THE AUTHORS:<\/strong> On Monday, March 23, 2026, the African Academy of the Practice of International Law (\u201cthe Academy\u201d) organized a conference dedicated to the new challenges of arbitration in Africa, specifically in the mining, energy, and oil sectors. This conference aimed to examine innovative models in investment arbitration and to strengthen dispute resolution mechanisms, in order to enable African States to reaffirm their sovereignty over their natural resources, in compliance with ethics, environmental standards, and human rights.<\/p>\n\n\n\n The panel, moderated by Prof. Hugues Kenfack<\/strong><\/a> (Professor at the University of Toulouse Capitole), was composed of Mr Guy Block<\/strong><\/a> (ICSID<\/a> arbitrator and partner in the energy department at Janson<\/a> Law Firm), Mr Alain F\u00e9n\u00e9on<\/a> (Honorary lawyer and arbitrator), Prof. Walid Ben Hamida<\/strong><\/a> (Professor at the University of Lille), Ms Yaye Diabat\u00e9<\/strong><\/a> (lawyer at Clyde & Co<\/a> and co-chair of the Academy\u2019s arbitration section), Mr Bernard Hanotiau<\/strong><\/a> (Hanotiau Tossens Goldman), and finally, Mr St\u00e9phane Braban<\/strong>t<\/a> (Senior Partner at Trinity International<\/a>).<\/p>\n\n\n\n To begin the session, the moderator gave the floor to Mr Block, who outlined the current context of mining and energy disputes, both in Africa and globally. He began by demonstrating that a dispute may arise at three different stages of the lifecycle of extractive projects: upstream of the allocation of rights, during the operational phase, and at the end of the concession. He noted an explosion in energy and mining disputes, with an increase from 10% to 40% of cases brought before the International Centre for Settlement of Investment Disputes (\u201cICSID<\/strong>\u201d)<\/a>. He invited the audience to consider whether these disputes concern only Africa, or whether African cases merely reflect the most alarming statistics.<\/p>\n\n\n\n Answering in the negative, he illustrated his point with a series of cases across different regions of the world: Mexico, Russia, Slovenia, Kazakhstan, and Peru, thereby emphasizing the profoundly global nature of these issues. Finally, beyond the litigation framework, he stressed the connection between the energy sector and environmental concerns: \u201cIt is essentially Ms Ecology and Mr Environment that are entering into projects,\u201d referring to the growing desire to align energy policies with ecological transition objectives.<\/p>\n\n\n\n He also recalled the mistaken distinction often drawn between mining and energy: \u201cone gets the impression that the right hand ignores the left.\u201d He cited the cases Nova Scotia v. Venezuela<\/a><\/em> and Westmoreland v. Canada<\/a><\/em>, where the tribunal refused protection on the basis of a restrictive understanding of the investment, effectively isolating mining activities from their energy dimension, an approach he considered questionable. On this point, he concluded his presentation by emphasizing the need to reconcile the two notions: \u201cNo mining without energy.\u201d<\/p>\n\n\n\n Taking a completely different approach, the floor was then given to Mr Feneon, who highlighted mediation as an evolving procedure that is increasingly integrated into disputes in the extractive sector; whether prior to arbitration, during arbitral proceedings, or even after the award has been rendered. He addressed the financial dimension of arbitration, noting that some awards, such as the 10 billion USD ordered against Nigeria by an ICSID tribunal, can far exceed a State’s financial capacity. In such cases, amicable settlement offers a practical means of reconciling the parties and reaching a mutually acceptable outcome.<\/p>\n\n\n\n He illustrated this with the case Echo Vault v. Tanzania<\/a><\/em>, where, through a mediation process, the parties agreed on a settlement of 30 million dollars, whereas the original claim amounted to ten times that figure. Mediation also plays a role in addressing the issue of non-enforcement of arbitral awards, which is often hindered by execution immunity, the inalienability of public assets, and procedural constraints. Whether institutional or ad hoc, mediation sometimes emerges as a mandatory preliminary step, particularly under certain frameworks such as the OHADA rules.<\/p>\n\n\n\n Third, Prof. Ben Hamida took the floor to draw the audience\u2019s attention to the interaction between the obligation of transparency in the extractive sector and the confidentiality of arbitration. He began by establishing that transparency is becoming a cross-cutting standard in all areas of law, and is the subject of increasing demand from States in the extractive sector, particularly through the requirement to publish mining contracts. Calls for the codification of such an obligation are driven by the fight against corruption, often associated with this sector, the need to enable oversight of the compliance of investments with fiscal, social, and environmental standards, as well as the claims of local communities, which are directly affected by these projects and concerned with their credibility.<\/p>\n\n\n\n In response, a gradual movement toward the institutionalization of transparency in mining contracts has taken place in around thirty States, in Africa and elsewhere, encouraged by soft law instruments such as those of the OECD. Nevertheless, he questioned whether such transparency can and\/or should extend to arbitral awards related to these contracts, where arbitrators interpret their clauses. It is at this point that he presented the audience with the paradox of having a public mining contract containing an arbitration clause referring disputes to confidential arbitration, thus revealing a conflict of norms.<\/p>\n\n\n\n He explained that such an extension could be envisaged by treating transparency obligations as overriding mandatory rules (lois de police), extending to everything connected with the contract, including the award interpreting it, and thus binding not only the parties but also the arbitral institution. However, he recalled that overriding mandatory rules are subject to strict scope and interpretation, which does not guarantee such an extension. Alternatively, he suggested invoking estoppel against the State party to the contract, which could be seen as having waived the transparency obligation.