Senegal

From the early days of his mandate, President Donald Trump decided, by decree, to suspend foreign development aid for the duration of a budget review ("Stop Work Order").On January 24, 2025, the State Department ordered all American government agencies, including USAID, to stop working on international aid programs and to freeze expenditures for a review period of eighty-five (85) days.   The following summarizes key Senegalese labor law provisions that may offer solutions to addressing employee status concerns related to the stop order.  For information, please check our website and LinkedIn. Solutions for Workers with Employee Status Considering placing staff on technical unemployment (1), terminating the trial period, or at the limit, negotiating departures (2) seem more interesting and less risky. Technical Unemployment When a company or structure employing people is in a conjunctural challenge, Article L 65 of the Labor Code permits the company to place all or part of the personnel (under CDD or CDI) on technical unemployment, subject to compliance with the rules organizing its procedure. Therefore, for the agencies impacted by the government’s decision, technical unemployment could well be an option under the provisions of the Senegalese Labor Code, particularly the aforementioned article, and the duration provided for the suspension of international aid (85 days), for the agencies impacted by the government's decision. Termination during the probation period Article 23 of the National Interprofessional Collective Agreement provides each party the right to terminate the contract without compensation or notice. It is important to understand that the probation period is particularly regulated under Senegalese labor law, so it is necessary to ensure full compliance with the legal provisions before considering it. Mutual separation  According to Article L 64 of the Labor Code, the employer and the worker(s) can, through an amicable termination protocol, negotiate freely and fairly. Solution for Service Provider  Service providers do not have employee status. They are governed by the provisions of the Civil and Commercial Obligations Code (COCC). The concerned American agencies will have the possibility to negotiate an amendment with them to suspend their contract during the period provided under the stop order, or to explore the possibility of terminating their contract due to the Stop Work Order considered as a force majeure event. Finally, in the face of the American government's decision to suspend international aid, development agencies in Senegal are confronted with a situational challenge but have interesting temporary solutions, notably technical unemployment. If the suspension becomes definitive at the end of this 85-day period, they can consider economic layoffs or negotiated departures. Yankhoba NDIAYE, Lawyer, Partner Employment & Immigration, and Ousmane Aliou LY, PhD, Associate Employment & Immigration are part of our Employment and Immigration Practice. We have accompanied several companies and entities in the implementation of these solutions, ensuring compliance with legal procedures and minimizing risks for the employer. Contact us to benefit from our expertise and personalized assistance.

The procedure for expropriation in the public interest is that by which the State may, in the public interest, and subject to fair and prior compensation, compel any person expropriated to relinquish ownership of a building or a right in real property to the State[1]. It applies both to land subject to the rules of private ownership and to the dependencies of the National Estate. This mechanism, which is monitored by the authorized State expropriating service, applies to both State land and private real estate[2]. In the absence of an amicable agreement at the end of the administrative phase, the competent court is responsible for issuing the expropriation order. Similarly, in the event of inertia on the part of the expropriator, the expropriated party may obtain a waiver order. Thus, it is the successful completion of the administrative phase that makes it possible to avoid, in particular, the judicial phase and to reduce the length of the procedure. Within the framework of the ordinary law procedure, this phase is organised around 2 stages, consisting of the conciliation report (II) preceded by the Decree declaring that it is in the public interest (I). I - ON THE DECREE DECLARING THE PUBLIC INTEREST It can be presented through its advertising (B) and its characters (A). A - ON ITS CHARACTERS The declaration of public utility is the trigger for the expropriation procedure[3]. Contrary to the solution provided for by French law[4], the public utility is declared, obligatorily, by a Presidential Decree establishing and declaring the public utility of the planned operation as well as designating the buildings affected by the procedure. This Act, which designates the area concerned, is taken on the basis of a joint report by the Minister responsible for finance and the Minister responsible for the project to be carried out. In practice, the public interest, which is not defined, may relate, in particular, to buildings required for projects of general interest relating, for example, to the execution of public works[5], the installation of State services, public health, internal security, territorial defence, forest conservation, the exploitation of mineral