Browsing by Author "Bosman, Lise"

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    Confidentiality and third party participation in international investor-state arbitration
    (2015) Awojobi, Adeola Falilat; Bosman, Lise
    The contractual nature of arbitration as a form of alternative dispute resolution in the context of cross-border/international disputes traditionally emphasises confidentiality as one of the fundamental characteristics of international arbitration. Confidentiality is often assumed to be a common feature and advantage of international commercial arbitration, and the privacy of arbitral proceedings has facilitated and encouraged recourse to arbitration. However, the issue of confidentiality has a different dimension and is limited in the context of international investment and trade disputes. The participation of States, State entities, sub-divisions and agencies in international disputes shifts the emphasis from privacy and confidentiality to transparency and accountability. This study analyses the role of confidentiality in investor-State arbitration, noting that confidentiality is not always preserved in many respects and stages throughout the arbitration proceedings. The paper considers the issues that challenge the legal effectiveness of confidentiality in international investor-State arbitration and the development towards transparency. In particular, the paper examines the participation of non-disputing/third parties in investor-State arbitration, the different approaches of major arbitral institutions towards the issue of confidentiality, and the arguments for and against confidentiality in relation to transparency. It concludes by making recommendations in the context of the development of investor-State arbitration.
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    Harmonising investment laws in the OHADA space
    (2015) Mugangu, Marie Providence Ntagulwa; Nkomo, Marumo; Bosman, Lise
    The Organisation for the Harmonisation of Business Law in Africa (OHADA) was established for the purpose of restoring legal and judicial security in the region to attract more investment. The OHADA Treaty included certain areas of business law within its ambit but omitted investment law. There are several laws on investment in the region at the national, regional and sub-regional level that regulate the treatment of foreign investments such as CEMAC and UEMOA investment charters. Moreover OHADA states sign BITs to protect foreign investments. The relationship between the different sub regional laws on investment and OHADA is not yet clear but case law suggests that CEMAC and UEMOA courts recognise the supremacy of OHADA law and their lack of competence to hear matters regulated under OHADA. The standards of protection granted by OHADA states in BITs are very high thus taxing on them. This thesis suggests that OHADA states should either qualify these standards of protection or replace them with more specific provisions. The OHADA system of arbitration cannot effectively settle investment disputes arising out of a BIT leaving international arbitration systems such as ICSID as the best alternative to resolve investment disputes arising out of BITs.
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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.