NIU Journal of Humanities

NIU Journal of Humanities Copyright©2025

Nexus International University ISSN: 3007-1704; 10(1): 249-259

Analyses of the Applicability of International Arbitration in Investor-State Dispute

Settlement in East Africa

GODSWILL OWOCHE ANTAI, OLAWUNMI OPEYEMI OBISESAN,

MARIA EDET UMO, CHARLES IFEASINACHI OKONJI
Kampala International University, Uganda

DENNIS EDET OKPONG

Nigerian Navy

Abstract. This study delves into the practical enforcement of arbitral awards relating to
implementation of international arbitration within investments rendered against the sub-Sahara East
the Investor-State Dispute Settlement (ISDS) African country Kenya (Schreuer, 2022).
framework across East African countries. It In East Africa, the membership of the International
examines the complex interplay between regional Centre for Settlement of Investment Disputes and
legal structures and international arbitral norms, the involvement in bilateral investment treaties of
scrutinizing the extent to which existing treaties and four out of the five selected countries could be
domestic legislation facilitate or hinder effective deemed as mechanisms that foster the popularity of
dispute resolution. Focusing on recent ISDS cases, international arbitration in East Africa (Antai, 2024).
the research analyses the procedural and substantive This implies that, as well as in other parts of the
challenges faced by both investors and states, world, an understanding of this topic by legal
particularly concerning transparency, enforcement practitioners, lawmakers, and civil society is
of awards, and the influence of regional economic fundamentally imperative. In addition, just like the
communities. The analysis further evaluates the other mechanisms of resolution of disputes,
impact of varying levels of institutional capacity and international arbitration should also be conceived
legal harmonization on the predictability and within a much broader context touching on issues
fairness of arbitral outcomes. The article also further that are not only of a legal nature (Antai, 2024).
identifies best practices and potential reforms aimed
at enhancing the efficacy and legitimacy of 2. Historical Development of International
international arbitration as a tool for resolving Arbitration
investment disputes in the region. It underscores the
critical need for context-specific adaptations of The call for the need to build institutions to address
international arbitration to reflect the unique legal investor-State disputes is one among many
and economic realities of East Africa. milestones in the evolution of international
commercial arbitration. It is possible that structured
Keywords: Arbitration, Investor-State Dispute arbitral process arose from forms of dispute
Settlement (ISDS), Investment Disputes resolution that long predate the idea of justice
emerging at a fixed location. Indeed, prior to the
1. Introduction construction of specific buildings where disputes
were settled, strategies for settling disputes
This work has assessed international arbitration, particularly during trading activities were largely
which under certain circumstances is known as organic (Edet et al, 2022). Caravanserais in Asia,
Investor-State arbitration or suits, within a wider and arched bottlenecks or Colonnades in Luba,
discussion on Investor-State dispute settlement Central Africa had spaces that accommodated the
mechanisms in the context of disputes arising from settlement of disputes that arose during trading
foreign investments in East Africa (Aidonojie, 2023; activities. It was not difficult, therefore, to see the
Aidonojie et al., 2022). After presenting the need for a mobile approach to dispute settlement
introduction and the aim of this work, the study with dispute settlers traveling with the visiting
proceeds with the analysis of historical background merchants; in the same manner that the visiting
of international arbitration and the legal framework merchants included felucca boats on the Nile, which
of international arbitration in the selected countries. carried the goods and family, and which remained
The work also provides a case study assessing the with the visiting merchant throughout the trade