substances, the execution of master plans for town planning, housing estates, development and development. It shall be proved under the supervision of the competent court. It shall be assessed on a case-by-case basis in the absence of a normative framework. To this end, French case law applies the "balance sheet theory" using the "cost-benefit" method. It considers that a transaction cannot be declared to be in the public interest, in particular, when the aim sought is mainly financial, the main purpose is to promote particular interests or expropriation is not necessary[6]. This declaration of public utility must be preceded by a preliminary investigation. This must allow, in particular, the determination of the plots of land to be expropriated and the estimation of the compensation to be paid to the occupants. The opening of this inquiry, known as "de commodo et incommodo", is prescribed by the Directorate of Registration, Estates and Stamps.  The file of the investigation is kept by the Receiver of Estates territorially competent. He is appointed the "Commissaire-Enquêteur". It is announced to the public by all usual means of publicity. During its duration, which is fixed at a minimum of 8 days and a maximum of one month[7], a file including the indicative project of the works or operations to be declared as being of public utility and a plan of the site or the necessary zone is deposited in the offices of the Regional Inspectorate of Domains. It may be consulted there by any interested person. Comments may be made by the latter. An opinion is issued by the Commission for the Control of State Operations on the amount of compensation to be proposed and the appropriateness of resorting to the emergency procedure. It is applicable to all expropriation procedures for reasons of public utility, unlike the procedure for environmental impacts. It ends with the investigation report drawn up by the Investigating Commissioner, which reports, in particular, on the observations recorded or their absence that may lead to the registration and withdrawal of the National Domain lands concerned[8]. In principle, at the end of the investigation, the above-mentioned Decree declaring the project to be in the public interest is issued on the basis of a joint report by the Minister of Finance and the Minister responsible for the project[9]. It shall set the period during which the expropriation must be carried out. This period may not exceed three years. It may be extended by decree for a period not exceeding two years. Where it also constitutes an Act of transferability[10], the decree declaring the public interest shall apply, in particular, to the portion of the building included in the work or indispensable for its execution. In such case, it shall be entered in the registers of the Land Registry. No modification likely to increase the value of the property concerned may be made as from this entry. In other words, such property may not be alienated or encumbered with rights, on pain of nullity of the agreement. Finally, this Administrative Act, like the decree of abandonment referred to below and other arbitrary administrative acts allocating land[11], may be challenged on grounds of misuse of power within two months from its publication or notification. In the event of rejection of a complaint, the time limit for appeal shall run from the day of notification of the explicit decision to reject the complaint and, at the latest, from the expiry of the period of 2 months following the silence kept for more than 2 months. Before contesting that decision, the persons concerned may, within the time-limit for lodging an appeal on grounds of misuse of powers, submit a hierarchical or ex gratia administrative appeal seeking to have it set aside. The time limit for appeal and the appeal shall have suspensive effect[12]. Failure to appeal or rejection of an appeal shall make it possible to open the conciliation stage. B - ON THE PUBLICITY OF THE ACT OF TRANSFERABILITY The Deed of Transferability[13] or the Decree of Declaration of Public Utility must be entered in the registers of the Land Registry. No modification likely to increase the value of the property concerned may be made as from this entry. In other words, such property may not be alienated or encumbered with rights, under penalty of nullity of the agreement. After its registration, the expropriator shall notify the owners of the property and holders of real rights concerned or their representatives. Within a period of 15 days from the said notification, the latter shall be bound to make known the holders of personal or real rights of any kind over their real property. Failing this, they alone shall remain liable to such holders. The expropriator shall request the Land Registry to deliver to the Property Registry a statement of the registrations, charges or real rights encumbering the real property designated in this Act. The expropriator shall draw up an inventory of fixtures with the owners and shall gather all documents and information likely to enlighten the Conciliation Commission. At the expiry of the above-mentioned period of 15 days and before one year at the latest, the expropriator shall invite the parties concerned to appear in person or by proxy before the Conciliation Commission responsible for drawing up the minutes of the amicable settlement[14]. II - ON CONCILIATION It refers to the minutes (B) drawn up by the Conciliation