” beyond ordinary contracts; an Ubuntu lens would explicitly treat it as such. Similarly, human rights obligations like the right to water and housing would become part of the arbitral rubric, as the Urbaser award suggests.[85]

6.2.      Community Trust and Social License

If communities see arbitration as fair and respectful of their values, conflicts may be resolved before reaching tribunals.[86] The Bear Creek case shows how lack of trust can escalate to violence.[87] Under Ubuntu-guided systems, companies would need to obtain and maintain a true social license by ongoing consultation, failure of which could be raised defensively. Conversely, states would gain credibility by demonstrating they care for communal rights. In effect, arbitration outcomes would have more legitimacy in Africa if local stakeholders felt heard. This in turn encourages foreign investors to adopt socially responsible practices to avoid disputes.

6.3.      Legal and Institutional Development

Ubuntu arbitration would spur the creation of new institutional frameworks. The AfCFTA Investment Protocol and African Model BITs already move in this direction, but incorporation of Ubuntu could lead to formal African arbitration centres or tribunals that blend common law and customary principles.[88] For instance, courts and tribunals could develop binding precedents on how community rights interface with BIT obligations. This jurisprudence could inform domestic law, where courts rely on an ubuntu-based arbitral principle in adjudicating local disputes.

6.4.      Balance of Power

A shift to communal values would redress the investor-centric bias of existing ISDS.[89] Over time, African states would negotiate BITs from a position of parity, demanding corporate social responsibility clauses and curbing ICSID’s absolutism. The AAA Model BIT exemplifies this balance: it affirms state regulatory space and investor duties as co-equal rights.[90] An empirical study would likely find that adopting Ubuntu principles reduces frivolous claims which is good for states and enhances investor security by clarifying permissible conduct which is good for investors.

6.5.      Precedent for Global Arbitration Reform

African leadership on Ubuntu could influence the broader arbitration community. Already, concepts like “interests of the community” have appeared in some Latin American awards.[91] The Brazilian concept of “social value of contract“ in the calculation of damages indicates that flexibility exists with respect to the point in the process most effective to achieve the goals elucidated in this paper. If African tribunals systematically integrate Ubuntu, multilateral organizations like the United Nations, ICSID might update guidelines to reflect it. One could foresee an ICC arbitration rule revision to allow community interveners, or UNCITRAL revising treaty negotiation guides to emphasize sustainable development. In a world grappling with climate change and inequality, the Ubuntu standard could inspire a global shift in investment law.

6.6.      Synergy with AfCFTA and Regional Integration

The Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment envisions abolishing old BITs and harmonizing protections.[92] Embedding Ubuntu in the AfCFTA regime would ensure that pan-African integration does not entrench predatory investment practices. For example, an AfCFTA Investment Tribunal could incorporate customary international law of human rights and environment into its decisions, effectively operationalizing Ubuntu at the continental level. This would be consistent with AfCFTA’s broader aims of shared prosperity. As the AfCFTA Protocol progresses, negotiators should explicitly allow for Amicus Curiae inputs from civil society and for factoring into disputes concerns like indigenous rights and local development.

6.7.      Impact on Non-African Investment

If Ubuntu principles are enshrined, it would also affect global investors in Africa. They would have clear notice to engage responsibly with communities or risk losing protection as in Cortec.[93] This could initially deter some exploitative investment, but overall would raise standards of practice. Non-African courts and investment treaty tribunals may also find African jurisprudence persuasive on communal issues and import it into their own arbitration analysis. For instance, a NAFTA or Energy Charter tribunal might cite African awards recognizing a duty to consult indigenous peoples under Ubuntu logic.

6.8.      Broader Legal Context

The push for Ubuntu also resonates with multilateral developments. The United Nations Guiding Principles on Business and Human Rights (UNGPs)[94] and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct,[95] encourage stakeholder engagement, reflecting the spirit if not the name of Ubuntu. Similarly, the concept of “Free, Prior, and Informed Consent” (FPIC) for indigenous peoples under ILO Convention 169 or UNDRIP aligns with consulting communities before projects.[96] An Ubuntu arbitration standard would make FPIC legally significant as tribunals would require investors to adhere to FPIC or face denial of protection. Indeed, Bear Creek turned on ILO-169 and consultation.[97] Though the ICSID award faulted Peru for raising ILO-169 too late, an Ubuntu framework would give such rights earlier weight in the process.[98]

7.          Conclusion

Ubuntu can and should become a new standard for arbitration in Africa and beyond, guiding both the substance and procedure of dispute resolution. The current ISDS regime exemplified by many foreign investment arbitrations has repeatedly faltered in delivering justice that resonates with African values. As the cases discussed illustrate, communities frequently find themselves without a voice, and public interests are often sidelined.