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adventure. The transition from the traditional forms arbitration in East Africa is a complex matrix
of dispute settlement appears to have largely been comprising domestic laws, international
driven by the organised state with Abduwaaal agreements, diplomatic arrangements and
decreeing that judges were to travel the land commercial contracts (Jufri et al., 2024; Haruna et
delivering justice (Aidonojie et al., 2021; Aidonojie al., 2024). This framework varies among individual
& Victoria, 2022). Nevertheless, the formal countries and can take many forms (Antai, 2024).
arbitration had limitations as demonstrated by court However, this analysis will focus specifically on the
cases in places as far as Carthage and Cyprus legal infrastructure that applies to Tanzania, Uganda
(Mbithi, 2014). and Kenya, once known together as the East African
Community. The countries involved, individually
The enforcement of foreign awards among East and as a region, are subject to various international
African partners has also led to an additional treaties and agreements such as BITs, multilateral
intersection with investor treaty arbitration. In two investment treaties and international conventions. In
particular occasions East African countries have addition, contracts and domestic law provide for
taken issue with the enforcement of foreign awards separate arbitration mechanisms and thus form part
within east Africa (Aidonojie et al., 2020; Aidonojie of the broader framework of international arbitration
& Francis, 2022). The first incident occurred in 1980 (Dozler and Schreuer, 2022).
when an ICC award was registered in Kenya, and
subsequently the arguments set forth by the recipient 3.1 Bilateral Investment Treaties (BITs)
of the award led the Kenyan High Court to set aside
the award (Aidonojie et al., 2023; Aidonojie et al., Bilateral Investment Treaties (BITs) constitute the
2024). The incident led to an amendment of the backbone of investment protection and the
Indian Arbitration Act to prevent enforcement of associated legal framework that structures the
foreign awards if the governed contracts were not universe of investor-state dispute settlement (ISDS)
governed by laws relevant to when arbitration was in East Africa (O’Kane, 2010). First, BITs
continued (Antai et al, 2024). The second incident importantly protect investments from expropriation
occurred in 1994, once again in Kenya, this time a and nationalization, guarantee full protection and
UNCITRAL award was denied registration in security, and standardize fair and equitable
Kenya. The High Court’s reasoning in the latter treatment (FET) clauses at minimum standard
incident was that the Act demands that the Kenya thresholds. Second, BITs provide a ‘primacy’
seat of arbitration must be designated in the provision by which obligations between contracting
Arbitration agreement, a requirement which was not parties of treaties prevail on conflicting domestic
met by the contract award (Kisubi et al, 2024). On law. The ‘primacy’ provision ensures clarity
appeal by the award creditor, Garu submitted that regarding which dispute resolution mechanism may
the enforcement Act was enacted to implement the be used (Ogu et al, 2024).
NY convention and as such should be interpreted
consistently with the convention. The primary negotiation processes in the early
stages of investing are often concerned with the
3. Legal Framework for Investor-State conclusion of bilateral investment treaties (BITs)
Dispute Settlement in East Africa and the provision of private guarantees (formal
agreements between the government of the capital
Foreign direct investment (FDI) in East Africa has exporting country and the government of the
been growing over the last decade, largely due to the recipient host country) (Aidonojie et al., 2025). BITs
region’s liberalisation policy of markets to attract establish guidelines for investment activity, as well
investment, in addition to its abundant natural as protection and recourse mechanisms for investors
resources (Anani et al., 2023; Zaman et al., 2024). in case of disputes over their investments. Foreign
However, this surge in FDI has brought a investors migrating from countries with established
corresponding increase in the likelihood of investor– investment policies often agree with the host
state disputes, which would often require the government to provide a guarantee on their
attention of investor–state dispute settlement (ISDS) investment (Anifowose et al, 2024).
through international arbitration (Aidonojie et al, Since the 1960s, more than 2,800 BITs have been
2024). Domestic law and international treaties, signed globally. States sign BITs intending to
including bilateral investment treaties (BITs), have promote and protect foreign investments. BITs
constituted the foundation of the legal structure usually contain provisions to ensure fair and
supporting arbitration as the mechanism for settling equitable treatment (FET), the free transfer of funds,
disputes between investors and host states. This and an investor–state dispute settlement clause.
legal framework, which is instrumental in These provisions benefit both parties by stipulating
determining the landscape of arbitration, is the the rights and obligations of foreign investors and
subject of analysis in this section. The legal host states, thus reducing the risks associated with
framework for ISDS and subsequent international investing in foreign states (Qtaishat, 2013). As a