Commission (A). A - ON COMMISSION Conciliation is the second stage of the administrative phase and is carried out by a Commission composed as follows: -President ............................the Governor of the Region or his Representative; Members : - a Representative of the Public Works Department or the Agriculture Department or both if applicable ; - a representative of the Domain Service; - a Representative of the Municipal Council when the property is located within the territory of a Commune; - a Representative of the Regional Council when the property is located outside a Commune's territory[15]. The Department of Domains is responsible for convening this Commission. It provides its secretariat, draws up its minutes and indicates the amount of expropriation compensation offered to the owner or right holder concerned[16]. In the case of a procedure for the registration in the name of the State of lands in the National Domain, this Commission is composed of : -President .........................................................the Prefect or his Representative; Members: - a Representative of the Local Services of the Ministry of Public Works ; - a Representative of the Local Services of the Ministry of Rural Economy; - a Representative of the Domain Service; - 2 Representatives of the communities, associations or organizations concerned. B - ON THE MINUTES OF CONCILIATION The Conciliation Commission shall ascertain or seek to achieve the agreement of the parties on the amount of compensation. It shall be calculated on the basis of the consistency of the property on the date of the inventory report[17]. It shall be fixed in accordance with the practice of compensation. It shall be estimated at the earned value. The earned value shall take account of the intrinsic value of the property in question and the added value incorporated therein. The compensable gain, which corresponds to the general increase in the cost of goods and services resulting from monetary depreciation[18]. This estimate is the source of most of the disagreements between the expropriator and the expropriated persons, especially with regard to the expropriation of agricultural land in the National Domain used during the winter period[19]. At the end, minutes recording the agreement reached, in particular on the amount of compensation, shall be drawn up and signed by the President of the Commission, each of its members and the parties. In addition, the minutes shall indicate, in particular, the comments of the interested parties, the names of the beneficiaries, the amount of compensation proposed and the impact of the implementation of the project on the production possibilities of the expropriated persons. The minutes, which are treated as a deed of amicable transfer, constitute an authentic instrument and are authentic until forged. Like the expropriation order, it extinguishes on its date all real or personal rights relating to the expropriated property under the resolutory condition of payment of the final compensation. In this case, the expropriation indemnity is subrogated to the building. These immovables, governed by land ownership law, are subject to transfer in the name of the State or to an amending entry in the Land Register. With regard to land in the National Domain, on the basis of these minutes, a Decree, issued on the joint proposal of the Minister of Finance and the Minister in charge of Development, declares the area concerned to be withdrawn from use. It fixes the final amount of compensation, orders its payment or deposit and authorizes the taking possession of the said zone for the implementation of the public utility project. Such land is first registered in the name of the State following its requisition. All the rights that may exist in the disused land are extinguished by the said Decree as of its date[20]. [1] Article 4 of Law No. 76-67 as amended refers to the term "expropriator": the National Expropriation Agency (ANER) created by Decree No. 2006-12 of 10 January 2006 and APIX, created in 2000, as the Executing Agency for certain major infrastructure projects. [2] Articles 15 of the Constitution, 17 of the Declaration of the Rights of Man and the Citizen, 17 of the Declaration of Human Rights, 545 of the Civil Code and 1 of Law 76-67. [3] Articles 15 of the Constitution, 17 of the Declaration of the Rights of Man and the Citizen, 17 of the Declaration of Human Rights, 545 of the Civil Code and 1 of Law 76-67. [4] Articles R 121-1 and R 121-2 of the French Expropriation Code: public utility may be declared by Prefectoral Order, Ministerial Order or Decree in Council of State. [5] Decree no. 2003/944 of 26 November 2003 declaring the Project to build overpasses at the Malick SY X motorway crossroads to be in the public interest...designating and declaring the registered buildings necessary for its implementation to be transferable and ordering the withdrawal of the real rights registered on the land titles belonging to the State in its right-of-way. Decree no. 2013/853 of 13 June 2013 declaring the installation of a power substation for SENELEC to be in the public interest. Decree No 2017/326 of 21 February 2017 declaring the various infrastructures built on Land Title No 183/DP to be of public utility. Decree No. 2014-968 of 19 August 2014 prescribing the registration in the name of the State of a piece of land dependent on the National Domain located in Diamniadio forming the