Adopting Ubuntu in arbitration means rebalancing the scales of justice. It is not an abandonment of investor protection, but rather a recognition that productive and profitable investment flourishes in societies where all humans are respected. The investor-state contract, under an Ubuntu lens, is a partnership for shared prosperity, not a license for one-sided advantage. The cases from Biwater to Cortec show that creative, community-minded dispute resolution is both necessary and possible. Africa’s rich philosophical heritage thus offers a timely corrective to global arbitration, one where the humanity of every person not just the capital value of every asset is the measure of legal decisions.

* Frankline Chisom Ebere, Junior Research Fellow, Lex Lata Centre for International Law and Comparative

Constitutionalism in Africa; Final Year Law Student, Ahmadu Bello University, Zaria. franklinechisom.ebere@gmail.com

** Justin Wallace Askins, Vice-Chair, International Arbitration Committee, American Bar Association and Independent Arbitrator, Askins Advocates Arbitration, LLC. judaskins@gmail.com

*** Tanaka Tande, TN Zunzanyika Associates. tandet6@gmail.com

References

[1] Talkmore Chidede, “Investor-State Dispute Settlement in Africa and the AfCFTA Investment Protocol - Tralac Trade Law Centre” (TRALAC TRADE LAW CENTRE, December 11, 2018) <https://www.tralac.org/blog/article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html>

[2] Weghmann, V., & Hall, D. (2021). The unsustainable political economy of investor–state dispute settlement mechanisms. International Review of Administrative Sciences, 87(3), 480-496.

[3] For instance, in Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania ICSID Case No. ARB/05/22 (Award 24 July 2008), the tribunal awarded Biwater Gauff compensation for Tanzania’s termination of its water‑and‑sewerage contract, but made no provision for affected Tanzanian households or the Dar es Salaam communities who bore the brunt of service disruptions. Local users, many living in informal settlements, had neither been party to the dispute nor consulted, despite their reliance on the very infrastructure at issue.

Similarly, in Bernhard von Pezold and Others v. Republic of Zimbabwe ICSID Case No. ARB/10/15 (Award 28 July 2015), despite Zimbabwe’s land‑reform programme aimed at redressing historic inequities, the tribunal found expropriation unlawful and ordered the state to restore farms and pay damages, without engaging indigenous or tenant farmers who had occupied and farmed those lands for over a decade. The award entirely bypassed communal land‑use customs and the rights of Black Zimbabwean farmers under customary tenure.

In Piero Foresti, Laura de Carli & Others v. Republic of South Africa ICSID Case No. ARB(AF)/07/01 (Award 4 August 2010), foreign investors challenged South Africa’s Black Economic Empowerment (BEE) legislation requiring a 26 percent divestiture of mining rights to historically disadvantaged communities. The tribunal struck down aspects of the BEE requirement as expropriatory even though it was designed to restore communal and indigenous ownership effectively sidelining socio‑economic redress in favour of shareholder interests

[4] Known as Ubuntuhe in the Nguni languages

[5] Maqutu, T. M. (2018). Ubuntu and African philosophy and Ubuntu: concepts lost in translation.

[6] Tutu, D. (2000). No future without forgiveness. Fellowship, 66(5-6), 18.

[7] Article 1, Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[8] United Nations Document Symbol A/78/168, 13 July 2023 “Paying Polluters: The Catastrophic Consequences of Investor-State Dispute Settlement for Climate and Environment Action and Human Rights”

[9] Osmanski, E. (2017). Investor-State Dispute Settlement: Is There a Better Alternative. Brook. J. Int’l L., 43, 639.

[10] Menon, S. (2022). A tale of two systems: The public and private faces of investor-state dispute settlement. ICSID Review-Foreign Investment Law Journal, 37(3), 619-637.

[11] Ibid.

[12] Ibid.

[13] Provost C and Kennard M, “The Obscure Legal System That Lets Corporations Sue Countries” The Guardian (October 19, 2022) <https://www.theguardian.com/business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid>

[14] Adekemi, A. O. (2024). The Existing ISDS System and Its Criticism from an African Perspective. In Attracting African States Participation in a Multilateral Investment Court: Reforming Substantive and Procedural Law through an MIC (pp. 35-93). Cham: Springer Nature Switzerland.

[15] Arbitrators focus strictly on these transnational commercial rules, which prioritise the rights of investors and contractual agreements.

