This article outlines key facts pertaining to Africa’s natural resources landscape. Some of the recent issues faced in African energy projects are explored, including those faced by parties in arbitrations stemming from energy projects in Africa. Other related issues are also explored, such as diversity in African arbitrations.
Africa, the world’s second largest and second most populous continent comprising 54 different states, has considerable oil and natural gas reserves that are a crucial element to its economic development and sustainability plans.
The continent is a significant oil-producing region. It accounts for 7.8 per cent of global oil production and is responsible for roughly 8.9 per cent of global oil exports. Africa is home to four of the top 30 oil-producing countries in the world: Nigeria, Angola, Algeria and Egypt. Nigeria is the largest oil-producing nation on the continent, followed by Algeria and Angola.
Africa is also home to substantial natural gas reserves and accounts for 6.9 per cent of the world’s proven gas reserves. Within the region, Nigeria has the largest proved gas reserves, followed by Algeria, Senegal, Mozambique and Egypt.
Africa also has abundant potential for renewable energies, most of which is under-exploited. Despite being home to 17 per cent of the world’s population, Africa currently accounts for just 4 per cent of global power supply investment and 1.3 per cent of the world’s renewable power generation share. Solar and wind together constituted 3 per cent of Africa’s generated electricity in 2018 versus 7 per cent in other regions of the world. According to a report by the International Energy Agency, only 10 per cent of sub-Saharan Africa’s hydropower potential is currently being exploited.
However, the renewable energy landscape in Africa is rapidly evolving and significant projects in the renewable sector have taken place recently.
Developments in Africa have also been impacted by Agenda 2063: Africa’s blueprint and master plan for transforming the continent into a global powerhouse of the future. Agenda 2063 recognises that by 2070 the total global population will grow by 2.4 billion people, with more than half of this growth taking place in Africa. Against this background, Agenda 2063 seeks to accelerate the development of Africa’s energy and infrastructure requirements, recognising that sustainable energy solutions are key to transforming the continent.
The immense potential for growth in the energy sector in Africa, and the need to do so in line with the large and growing population’s energy demand, makes it an attractive destination for global investment flow. In 2020, Egypt issued its inaugural green bond worth US$750 million, with Ghana to follow suit.
The renewable energy resources with which Africa is endowed, in tandem with the recent initiatives to accelerate development of its energy requirements, indicates that there will likely be an increase in energy projects and, with that, the potential for a growing number of disputes coming from the energy sector in Africa.
Ownership, control and management of natural resources
Of fundamental importance in relation to how disputes may flow from the region’s energy sector is how rights to own, control and manage resources are allocated by the local law and through various contractual structures involving the state, state-owned entities and international partners.
Natural resources in Africa are generally owned by the state. The states typically adopt a production sharing agreement (PSA) or grant licences permitting foreign companies to explore and, if successful, to develop and produce oil and gas in the region. PSAs differ from licences in respect of how the state is compensated for a successful exploration. Under a licence arrangement, the operator’s profits are taxed by the state, while, under a PSA, the state derives value principally by receiving a share of the oil and gas produced by receiving income via fees, royalties or bonuses, or a combination thereof.
African states are typically represented by national oil companies (NOCs), which then enter into PSAs with international oil companies (IOCs) to facilitate transfer of the technical know-how and financial expertise in exploration and development operations. PSAs typically contain the rights of exploration and extraction from specific designated areas over a specified and limited amount of time and will stipulate the portion of oil and gas that the state and the IOCs are to receive respectively.
Apart from PSAs and licences, some African states also sign concession agreements. Concession agreements are typically structured in a manner in which the government grants exclusive rights to private oil companies for long-term exploration, development, production and marketing rights for oil resources.
The exploration and development of resources is a high-risk endeavour in a geological, commercial, technical, managerial and political sense. Therefore, almost all sub-Saharan African countries have opted for PSAs, licences and/or concession agreements to manage their energy resources; these arrangements limit the governments’ exposure (namely financial and reputational) in the event that reserves are not discovered during exploration, while enabling them to also participate in the management of the project.
Joint venture arrangements between government and semi-government entities on the one hand, and private corporations on the other, have also been increasingly relied on. In January 2021, Italian multinational energy firm Enel’s renewables arm, Enel Green Power, partnered up with Qatar Investment Authority, which is among the top 10 largest national sovereign wealth funds in the world, to form a joint venture to finance, build and operate renewable projects in sub-Saharan Africa.
In 2019, a joint venture agreement between Africa Oil Corp, Tullow Oil Plc and Total SA was signed with the government of Kenya for the first-ever development of oil fields in the South Lokichar basin. At the time of writing, the joint venture partners and Kenyan government appear to have made significant progress and had received extensions to the block exploration licences in Kenya to the end of 2021.
Public–private partnerships (PPPs) also play a key role in the energy sector. PPPs typically involve a contract between a government or a state-owned entity and a private party where the private party assumes a function usually carried out by the government such as providing electricity, water or building infrastructure. African countries have relied on PPPs in various sectors. An example of a successful PPP is the Kigali Bulk Water project, which received significant backing from the African Development Bank, the World Bank and private sector players.
Prevalence of arbitration in African energy projects
The precise nature of the arbitration agreements contained in contracts between states or their NOCs, and the relevant counterparty, is often confidential. The contracts that are publicly available indicate a preference for arbitration as the dispute resolution forum. For instance, the 2013 Tanzanian model PSA contains an ICC arbitration dispute resolution clause, and the 1999 Ugandan model PSA provides for arbitration under the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention). Further, the Kenya standardised power purchase agreements also provide options for arbitration under the Kenyan Arbitration Act or the ICC Rules of Arbitration for projects that are above 10 megawatts.