Diamniadio Urban Development Pole with a surface area of approximately 1,644 ha and declaring it abandoned. [6] Council of State, 28 May 1971, Ville Nouvelle Est, 10 October 1961, Consorts White, 22 October 1958, Consorts Moreau, 20 November 1974 Husband Thony and Husband Hartman. [7] Article L 121-2 of the ECUP Code: Public utility must be declared within 12 months of the closure of the investigation (+6 months in the case of a decree by the Conseil d'Etat). After one or other of these deadlines, a new investigation must be carried out . [8] Commodo et incommodo investigation opened following Decision No 000693/MEF/DGID/DEDT of the Director of Registration of 26 February 2010 mentioned in the Presentation Report of Presidential Decree No 2010/1070 of 13 August 2010 prescribing the registration in the name of the State of a piece of land of the National Domain located in Diamniadio, with a surface area of 80 hectares with a view to its allocation by way of lease and pronouncing its abandonment. [9] Article 17 of the Declaration of the Rights of Man and of the Citizen of 1789, Article 545 of the Civil Code, pronounces itself in almost identical terms: "no one may be forced to transfer his or her property except for the public interest and in return for fair and prior compensation". [10]  Article L132-1 of the ECUP Code. [11] Supreme Court, Judgment No 09 of 28 March 2019 annulling Decision No 16/C-DYA/2017 of 4 November 2017 and Judgment No 08 of 28 March 2019 annulling Decision No 007/COM/SAND of 1 October 2014. [12] Articles 74 et seq. of Organic Law No. 2017-09 of 17 January 2017 on the Supreme Court [13] Article L132-1 of the ECUP Code. [14] Articles 9 of Law No. 76-67 and 3 of Decree No. 77-563 on the composition of the Conciliation Commission . [15] Act III of Decentralization has, since 2013, eliminated the Regional Councils and instituted the Departmental Councils. [16] Article 3 of Decree No. 77-563 of 3 July 1977 implementing Act No. 77-67. [17] Article 31 of Decree No. 64-573, Commission responsible for estimating the compensation to be paid to the employees concerned in the event of the withdrawal of land from the national domain. [18] Article 29 of Decree No. 64-573 of 30 July 1964, setting the conditions for the application of Law No. 64-46 of 17 June 1964, Decree No. 2010-439 of 6 April 2010 setting the price scale for bare land and built-up land, applicable to rent. [19] In the implementation of the expropriation procedure on the basis of Decree 2010-1074 of the populations denounce the non-conformity between the designated zone and the expropriated agricultural lands as well as the weakness of the proposed compensations. of the village of Dougar for the benefit of the Project "Une Famille un toit" and the Company Peacock Investments. [20] Article 34 of Law No. 2011-07 of March 30, 2011 on the Land Ownership Regime, Decree No. 2010-1074 on the requisition of registration in the name of the State of a piece of land in the National Domain, referred to above. Decree No. 2014-968 of August 19, 2014 prescribing the registration in the name of the State of a piece of land belonging to the National Domain located in Diamniadio in the Department of Rufisque forming the Diamniadio Urban Development Pole with a surface area of approximately 1,644 ha and declaring it abandoned. Decree no. 2015-2014 of December 9, 2015 authorizing the definitive transfer to the General Delegation of the land belonging to its Private Domain in the Diamniadio Urban Development Pole's tax base and the withdrawal of the lease rights granted by the State for reasons of public utility.

AFRICA CONNECTED 4 November 2020 By: Mouhamed Kebe, Managing Partner, DLA Piper Africa, Senegal (GENI & KEBE) Africa is on the cusp of what could be a break in a decades-long cycle of poverty and economic shortcomings. Whether this cycle will be broken depends on the ability of African nations to put in place policies that attract and protect foreign and intra-African investment. These policies must demonstrate to investors that the rule of law will be upheld; that equitable, local dispute settlement is possible; and that potential gains will be greater than the risks involved. The enactment of the African Continental Free Trade Agreement (AfCFTA) was a huge step in the right direction. This agreement lays a solid foundation for increased intra-African trade in both goods and services and looks to build on the collective strengths of African nations and African citizens. As AfCFTA comes into full force and effect, one of the most pressing issues is for African nations to provide clear guidance as to which dispute settlement mechanisms are to be used under the agreement. While Africa finds itself at the forefront of a bright economic future, state parties to the AfCFTA must provide more comprehensive guidance as to how the agreement will be implemented for it to be truly effective. The dispute settlement mechanism detailed for the agreement must strike the right balance between state and investor interests, ensuring that Africa is an attractive place for investment, including intra-African investment, while at the same time protecting the ability of African nations to promote sustainable development, using regulations that defend the public interest. As will be demonstrated in this article, establishing a permanent dispute settlement tribunal is advisable to build confidence in processes. Before presenting this