[16] Florou, A. (2020). Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties (Vol. 14). BRILL.

[17] See Bernhard von Pezold & Ors. v. Zimbabwe (ICSID ARB/10/15, Award 2015) which concerned Zimbabwe’s land reform program, a farming family was awarded USD 47.6 million for lost farmland. Indigenous communities who lived on that land and held title under customary tenure were denied their application to intervene in the case. The tribunal resolved the dispute solely as a Bilateral Investment Treaty (BIT) expropriation case, which had the effect of “silencing the indigenous perspective”.

[18] UNCTAD, “Member States and Civil Society Call for Reform of Investor State Dispute Settlement” (UN Trade and Development (UNCTAD), November 6, 2014) <https://unctad.org/news/member-states-and-civil-society-call-reform-investor-state-dispute-settlement>

[19] Fair treatment, free transfer, full protection and security, etc.

[20] Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment, adopted in Addis Ababa, Ethiopia, on 19 February 2023

[21] Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[22] Few BITs which are known to adopt similar approach and derogate from the norms include the celebrated Morocco-Nigeria BIT, 2016 which is often cited as a leading example of a “sustainable development-friendly” investment agreement. It contains robust provisions that affirm the state’s right to regulate for environmental protection, include specific obligations for investors regarding corporate social responsibility and environmental impact assessments and exclude public welfare regulations from indirect expropriation claims, giving the states more policy space.

[23] The ICSID rules were first amended in 2006 to introduce Arbitration Rule 37(2) which provide for the discretionary admission of amicus briefs. Relevantly, the 2022 rules, effective in 2023, replaced the old rule with a more detailed provision. Rule 67 explicitly outlines the procedure and criteria for admitting non-disputing party submissions, including the requirement that the submission address a matter within the scope of the dispute and that the party has a “significant interest” in the proceeding.

While the standard UNCITRAL Arbitration Rules historically lacked a formal mechanism, the 2013 Rules on Transparency introduced one specifically for investment treaty disputes. Article 4, titled “Submission by a Third Person,” empowers the arbitral tribunal to accept written submissions from third persons (amicus curiae) after consulting the disputing parties.

[24] Kariuki, F. (2007). African traditional justice systems. The Asia Pacific Journal of Anthropology, 8, 75-91.

[25] According to a 2021 Empirical study by the British Institute of International and Comparative Law (BIICL), the costs associated with ISDS are substantial with the median cost for investors being US$3.8 million. Additionally, the median cost for respondent states is US$2.6 million. Notably, the tribunal also incurs significant costs going up to US$740,000 in median computation.

Furthermore, on the duration, the median length is 3.8 years. In recent trend however, proceedings have been taking longer; cases with decisions published between June 2017 and May 2020 had a mean length of 5.5 years. It is also noteworthy that the duration strongly correlates with the amount in dispute. For claims over US$1 billion, the mean duration was approximately eight years, compared to 3.6 years for claims under US$50 million.

See Hodgson, M., Kryvoi, Y., & Hrcka, D. (2021). 2021 Empirical Study: Costs, Damages and Duration in Investor-State Arbitration. BIICL, 10, 28.

[26] Ibid.

[27] Biwater Gauff Ltd. v. Tanzania (ICSID Case No. ARB/05/22, Award 2008)

[28] Ibid at Para 358, Page 101, the tribunal adopted the words of the arbitral tribunal in Methanex Corporation v United States, Final Award on Jurisdiction and Merits, (2005) 44 ILM 1345, Inside US Trade, 19 August 2005, 12, IIC 167 (2005), 3rd August 2005, Ad Hoc Tribunal (UNCITRAL)

[29] Ibid at Para 358, Page 100

[30] Methanex Corporation v United States, Final Award on Jurisdiction and Merits, (2005) 44 ILM 1345, Inside US Trade, 19 August 2005, 12, IIC 167 (2005), 3rd August 2005, Ad Hoc Tribunal (UNCITRAL)

[31] Bernhard von Pezold & Ors. v. Zimbabwe (ICSID ARB/10/15, Award 2015)

[32] Ibid at Para 38 Page 9

[33] Ibid at Para 57, page 18

[34] Glamis Gold Ltd. v. United States (NAFTA, UNCITRAL Award 2009)

[35] Relative to investments. Although not African, it addresses indigenous heritage

[36] Lenzerini, F., & Koivurova, T. (2016). Implementation of the rights of indigenous peoples: Committee on the Rights of Indigenous Peoples Report for the 2016 Johannesburg Conference.