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signatory to the International Convention on the interesting case for reflecting on the performance of
Settlement of Investment Disputes between States the Tanzanian bit-generated system of ICSID
and Nationals of Other States (ICSID Convention), arbitration. However, exploring the BIT-generated
PIC provides a consent in most of its BITs to submit system of ICSID arbitration is also valuable in
disputes to the ICSID arbitration centre. Thus, PIC learning from the Tanzanian experience, particularly
and its counterpart state agree to have arbitration as as the country initiates the reengagement process
a procedure to solve a possible investment dispute. (Antai, 2024).
In comparison with ad hoc arbitration, this clause The purpose of BITs is to provide potential host
provides a more regulatory framework of dispute States with investors from the contracting parties
settlement (Ekpenisi et al, 2024). In the case of an with substantial and clear legal assurances and to
ICSID arbitration, an investor’s decision to consent facilitate and protect long-term capital exporting
to arbitration already provides the counterparty state from the State adhering to the BIT. By doing so,
with a better defined set of ISDS rules. This is the much of the risks of capital exporting are transferred
procedure known as ICSID arbitration. In the event from the investor to the sovereign of the country
of a dispute between a foreign investor and the host hosting the investment, creating a stable
state, this dispute resolution falls under Article 9 of macroeconomic and regulatory environment with
the BIT, which grants the investor the option of: (1) strong international obligations and confidence for
settling the dispute amicably, (2) seeking arbitration potential foreign investors (Chen, 2017). The
according to the ICSID Convention or the ad hoc strength of the protections and the legal environment
arbitration rules stated in the UNCITRAL of BITs is designed to ensure a level of binding
Arbitration Rules of 1976, or under (3) any other commitment that signals favourable conditions to
arbitration forum agreed upon by the parties of the effectively facilitate inflows of foreign direct
dispute. Bilateral Investment Treaties (BITs) investment and mitigate or limit uncertainties. This
provide certainty and predictability of standards of is particularly pressing given the strong competition
treatment which help foreign investors. On the other between developing countries for capital export and
side, the governments may want to provide the concentrated capital pool of advanced industrial
protection to their investors abroad through the countries (Aidonojie et al, 2024). As such, BITs are
establishment of BITs. In practice, the main use of jointly and seriously signed under conditions of
BITs revolves around arbitration, and arbitration has profound asymmetric information and structural
been the single most successful technique in power imbalance between the two counterparties. In
bilateral investment treaties (Akpanke et al, 2022). principle, BITs are concluded in stable and long-
East Africa is rich in investments, and many lasting commitments that govern for decades, tying
countries in the region have either signed investment the hands of all later Governments of the contracting
agreements or treaties aimed at protecting parties (Onyema, 2020). Successful ISDS
investments, and resolving possible disputes with mechanisms are consistently successful at pro-
the investors of the other party to the agreement. actively enforcing investor rights through expansive
There has been a significant increase during the last interpretations of treaty provisions, while
decade in the practice of hosting key investments contracting parties have few instruments at their
(Aidonojie, 2024). Though signing a BIT is not disposal, and even if they have, use them in a rather
compulsory, having one may provide protection. On rare and exceptional manner (Cross and
a global scale, with the increasing number of Schliemann-Radbruch, 2020).
arbitrations, policymakers feel that the system of
Bilateral Investment Treaties and arbitration needs 3.2 Regional and International Conventions
re-evaluation.
States adopt several conventions regionally and
African countries are amongst the highest in the internationally to facilitate the settlement of
world involved in arbitration, either as respondent investment disputes between states and investors as
states or because their companies are respondents. consent. The adoption of the International Centre for
Historically, African countries have been sued by Settlement of Investment Disputes (ICSID)
investors more than they have gone on the offensive. Convention by states in 1965, and by other states as
Ultimately, the absence of a consistent and uniform part of their ratification of independence, provided a
legal regime covering FDI has had an adverse effect common framework for investment arbitration that
on East African countries in their search for standardized investment arbitration and gave the ad-
sustainable FDI-led development in infrastructure hoc arbitration that states were already part of
development, service delivery and value addition to (Majekodunmi et al, 2024). Onyema (2020) has
raw materials (Aidonojie et al, 2024). However, the argued that states’ adoption of this custom-generated
recent initiatives of AMANI Forum and the EPA system was without consultation with proper
negotiations between each East African state and parliamentary debates, proper translation of the
Europe may serve as opportunities to address the convention into local languages, and then sometimes
existing deficiencies of the current BITs. AMP is an fast and blind signing in the disillusionment that