argument in detail, this article will provide a general overview of the current landscape of dispute settlement on the continent, including governing laws and tribunals. It will then provide a brief summary of the envisioned dispute settlement under AfCFTA to highlight where there is room for improvement DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com. This may qualify as Current landscape of dispute settlement in Africa Before considering what could and should exist, it is important to first understand what does exist on the continent. The following is a brief overview of the existing laws, tribunals and dispute settlement mechanisms used in Africa. Laws In Africa, foreign investments are regulated by host state laws, Regional Economic Communities (RECs), 1 multinational and bilateral treaties and investment agreements. prove challenging and lead to confusion or frustration for foreign investors. The domestic investment laws in many countries are relatively weak and were traditionally molded to the needs of foreign investors. Moving away from Navigating the pool of differing regulations can this, some African countries have recently enacted domestic investment laws aimed at better protecting domestic interests. In 2017, for example, Egypt passed a new investment law focusing primarily on improving the quality 2 rather than the quantity of foreign investment. Egypt more attractive to foreign investors. South Africa’s recent investment law reform arguably went further than all others in protecting domestic interests. In 2015, the country ended its Bilateral Investment Treaties (BITs) with Austria, Belgium, Luxembourg, Denmark, France, Germany, the Netherlands, Spain, Switzerland and the UK and 3 issued the Protection of Investment Act of 2015. This Act allows the country to balance its own interests with 4 those of investors, allowing it to maintain its sovereign rights. It would come as no surprise if other countries followed suit and began enacting their own, new domestic investment laws. Regardless of the strength of domestic laws, BITs remain the leading governing law for investment-related matters. Investment Agreement (RIAs). RIAs govern investments in each of the member parties to each respective REC In general, this new law helped streamline processes, making 5 African nations in entering into BITs appears, in most cases, to indicate to the developed country counterparty that 6 As of 2016, African nations had 853 BITs (157 intra-African and 696 with the rest of the world). The intent of the country is open to foreign investment and intends to protect investment in their country. developing country/developed country BITs can be seen as more one directional than in those between two developed countries, given that there is an implied – albeit not typically expressed – understanding that the main purpose of the agreement is to increase investment into a developing nation, rather than to and from both nations. The implications of this perception have arguably hindered greater economic growth in Africa by restricting African nations’ ability to issue domestic laws that run contrary to BITs. African governments have expressed frustration about the limitations BITs impose on their sovereignty. African states that enter into BITs with developed nations limit their ability to freely regulate areas that may affect investment, and more often than not submit themselves 7 to the will of international arbitral bodies (as discussed below). Africa is also home to several Regional Economic Communities (RECs), each of which has its own Regional 8 and not only affect investments, but also often have an effect on finance and taxation matters at both national 9 10 and regional levels. RIAs in Africa generally cover the same issues addressed in BITs and, at the same time, 11 harmonize the national investment policies of their Member States. only binding by and between nationals from the countries that are party to them. certain obligations derived from their participation in RECs that may limit or otherwise affect their interaction with a foreign investor of any nationality entering their jurisdiction. Finally, most African nations have signed up to some of the world’s largest, most notable multilateral agreements involving international investment. These agreements include, among others, the World Trade Organization (WTO)13 Agreement on Trade-Related Measures (TRIMs); the WTO General Agreement on Trade in Services (GATS); the Convention Establishing the Multilateral Investment Guarantee Agency (MIGA Convention);14 the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States; and the New 15 York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. limited impact on investment, these international agreements must also be considered when understanding the complex web of laws on the continent. Tribunals When there is no specific law on the books dictating otherwise, local disputes are resolved in local courts. Everyday business in a country, for both locals and foreigners, is governed by local law. Every country on the continent has local, domestic courts that resolve business-related disputes in the same way they resolve disputes between citizens. The size and capacity of these courts ranges dramatically from country to country. So too does the knowledge of local judges regarding business-related matters. In those countries where there is an authoritarian government, the