It is however arguable that as involving the United States of America, the decision was less likely to have been resolved against the USA, whereas a similar factual circumstance involving an African state would have resulted in a varied decision.

[37] Bear Creek Mining Corp. v. Peru (ICSID ARB/14/21, Award 2017)

[38] The concept of a “social licence” in the context of ILO Convention 169 isn’t explicitly defined within the convention’s text. However, the convention’s provisions, particularly regarding consultation, participation, and respect for indigenous and tribal peoples’ rights, implicitly guide the development and maintenance of a social licence in a way that is relevant to large-scale development projects and other initiatives impacting these communities.

[39] ILO Convention C169, Indigenous and Tribal Peoples Convention, 1989 (No. 169), adopted 27 June 1989, entered into force 5 September 1991.

[40] Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Para 412, page 142

[41] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina (ICSID ARB/07/26, Award 2016)

[42] Ibid at paragraphs 1193 to 1210.

[43] It is submitted in this regard that the right to water embodies human dignity.

[44] Cortec Mining Kenya Ltd. and Cortec (Pty) Ltd. v. Republic of Kenya (ICSID ARB/15/29, Award 2018)

[45] Ibid.

[46] as in Biwater and Cortec

[47] Maqutu, T. M. (2018). Ubuntu and African philosophy and Ubuntu: concepts lost in translation.

[48] Ibid.

[49] Hailey, J. (2008). Ubuntu: A literature review. Document. London: Tutu Foundation, 1-26.

[50] Ibid.

[51] S v Makwanyane and Another (CCT3/94) [1995] ZACC 3

[52] Eze, M. O. (2005). Ubuntu: A Communitarian Response to Liberal Individualism?. University of Pretoria (South Africa).

[53] Kamga, S. D. (2018). Cultural Values as A Source of Law: Emerging Trends of Ubuntu Jurisprudence in South Africa. African Human Rights Law Journal, 18(2), 625-649.

[54] Ibid.

[55] Maïnkade, B. F. (2023). Ubuntu, human rights and sustainable development: Lessons from the African Arbitration Academy’s Model Bilateral Investment Treaty. South African Journal on Human Rights, 39(4), 320-340.

[56] Of major importance, see S v Makwanyane and Another (CCT3/94) [1995] ZACC 3

Furthermore, see Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17 where the Constitutional Court dealt with unfair discrimination based on HIV status. The court found that denying employment based on HIV status was discriminatory and irrational. The court upheld the argument that people must show Ubuntu to people living with HIV.

In Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17, the court dealt with dealt with the unconstitutionality of the customary law of primogeniture (inheritance by the eldest male), the court’s reasoning was infused with the values of equality and human dignity, which are central to Ubuntu. The judgment aimed to create a more inclusive and fair system that protects all members of a family.

[57] Article 24, African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.

[58] Article 1(1), Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[59] Article 1(2)(b), Ibid.

[60] Community reading of Part V Investor Obligations of the Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment, adopted 18 February 2023

[61] Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania ICSID Case No. ARB/05/22 (Award 24 July 2008)

[62] Ibid.

[63] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina (ICSID ARB/07/26, Award 2016)

[64] Language accommodations, hearings in Africa, simplified rules for smaller claims, etc.

[65] Article 22, (E), Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[66] “ad hoc weighting of interests” refers to a method of decision-making in arbitration that is considered unsystematic, discretionary, and situational.

[67] Lichtenberg, J. (2010). Negative duties, positive duties, and the “new harms”. Ethics, 120(3), 557-578.

[68] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina (ICSID ARB/07/26, Award 2016) at Para 1199 Page 318

[69] Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania ICSID Case No. ARB/05/22 (Award 24 July 2008) at Para 358, Page 100

[70] Ibid.

[71] as already mandatory in ICSID under Rule 48

[72] Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania ICSID Case No. ARB/05/22 (Award 24 July 2008) at Para 358, Page 100

[73] Annex 3 Procedure for Amicus Curiae or Shawara Submissions, Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[74] e.g., a hearing in Nairobi or Lagos rather than Geneva

[75] For instance, the East African Community (EAC) Treaty, Article 34, allows the EACJ to issue preliminary rulings at the request of national courts, demonstrating judicial assistance. Similarly, the COMESA Treaty, Article 28, grants the COMESA Court of Justice jurisdiction over certain arbitration matters and permits preliminary rulings requested by national courts. In the Southern African Development Community (SADC), the SADC Protocol on Mutual Legal Assistance in Criminal Matters (2002) mandates legal assistance between judiciaries, and Article 15 of the SADC Protocol on the Tribunal (2000) requires exhausting local remedies before a state action, linking regional and national judicial processes.