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followed independence expectations. The first wave for dispute resolution can be exploited by litigants,
of ISDS claims against East African Community resulting in attempts to have the case heard in forums
(EAC) states, and the ongoing efforts to come up they perceive to be more favourable (Mbithi, 2014).
with a regional investment treaty, provide a globally The different interpretations of the legal framework
relevant case study to assess how regional and in the diverse legal environments across the region
international investment protection regimes are create a situation where what was intended to be a
interconnected and to which extent harmonizing harmony or partnership between sovereign states
mechanisms would prove beneficial (Izevbuwa et al, and foreign investors can be manipulated to meet the
2024). International investment disputes can be end of the more legally astute party (Lim et al,
brought before international arbitration tribunals 2021).
provided there is consent to arbitration from both The second issue to be explored is the enforcement
parties, the state, and the investor. For historical and of arbitral awards as respects responses of State
cross-cultural reasons, former colonies have parties thereto. It is of particular concern that the
disproportionately been affected by, and they are blatant refusal to comply with such awards by
now also the most active in, investment arbitration regional governments often goes unpunished by
(Kidane, 2014). Calls for reforming international local courts, or worse, are seen to be actively
investment rules and dispute resolution mechanisms defended by, or indeed a product of, those local
take shape in State practice through non- courts. This is but one example of a wider issue
participation or disengagement in existing investor- wherein awards made against countries in the region
to-state dispute settlement (ISDS) mechanisms. The are often treated with enmity by States, in most cases
ongoing discussions on reforming international resulting in lengthy and seemingly fruitless attempts
investment agreements (IIAs) in different fora by the successful party to enforce the award. Such
confirm the importance of pursuing analysis in order behaviour leads to a perception that certain
to promote informed debate and evidence-based governments are beyond the reach of international
reform of arbitral rules and procedures. In line with law or at least consider themselves so (Antai et al,
this, some developing countries have had a 2024).
rethinking of their involvement in ISDS and
engaging the international community to seek a 4.1 Jurisdictional Issues
policymaking space not currently available
(Laborde, 2010). With the continuous changes in the This subsection exclusively focuses on jurisdictional
evolving system of international investment rules issues that arise in the setting of international
and adjudication, this question also has far-reaching arbitration within the economic community of East
implications concerning arbitration institutions and Africa (EAC). Determining the appropriate
arbitration rules and procedures (Antai et al, 2024). jurisdictional framework in respect of international
arbitration in East Africa poses a complex issue, as
4. Challenges and Opportunities for the potential jurisdictions are a myriad including the
International Arbitration in East Africa domestic court in which the dispute arises, the
domestic court of the seat, the common market
In assessing the extent to which international Protocol and the treaty. In view of various domestic
arbitration is a viable dispute resolution mechanism systems and various treaty regimes including
for investor-state disputes in East Africa, this study bilateral investment treaties (BITs), multilateral
has endeavoured to address issues and trends investment treaties like the International Centre for
applicable to the region as a whole. As such, a need Settlement of Investment Disputes (ICSID), the
was identified for a more in-depth analysis of the common market Protocol and the 1999 treaty, the
challenges and opportunities associated with area is fraught with a multiplicity of laws, which can
engaging in international arbitration in East African make determining a jurisdictional framework
states, both generally and in the context of investor- difficult (Antai et al, 2024). States often have
state disputes. The findings of this background differing interpretations of arbitration provisions in
research are presented in this section. Analysis is investment agreements, and there have also been
divided into three subsections, addressing legal, cases where the contracting parties to a BIT do not
institutional, and economic barriers to the effective share a common understanding of the terms of the
implementation of arbitration practices. treaty. The various laws on jurisdiction, which can
be in conflict with each other, may also create
confusion in the mind of a foreign investor seeking
To compound matters, the few provisions that do to settle a dispute with a State partner via arbitration.
exist in the statutes applicable to certain East African The use of ambiguous clauses, coupled with the
states are often subject to judicial interpretation, absence of clarification of the meaning of those
leading to arduous, lengthy, and expensive legal terms by the countries entering into the investment
battles over jurisdictional ambiguity. The agreement, can deter potential foreign investors
uncertainty surrounding the proper legal framework from resorting to arbitration as a remedy (Kisubi,