independence of the judiciary is most certainly at question. In other, more established democracies, there are robust court systems, which can have a strong influence over business practices within the country. One of the key benefits of using domestic courts, from the perspective of African nations, is the tremendous understanding of local context that these courts inherently have. There is also an indisputable affordability and convenience to these courts in the eyes of African nations and local investors. As business flourishes on the continent, it is presumed that local courts will also develop their understanding of business-related matters and their repository of business law precedent. That said, inept domestic courts have proven to frustrate even local An important note on RIAs is that they are 12 That said, Member States have The relationship in While arguably having a more DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com. This may qualify as investors. Foreign investors, particularly non-African investors, in most cases, will outright reject local courts. More often than not, multinational corporations, when negotiating transactions on the continent, will insist that disputes be brought outside the respective country, most typically out of the continent as a whole, to neutral international dispute settlement bodies. The most used dispute settlement forum, particularly when non-African investors are party to an agreement, is 16 international investment arbitration. Most bilateral investment agreements between African and non-African countries (as well as intra-Africa agreements) include international arbitration provisions that allow for investment disputes to be brought before an international arbitral tribunal. International arbitration allows a contracting party to bring a claim against the national of another contracting party, which does not allow domestic investors to bring a 17 claim under this system. The purpose of establishing this type of system is three-fold and includes: attracting foreign investment, by allowing for a direct means of enforcement of international disputes on the part of international investors; de-politicizing disputes; and allowing foreign investors an alternative to domestic courts. Finally, between international arbitration and domestic courts, there are regional arbitration tribunals and regional courts. By way of example, the Organization for the Harmonization of African Business Law (OHADA), in addition to creating a set of uniform laws applicable to 16 Member States, also established a Common Court of Justice and Arbitration (CCJA). This court of 13 judges provides advice on proposed uniform Acts and serves as a court of cassation. This court is seen as superior to national courts in matters pertaining to the Uniform Acts and allows cases to be presented by either party or a national judge. This court is however still building its reputation and legitimacy to a point where it can trusted as much as more established centers like the ICC and ICSID, but it is 19 making strides in the right direction. (KIAC), Mauritius’s several arbitral institutions and the still relatively new arbitration systems in Ghana and Kenya. These centers are attracting the attention of other African nations, who have in some cases begun to consider African dispute settlement bodies when choosing the forum for resolving their conflicts. Dispute settlement under the AfCFTA On May 30, 2019, the AfCFTA officially entered into force. This enactment marks a historical opportunity for the African continent and a chance for African nations to put in place a sound dispute settlement system that is more equitable and better meets the development objectives of the continent than the more ad hoc system that has been used to date. According to the United Nations Economic Commission for Africa, the AfCFTA will cover a 18 Other regional bodies include the Kigali International Arbitration Centre 20 countries21 has been predicted to generate as much as USD35 billion in increased trade between African 22 countries. breaking down barriers to the movement of goods, services, people, capital and ideas. This alone is expected to increase the bargaining powers of African nations. At the same time, the agreement is likely to encourage foreign 23 market of 1.2 billion people and a GDP of USD2.5 trillion. The massive economic integration of 52 Above all, the AfCFTA will allow African nations to capitalize and build on their collective strengths, by entry into the continent by creating a more attractive single market. must be supported by strong dispute settlement. This enormous economic potential, however, The AfCFTA includes a Protocol on the Rules and Procedures on the Settlement of Disputes (the Protocol), which 24 provides for the establishment of a Dispute Settlement Body (DSB) that will have the power to establish Dispute 25 closely reflects the current dispute settlement mechanisms of the World Trade Organization. The Protocol Settlement Panels and an Appellate Body. mutual agreement, refer disputes to arbitration, bypassing the DSB. of either the DSB or the arbitration option, including where and under what rules disputes will be settled using either of these mechanisms. The African Union has made clear that the Protocol is to be further developed by Member States, now that the agreement is enacted. This leaves several questions unanswered, but also presents an