<\/p>\n\n\n\n Next, Ms Diabat\u00e9 took the floor to address the rise of nationalist movements in Africa within the mining sector and their impact on investments. She first pointed to the growing interventionism of States through legislative means, particularly via reforms aimed at strengthening State control and participation in exploitation activities. These include requirements for local content, the introduction of pre-emption rights, as well as increased tax pressure.<\/p>\n\n\n\n Alongside these normative measures, coercive actions may also be observed; these include the revocation of licenses, the seizure of assets, and forms of indirect nationalization. She referred to a recent dispute between Mali and a major investor, where, prior to referral to an ICSID tribunal, the conflict was resolved through a settlement. This example illustrates the coexistence of both a negotiation dynamic and a confrontational dynamic in disputes within the extractive sector.<\/p>\n\n\n\n Despite the emergence of conflict, the parties share a mutual interest in preserving the continuity of their economic operations. She therefore emphasized the existence of space for negotiation between the parties in order to reach a solution. She added that certain environmental tax measures may affect the profitability of investments and may be characterized as indirect expropriation when they are introduced after the investment has been made.<\/p>\n\n\n\n Mr Hanotiau then took the floor to address the issue of counterclaims in investment arbitration, particularly in the mining sector. While investment arbitration traditionally allows investors to bring claims against States, States may also submit counterclaims for harm caused by investors. In practice, such counterclaims remain rare, largely due to the absence of explicit investor obligations in many treaties.<\/p>\n\n\n\n Nevertheless, Article 46 of the ICSID Convention permits them, provided jurisdictional requirements are met and a direct connection to the dispute exists, with some tribunals holding that consent to ICSID arbitration implicitly extends to counterclaims. Others rely on umbrella clauses, which allow contractual obligations to be elevated to the level of treaty obligations, or on the existence of a specific agreement between the parties.<\/p>\n\n\n\n The case Burlington v. Ecuador<\/em> <\/a>represents a significant development in this regard, as the tribunal admitted and upheld a counterclaim based on environmental damage. Today, although their success remains limited, counterclaims are experiencing increasing development, particularly in environmental disputes, as illustrated by the case Aven v. Costa Rica<\/a>,<\/em> as well as in recent investment treaties, which tend to recognize this possibility more explicitly.<\/p>\n\n\n\n Finally, Mr Brabant\u2019s intervention focused on arbitration in the extractive sector through the lens of seeking a balance between acceptability and efficiency in the African context. Opening with an emotional statement: \u201cEverything is human,\u201d he conveyed the idea that disputes are no longer confined to a confrontation between States and investors, but now incorporate issues of social acceptability, particularly those relating to local communities.<\/p>\n\n\n\n In this context, the arbitrator’s role is evolving beyond mere dispute resolution, encompassing complex situations, multiple interests, and the restoration of balance. This shift reflects a greater openness to public international law considerations, such as human rights, and to third-party participation. The intervention ultimately stressed the need to adapt arbitration to local realities and strengthen African arbitration centers to enhance their legitimacy and efficiency.<\/p>\n\n\n\n In their final remarks, the panel presented the board behind this conference. The Lex Extractiva<\/em> Chair positions itself as a center of excellence dedicated to a major strategic transformation: shifting Africa from the status of a \u201crule-taker\u201d to that of a central actor in the global regulation of critical resources.<\/p>\n\n\n\n In a context of increasing demand for strategic metals, it aims to structure a sovereign governance of value chains, from extraction to recycling, and to ensure sustainable value capture. Supported by an alliance between the African Academy of the Practice of International Law, MINES Paris – PSL, and the African Legal Support Facility, it operates as a true normative command center, where the legal, scientific, and industrial standards of the energy transition are designed.<\/p>\n\n\n\n Over a 25-year horizon, it deploys a platform for systemic transformation based on the control of extractive value chains, the training of experts capable of designing \u201cgenerational\u201d contracts, and the strengthening of operational sovereignty. For its partners, it represents a strategic lever: securing local content commitments, reducing risks, and providing access to advanced normative engineering.<\/p>\n\n\n\n This article was originally published in PBA Bulletin on 17 April 2026, as part of a special edition curated by Paris Baby Arbitration (PBA)<\/a>, in collaboration with Jus Mundi <\/a>and Jus Connect<\/a>.<\/p>\n\n\n\n
Salma Gharraf<\/strong>, Master’s Candidate at Paris 1 Pantheon-Sorbonne<\/strong>
Margarita Ilieva<\/strong>, Master’s Candidate at Universit\u00e9 Paris-Nanterre<\/strong><\/p>\n\n\n\n
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As part of Paris Arbitration Week 2026, Paris Baby Arbitration (PBA)<\/a><\/strong>, in collaboration with Daily Jus<\/a><\/strong> and Jus Mundi<\/a><\/strong>, brings together contributions in a special edition of PBA Bulletin<\/a>,<\/strong> sharing reflections and perspectives from across this year\u2019s events.<\/em><\/h4>\n<\/blockquote>\n\n\n\n
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