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2024). Lastly, the engagement of local litigation in Foreign investors have employed international
combination with recourse to international arbitration where it has been adopted as the method
arbitration opposing the same parties, may of resolving disputes both in the host State
discourage foreign investors from seeking legislation and in the international investment
arbitration in the context of their global or regional agreements. Countries shall recognize arbitration
dispute (Qtaishat, 2013). The complex agreements and enforce arbitral awards in
determination of the appropriate court in which to accordance with the relevant conventions. However,
litigate these disputes, and the inefficiencies of EAC lack of capacity to enforce foreign arbitral awards
domestic courts present additional challenges for was one of the reasons for the establishment of the
foreign investors seeking redress for ISDS. The International Centre for Settlement of Investment
continuous dispute resolutions disputes in domestic Disputes (Dugan et al, 2019). Capacity problem is
legal systems in the region have negative effects of pronounced in the East African Contracting States as
the patience and confidentiality requirements of the none of the Contracting States has acceded to the
investor, as well as credibility effects on the relevant convention. Localization of the process at
legitimacy of the EAC’s ability to provide effective the domestic level is also inadequate to meet the
dispute resolutions (Aidonojie et al, 2024). These requirements of international arbitration (Okpong &
issues provide consideration for the broader question Antai, 2024). Thus, the East African Contracting
of the investment regulatory framework of the EAC States lack the support network for the enforcement
and how the known weaknesses can be remedied to of arbitral awards.
enhance investor confidence and provide fruitful
grounds for effective arbitrations in international 5. Comparative Analysis of International
forums. There have been diverse opinions about the Arbitration in East Africa and Other
extent to which international arbitration has been Regions
institutionalised in practice through the EAC
Investment Promotion and Protection Protocol Similarly, other scholarly works have critically
(IPPP). It is essential for the EAC jurisdictional examined international commercial arbitration
authorities, in this case the Council of Ministers the practices in other East African States, Nairobi
EACJ, to give legal certainty to foreign investors International Arbitration Centre (NIAC)/Kenya, and
about which body can review and recognize an elsewhere in the world are considered before
arbitral award under its jurisdiction, homologate it offering an analysis and recommendations for future
and be the enforcement judge for ICSID awards practice. Thus, the research in question aims at
(Onyema, 2020). identifying possible application gaps in the legal
regimes of East African State Parties to the
4.2 Enforcement of Awards Convention and the expectations of international law
as reflected in the Convention (Mbithi, 2014).
In the system of investor-state dispute settlement
(ISDS), the credibility of arbitration is mainly The results of the research show that the legal regime
derived from the enforceability of awards as the of the Convention does not always allow effective
hallmark of arbitration as an effective mode of enforcement of arbitration agreements and arbitral
resolving disputes (Chinweze et al 2024). awards. Variety of factors influencing the
Realization of the promised advantages of the effectiveness of the legal regime are identified, some
arbitration process revolves around enforcement of being shared by all States Parties and therefore
the arbitral awards. East African Contracting States amenable to multilateral responses, while others
are parties to international and regional differ by State Party and might require tailored
arrangements for the settlement of disputes by bilateral solutions (Kidane, 2017). Moreover, since
arbitration. (Wahab, 2019). Enforcement of the Convention incorporates international law
domestic and foreign awards in the East African standards of investment protection, the deficiencies
Contracting States are provided for both in domestic in the national legal regimes might frustrate the role
laws and several other conventions, treaties, of investment protection as a driver for consent to
protocols and model bilateral investment treaties. arbitration among East Africa State Parties (Antai et
However, in spite of the growth in investment in al, 2024).
East Africa, investors face intricate issues in
enforcing arbitral awards (Dozler and Stevens, Overall, the study is one of the first to assess the
1995). These include the lack of consistent arbitral legal effectiveness of the ICSID Convention in an
practice of successful enforceable awards, original manner. In view to improving the situation
inconsistency in respect to enforcement of awards in the future, it is suggested that State Parties should
and delays, as exemplified by the case law of the apply the Vienna Convention on the Law of Treaties
Courts of East African Contracting States (Antai et in good faith, and reform their national legal regimes
al, 2024). by collectively establishing a regional court with
jurisdiction over the recognition and enforcement of