opportunity for Africa to shape its own future in investment arbitration. To do so, however, the continent must move swiftly to consider what possibilities exist for dispute settlement under the AfCFTA. The way forward: the need for a continental tribunal At the same time, the Protocol provides that the parties may, by Taking collectively the strengths and weaknesses of each of the governing laws and each dispute settlement forum 26 However, the Protocol does not give details DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com. This may qualify as in Africa, there is a strong argument that the African Union should establish a permanent tribunal for investment dispute resolution, located on the continent. First and foremost, at this pivotal moment in its history, Africa must demonstrate that it is able to create an amicable environment for investment that will push the continent forward in its development objectives. To do this, when further negotiating the Dispute Resolution Protocol, the AfCFTA Member States must create a forum that will allow for equitable dispute resolution that takes into consideration the needs of states as much as private investors. A forum located on the African continent with knowledge and experience of the local context within which disputes arise will be crucial in gaining the support of African nations. Having the tribunal in Africa would also reduce costs for African governments. To foster accessibility, the African Union could create various satellite courts of the continental tribunal, allowing cases to be heard in a mutually agreed upon, convenient location for the parties. At the same time, there should be one primary seat where the permanent staff and judges of the court are located on a regular basis. On a continent as big as Africa, geography is crucial in assuring equitable treatment of parties. Moreover, it is essential that the tribunal be located in a stable, democratically strong country where it is less likely to be affected by conflict or turmoil. Satellite offices will be essential in assuring this equitability; however, it will also be necessary for the continent to carefully select where the principal seat of the tribunal is located. In developing this continental court, the African Union should also take care to make sure the voices of all African nations are heard. Africa is a continent of 54 different countries, all at varying levels of economic development and each with its own needs. African Member States must consider this when drafting the rules for procedure for this court. Just as African nations do not want the desires of wealthy investors to overshadow their own needs, nor do smaller, less-developed countries want their voices to be silenced by larger, stronger economies. If the continent is to develop collectively, then all countries must have an equal footing when it comes to dispute settlement. Equitable representation in the tribunal must be a top priority. Judges at this African court should be from different countries across the continent and should have the business knowledge that foreign investors would expect of a tribunal of this stature. This diversity of judges from varying countries would help reduce the bias and corruption concerns that exist with local courts. It will also mean smaller countries are treated equally when in conflict against larger, wealthier countries. Moreover, foreign investors have historically expressed concern that African courts are not familiar with business transactions and this has discouraged them from using local or regional courts. In developing a continental tribunal, it is important to recognize that there are plenty of African nationals with the capacity to consider complex investment disputes that could serve on a continental court, from even the smallest countries with small economies. Using local human capital from across the continent would achieve one of the key purposes of the AfCFTA, namely that local human resources are better used to meet local needs. Perhaps the greatest benefit of having a continental tribunal will be the contextual awareness that is added by having local judges who are familiar with the most pressing issues on the African continent. African-bred judges will have greater concern for the impact investments are having on the continent. African judges will be more likely to consider the social, environmental and labor consequences of investments. This will give them a unique perspective on the reasoning behind why states may take certain policy decisions and allow them to balance that reasoning with investors’ interests. This will in turn serve the purpose of balancing Africa’s sustainable development goals with investment decisions. With this in mind, judges should be carefully selected from each of the AfCFTA Member States. As is provided in the Articles of the current Dispute Settlement Protocol for the DSB process, judges hearing a given case should not be from either of the countries party to the dispute. As has also been suggested under the Dispute Settlement Protocol, the continental tribunal should have an appeals process which allows parties to challenge decisions based on law or evident misinterpretation of facts. States have long complained of the finality of arbitration decisions rendered by party-selected arbitrators, without any higher-level reconsideration. An appeals process using tenured judges would diminish this concern and