[76] E.g. water, mining, energy

[77] Odimegwu, I., & Omazu, E. (2021). African communalism in African societies in the twenty-first century. Flash: Journal of Philosophy, Religion & Peace Studies, 10(1).

[78] ICSID Rule 41 now allows résumé judgment on jurisdiction or merits

[79] King & Wood Mallesons. (24 November 2024) KWM Explainers - Investor-state dispute settlement. https://www.kwm.com/global/en/insights/latest-thinking/investor-state-dispute-settlement.html

[80] Article 22, (E), Africa Arbitration Academy Model Bilateral Investment Treaty for African States

[81] For example, in S.P.P. (Middle East) Ltd. v. Egypt (ICSID Case No. ARB/84/3), the proceedings were discontinued following a successful amicable settlement during the annulment phase, illustrating how ad hoc committees can facilitate or support negotiated resolutions pursuant to ICSID Arbitration Rule 43(1).

[82] For instance, the pioneering Germany-Pakistan BIT (1959) and the Egypt-United Kingdom BIT (1975) are structured this way, with their dispute resolution articles moving from negotiation to arbitration without a distinct mediation phase.

[83] Cortec Mining Kenya Ltd. and Cortec (Pty) Ltd. v. Republic of Kenya (ICSID ARB/15/29, Award 2018)

[84] Biwater Gauff Ltd. v. Tanzania (ICSID Case No. ARB/05/22, Award 2008)

[85] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina (ICSID ARB/07/26, Award 2016)

[86] Akintayo, O. D., Ifeanyi, C. N., & Onunka, O. (2024). Enhancing domestic peace through effective community‐based ADR programs. Global Journal of Advanced Research and Reviews, 2(02), 001-015.

[87] Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21

[88] Carlos Hernández Durán, Tiago Lopes Veiga, Alexandra Silva. (2023) Ubuntu: the Africa Arbitration Academy Model Bilateral Investment Treaty | Uría Menéndez. https://www.uria.com/en/publicaciones/8497-ubuntu-the-africa-arbitration-academy-model-bilateral-investment-treaty

[89] Ciocchini, P.L. and Khoury, S., 2018. Investor State Dispute Settlement: Institutionalising “Corporate Exceptionality”. Oñati Socio-legal Series [online], 8 (6), 976-1000.

[90] The Africa Arbitration Academy (AAA) Model Bilateral Investment Treaty (BIT) exemplifies a balanced approach by preserving the state’s right to regulate for public interest objectives (Article 17) and clarifying that such non-discriminatory measures do not constitute expropriation (Article 6). This is balanced against clear investor duties, including the obligation to comply with all host state laws (Article 15), respect human rights (Article 10), adhere to environmental standards (Article 9), prevent corruption (Article 12), and contribute to sustainable development (Article 18). This structure intentionally treats state regulatory space and investor obligations as co-equal pillars of the investment relationship.

[91] For instance, in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia v. Argentina (ICSID ARB/07/26, Award 2016), the tribunal acknowledged the “fundamental right of access to water” for the affected population and, in a landmark move, accepted jurisdiction over a human rights-based counterclaim against the investor, affirming that investors have a negative obligation not to violate human rights. This was reinforced in cases like Suez, Sociedad General de Aguas de Barcelona S.A. v. The Argentine Republic ICSID Case No. ARB/03/17, where tribunals permitted non-governmental organizations to file amicus curiae briefs due to the “special public interest” involved in disputes over essential public services like water distribution.

[92] Article 49 (1), Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment, adopted by the 36th Ordinary Session of the Assembly of the African Union in Addis Ababa, Ethiopia on 18 February 2023.

[93] Cortec Mining Kenya Ltd. and Cortec (Pty) Ltd. v. Republic of Kenya (ICSID ARB/15/29, Award 2018)

[94] The United Nations Guiding Principles on Business and Human Rights (UNGPs) https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf

[95] OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, https://www.oecd.org/content/dam/oecd/en/publications/reports/2023/06/oecd-guidelines-for-multinational-enterprises-on-responsible-business-conduct_a0b49990/81f92357-en.pdf

[96] Article 6 and 15, ILO Convention 169: Indigenous and Tribal Peoples Convention, 1989

Article 10, 19, 29 and 32, United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007

[97] Bear Creek Mining Corp. v. Peru (ICSID ARB/14/21, Award 2017)

[98] Ibid.