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ICSID awards (Sabahi, 2011). In October 2015, the seem to have been largely bypassed by the current
investment policies and treaties of SOMC States will wave of cases. By selecting a variety of dispute cases
be examined in a historic and comprehensive review spread in terms of the states involved, the sectors
by Heads of State and Government, hosted by the affected, and the outcomes, it is hoped that the
African Union Commission, aimed at maximizing following discussion collectively serves to showcase
the benefits and minimizing the costs of investment the range of legal complexities that are involved.
for all SOMC countries and respect for a fair
investment climate in the region. 7. Role of Arbitral Institutions in East
Africa
6. Case Studies of Investor-State Disputes
in East Africa This section of the study analyzes the vital role that
arbitral institutions play in the facilitation of
Several case studies are presented below for the international arbitration in East Africa. There are
purpose of illustrating the actual application of numerous arbitral institutions in East Africa. These
matters in practice. This is particularly so in light of institutions work to provide the support needed for
the dearth of reported cases on the international the conduct of international commercial arbitrations.
arbitration of investment disputes and the apparent The forms of support provided by arbitral
lack of published awards. The purpose of the case institutions in East Africa include the provision of
studies is to illustrate with real-world examples the administrative assistance and management services
overarching sets of issues that arise in the analysis for the discharge of arbitral functions, training of
of the applicability of international arbitration and attorneys, judges, practitioners, and arbitrators, the
investor-state dispute settlement (ISDS) in East establishment of rules governing arbitration,
Africa. The case studies are also intended to provide sponsoring of the establishment of arbitration
pointers to the varied legal frameworks, how these centers and sub-centers, and the establishment of
legal frameworks differ in their arbitration rules to be followed for the speedy and fair
provisions, and how the framework used by East determination of arbitral disputes (Wakili et al,
African states compares in breadth, depth, and 2024). This section will analyze and evaluate
specificity with other investment protection regimes essential functions of arbitral institutions.
in Africa. They each examine a notable case that has
arguably influenced the understanding and practice An important part of the evaluation of arbitral
of arbitration, both domestically and regionally institutions in East Africa includes the examination
(Asouzu, 2001). of the institutional support that ensures the effective
conduct of international commercial arbitrations
Strategically, the selection of the case studies is (Agboti et al 2025). The terms of institutional
driven primarily by a dearth of known cases. Beyond support that this study evaluated are the provision of
material in the public domain, remarkably little a secretariat, the provision of the arbitrators and the
appears to be known about the many unreported necessary administration to deal with the arbitral
disputes that appear to be ongoing or to have been dispute, the provision of the rules to govern the
resolved out of the public purview. Looking first at conduct of the arbitration, the provision of the
reported cases of concluded disputes, only a very training to produce qualified arbitrators and
small number of African-related cases appear to arbitrators’ assistants to efficiently conduct the
have been rendered. These early cases arbitration, the establishment of local centers and
predominantly date back to the late 1990s and early subcenters to provide the above forms of support,
2000s. Although a slow start is perhaps to be and the establishment of various other rules
expected, the apparent dearth of since decided cases, governing the arbitration process in the country.
some ten years on, is notable, at least in terms of Effective international commercial arbitrations in
what is publicly available (Onyema, 2020). Such East Africa could not be conducted without the
observation is particularly relevant when contrasted support and assistance of arbitral institutions. The
with the considerable and increasing number of stronger and more effective these institutions, the
known disputes now involving urban infrastructure better the environment for the conduct of arbitration
and service contracts, particularly in the water (Mbithi, 2014).
sector.
8. Recommendations for Enhancing the
In contrast with the larger body of published Use of International Arbitration in East
academic research on investor-state dispute Africa
settlement, too little information appears to be
available on investment disputes in Africa, or in the In view of the challenges and prospects discussed in
English-speaking world more generally (Qtaishat, this study, the author proposes the following policy
2013). Such knowledge lacunas are in many ways recommendations to enhance the use of international
exacerbated in the case of East Africa, whose states arbitration in East Africa: (1) Providing a

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Hospitality Legal Environment for International revision of ITR and the formulation of effective
Arbitration: Governments should enact arbitration protective measures (Umo et al, 2024). Separate
laws in conformity with the Model Law. Moreover, agreements could be negotiated to enhance
they should adopt robust arbitration laws capable of investment cooperation, for the settlement of
accommodating the current practice in international disputes, and there should be consultation with
arbitration, supportive of arbitration agreements, stakeholders from all sectors and states of the
and conducive to arbitration process. Courts should community, in particular developing, dialogue, and
provide a more arbitration-friendly attitude for the regulatory framework (Aidonojie et al, 2024).
enforcement of arbitration agreements and awards
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