build consistency. Again, this appellate tribunal should have clearly defined procedures and directives, defined through the negotiation process of the AfCFTA. The new AfCFTA dispute settlement system should be primarily focused on the needs of African countries, rather than being built around the desires of foreign investors. The African Union must do better to protect the interests of all its Member States, and must do so through creating a stronger, more equitable dispute settlement mechanism. As Africa moves forward with the implementation of the AfCFTA, it is essential that dispute settlement be at the DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com. This may qualify as forefront of discussions. Investors will be looking at how well their rights are protected under the new agreement when deciding how aggressively to move into the continent and, at the same time, governments will be more likely to buy into the agreement if it allows for greater protection of their rights than existing mechanisms. DLA Piper Africa is a Swiss verein whose members are comprised of independent law firms in Africa working with DLA Piper. 1Ngobeni, Tinyiko, “The Relevance of the Draft Pan African Investment Code (PAIC) in Light of the formation of the African Continental Free Trade Area” (January 15, 2019) accessed June 25, 2020. 2Makane Moise Mbengue, “Africa’s Voice in the Formation, Shaping and Redesign of International Investment Law” ICSID Review, Vol. 34, No. 2 (2019), 455-481. 3Ibid. See also South Africa Protection of Investment Act of 2015. 4Ibid. 5United Nations Economic Commission for Africa, “Investment Policies and Bilateral Investment Treaties in Africa” (2016) accessed June 30, 2020. 6Ibid. 7Alec R. Johnson, “Rethinking Bilateral Investment Treaties in Sub-Saharan Africa,” Emory Law Journal <http:> accessed June 30, 2020. 8Talkmore Chidede, “The Right to Regulate in Africa’s International Investment Law Regime,” University of Oregon, accessed June 29, 2020. The African RECs include: the Common Market for Eastern and Southern Africa (COMESA), which has enacted the Investment Agreement for the COMESA Common Investment Area; the Southern African Development Community (SADC), whose governing investment law is its Finance and Investment Protocol, as well as the SADC Model BIT; the Economic Community of West African States (ECOWAS), which has adopted the Supplementary Act adoption Community Rules on Investment and the Modalities for their Implementation with ECOWAS; and the East African Community (EAC) and its Model Investment Code. 9United Nations Economic Commission for Africa, “Investment Policies and Bilateral Investment Treaties in Africa” accessed June 30, 2020. 10This includes reciprocal exchange of guarantees and rights of foreign investors, as well as expropriation and most-favored nation. 11United Nations Economic Commission for Africa, “Investment Policies and Bilateral Investment Treaties in Africa” accessed June 28, 2020. 12United Nations, “International Investment Agreements: Key Issues” (2004) accessed June 30, 2020. 13Talkmore Chidede, “The Right to Regulate in Africa’s International Investment Law Regime,” University of Oregon accessed June 30, 2020. Currently, thirty-nine of Africa’s fifty-five countries are party to the World Trade Organization and, therefore, bound by the GATS and TRIMS. 14Ibid. Fifty-three African nations are currently party to the MIGA Convention, which “provides risk insurance to foreign investors against political risks such as expropriation, transfer restriction, breach of contract, non-honoring of financial obligations, as well as war, terrorism and civil disturbance.” 15Ibid. 16The most commonly selected international tribunals include the International Chamber of Commerce (ICC) and the International Centre for Settlement of Investment Disputes (ICSID). The United Nations Commission on International Trade Law’s (UNCITRAL) Rules of Arbitration are commonly used to govern arbitrations not heard by these two Courts, which both have their own rules and procedures. Other notable international arbitration tribunals include the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the Hong Kong International Arbitration Centre (HKIAC), and the Singapore International Arbitration Centre (SIAC). 17Ibid. 18Ibid. 19Fagbayibo, Babatunde, “Towards the harmonisation of laws in Africa, is OHADA the way to Go?” The Comparative and International Law Journal of Southern Africa (November 2009) accessed June 29, DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com. This may qualify as 2020. 20United Nations Economic Commission for Africa, “Africa Continental Fee Trade Area – Questions and Answers” accessed June 30, 2020. 21Nigeria has not yet signed the AfCFTA, meaning Africa’s largest economy is not yet part of the Agreement. 22Warford, Luke, “Africa is Moving Toward a Massive and Important Free Trade Agreement” The Washington Post (July 14, 2016) accessed June 29, 2020. 23Golubski, Christina, “Africa in the News: AfCFTA enters into force,” Brookings Institute (June 1, 2019) accessed June 29, 2020. 24International Trade Centre, “A Business Guide to the African Continental Free Trade Area Agreement” accessed June 30, 2020. 25These bodies are to be comprised of experts in both law and international trade and who are independent from local governments. See “Africa Continental Free Trade Area” Freshfields Bruckhaus Deringer LLP accessed June 30, 2020.