Browsing by Author "Adams, Faadhil"

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    The Impact of COVID-19 on International Arbitration
    (2022) Kamwengo, Mary; Adams, Faadhil
    On 11 March 2020, the World Health Organization categorised the global outbreak of COVID-19 as a pandemic and implored countries to take effective and immediate measures to prevent it from spreading further. Nationwide lockdowns, travel restrictions and physical distancing measures were subsequently effected in several countries, causing many businesses to close down. In turn, many courts found themselves limiting their operations and postponing most hearings save for urgent matters. Whilst different courts were functioning at limited capacity and litigants were struggling to figure out how to make changes to their procedural timetables and deal with the uncertainties brought on by the pandemic, major arbitral institutions intimated their intention to proceed with new and ongoing disputes. The position adopted by these institutions can be attributed to the inherent flexibility and consensual nature of the international arbitration dispute resolution process. Being a consensual and flexible process, international arbitration is well placed to allow cases to advance amidst the pandemic as its procedures can easily be tailored to meet the needs of disputing parties who may be across various jurisdictions. Despite its flexibility, international arbitration has not been impervious to the disruption which has been occasioned by the COVID19 pandemic.
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    The state as a shareholder in cases of reflective loss deriving from commercial activities in international investment arbitration
    (2025) Ripson, Coen Petrus Johannes; Adams, Faadhil; Yeats , Jacqueline
    The purpose of the present thesis is to provide an overview of the legal position of state shareholders in International Investment Arbitration in case of shareholders' claims for reflective loss deriving from commercial investments. The reflective loss principle refers to direct claims brought by shareholders who have suffered a reduction in their shares' value due to actions of the company or a third party. Claims for reflective loss raised by private investors against the host state are often admissible in International Investment Arbitration, although they are generally not accepted under domestic law. The assessment of the treatment of state shareholders' claims for reflective loss under the current investment treaties, with the focus placed on the procedural restrictions, deriving mostly from the ICSID Convention at the arbitration stage, demonstrates an imbalance between private and state shareholders when they both act as claimants. The reasons for the imbalance lie in restrictions for state shareholders originating from: a) the protection scope and aim of International Investment Arbitration, b) the limited amount of fora available to state investors and c) the insufficient protection of state investors under the investment treaties. Based on the existing international investment law and jurisprudence as well as on the domestic law of 10 jurisdictions, the current (international) legal framework on the admissibility of claims for reflective loss made by the state shareholder against the host state is being presented. The potential impact on the host state is considered in relation to the enhancement of the position of the state as a claimant in International Investment Arbitration. In terms of a holistic approach to the issue, the risks that commercial investments made by state entities impose on host states are also being analysed. The identified risks for the host state derive from a) public interest concerns and b) the state shareholder's immunity from execution in case the host state wins the case and needs to enforce the arbitral decision on costs against the state shareholder.
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    Towards a more effective legal framework for investor-state arbitration in Nigeria
    (2021) Aluko, Adebowale; Bosman, Lise; Adams, Faadhil
    There has been a backlash against the Investor State Dispute Settlement (ISDS) system in recent times. Amongst other complaints, critics have argued that the ISDS whittles down the regulatory powers of states in favour of private adjudicators. These criticisms are premised on the fact that unlike commercial arbitration, investment arbitration awards may have far reaching effects on states. In response to these concerns, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III and other similar bodies have been tasked to carry out reforms to address some of these issues. In spite of ongoing reforms, criticisms have continued with some countries abandoning the investor-state arbitration mechanism altogether. In Nigeria, the state of crisis in the judiciary has necessitated the need for a viable alternative to litigation. The ISDS framework therefore remains the preferrable option for the resolution of investment disputes. There have been recent attempts to amend the Arbitration and Conciliation Act 11 of 1988. Also, the Nigerian Investment Promotion Commission recently announced plans to reform the country's investment law framework. It is in the light of these developments that this research has been undertaken to examine the flaws in Nigeria's investment arbitration framework and reforms that may be introduced to address them. In making a case for the retention of the ISDS framework in Nigeria, this study critiques Nigeria's investment arbitration framework and explores a number of recommendations towards addressing current challenges. It is argued that the proposed solutions will improve the effectiveness of Nigeria's investment arbitration framework especially with respect to the legal framework for the consent of the Nigerian government to ICSID arbitration and in the area of court assisted measures and post-arbitral award litigation.
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    UCT Arbitration and Dispute Resolution Unit (ADRU) Collected Paper Series
    (UCT ADRU, 2024-02) Bosman, Lise; Adams, Faadhil
    To inaugurate the ADRU Collected Papers Series, we present a compilation of the works and materials from the African Arbitration Association's 4th Annual Conference, hosted in Cape Town from 12-14 October 2023. This conference – held under the banner "International Arbitration in Africa: Transitions and New Perspectives" – provided a platform for discussing the evolving landscape of international arbitration in Africa. It focused on capturing the currents of change, challenge, and transition in the field, highlighting significant and often positive transformations in thought and practice. The Co-Editors for this inaugural volume are Lise Bosman and Courtney Kemp.
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    UCT Arbitration and Dispute Resolution Unit (ADRU) Collected Papers Series
    (UCT ADRU, 2023-02-19) Bosman, Lise; Adams, Faadhil
    To inaugurate these Collected Papers, we present a compilation of the works and materials from the African Arbitration Association's 4th Annual Conference, hosted in Cape Town from 12-14 October 2023. This conference – held under the banner "International Arbitration in Africa: Transitions and New Perspectives" – provided a platform for discussing the evolving landscape of international arbitration in Africa. It focused on capturing the currents of change, challenge, and transition in the field, highlighting significant and often positive transformationsin thought and practice. The Co-Editors for this inaugural volume are Lise Bosman and Courtney Kemp.