Commercial arbitration
Reflecting this preference, global energy disputes accounted for approximately 18 per cent (167 of the total 946 cases registered) of the ICC’s 2020 caseload. In 2018, the ICC Court of Arbitration, in a bid to strengthen its presence and enhance awareness of ICC’s dispute resolution mechanism in the region, launched an Africa Commission. Recently, in May 2021, the ICC also created a new role for Regional Director for Africa to work closely with the ICC Africa Commission towards developing ICC activities and raising awareness of ICC dispute resolution services within sub-Saharan countries. In light of these efforts by the ICC in Africa, the number of African parties resolving their dispute through ICC arbitration may well increase, suggesting a concomitant increase in African energy disputes.
However, parties to energy agreements are not only exclusively choosing ICC arbitration. In 2020, global energy and resources disputes constituted 26 per cent of the London Court of International Arbitration (LCIA)’s caseload.
Investor-state arbitration
As at 9 December 2021, African states had signed 758 bilateral investment treaties (BITs). In addition to the BITS, there are also a number of regional trade agreements entered into between African states. Against this backdrop, there have been a number of Africa-related ICSID cases involving energy disputes. In 2021, 15 per cent of ICSID cases involved a sub-Saharan African state party. This is not an insignificant number, as it is topped only by 22 per cent from South America and compares to 12 per cent from the Middle East and North Africa and 4 per cent from North America. The oil and gas sector was the most litigated sector, accounting for 25 per cent of the cases that have been registered at ICSID as of 30 June 2021 followed closely by the electric power and other energy sector at 17 per cent.
Enforceability
While concerns remain about the enforceability of foreign arbitral awards in many African jurisdictions, recent years have shown notable successes on the enforcement landscape in Africa. For example, the Tanzanian courts enforced a US$65 million award against the Tanzania Electric Supply Company (TANESCO) in the Dowans case.
A majority of African states are party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Only 12 of the 54 African states are not signatories to the New York Convention. Malawi was the latest African state to accede to the New York Convention in March 2021 and three African states – Ethiopia, the Seychelles and Sierra Leone – signed and ratified the New York Convention in 2020. Most African countries are also party to the ICSID Convention. In contrast, most African states have not yet adopted a national arbitration law based on the UNCITRAL Model Law.
Regional arbitration centres
While the reliance of African parties has more commonly been on international arbitral institutions such as the ICC and LCIA, there are a number of regional arbitration centres gaining prominence in Africa. These include, among others, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Arbitration Foundation of Southern Africa (AFSA), Lagos Court of Arbitration (LCA), Kigali International Arbitration Centre (KIAC), Nairobi Centre for International Arbitration (NCIA), the Mediation and Arbitration Centre (MARC) in Mauritius, and Casablanca International Mediation and Arbitration Centre (CIMAC).
The caseloads of African arbitral institutions have been growing. CRCICA had administered 1,385 cases at the end of 2019, including 82 new cases in 2019 alone. AFSA also has a caseload of approximately 60 international matters in addition to its domestic caseload of about 500 matters. The caseloads of KIAC, NCIA and the LCA are also growing.
In addition, regional institutions like the Organization for the Harmonization of Business Law in Africa (OHADA)’s Court of Justice and Arbitration may also play an increasingly prominent role as an international arbitration-administering institution.
Aside from the growing number of arbitration centres, African states are increasingly aligning their legal frameworks to an international standard to make arbitrations in Africa more attractive to the foreign markets. Tanzania revamped its legal framework for arbitration at the national level by passing a new national arbitration law, the Arbitration Act 2020, that came into force in February 2020 to replace its 1931 law. Notably, this new act follows the English Arbitration Act model rather than the UNCITRAL Model Law, and it remains to be seen how this will develop in practice.
Types of disputes in African energy projects
Given the diverse range of contractual arrangements and partnerships that exist in energy-related projects in Africa, disputes arise due to a wide range of issues depending on the stage and phase of the respective project.
Some recent disputes have arisen out of:
termination of PSAs and other granting agreements;financing and operation mechanisms between joint venture partners (eg, disputes under joint operating agreements);design and engineering related issues in the construction of projects;delays, disruptions, acceleration and mitigation-related claims where projects are delayed or disrupted;disputes involving taxation, environmental, labour and other issues;disagreement on the currency of payments to be made; andnationalisation of resources.
For example, in the Kenyan Menengai project, a geothermal power project, some of the challenges that arose included delayed fulfilment of the condition precedent involving securing letters of comfort, carrying out feasibility studies on the availability of steam, and failing to reach financial closures with financiers in time.
In an ad hoc arbitration award issued under the rules of arbitration of the South African Association of Arbitrators in January 2020, Frazer Solar GmbH’s claims against Lesotho were partially allowed. For reneging on a contract to purchase solar energy equipment under a supply agreement in a project pertaining to the installation of LED lights in all government buildings and homes of public servants over a period of four years, Frazer Solar GmbH was awarded roughly half of the €102 million claim it sought against Lesotho.
An operator and producer of a hydroelectric power station, Pungwe B Power Station, initiated ICC arbitration proceedings against Zimbawe’s state-owned electricity company, Zimbabwe Electricity Distribution Company, for the sum of US$8.6 million of electricity delivered from the power plant. The dispute pertained to disagreement over the currency of the payments (ie, US dollars as denominated in the power purchase agreement that Pungwe B claimed or Zimbabwean dollars as the counterparty had successfully argued).
Trends
From a review of recent energy projects and disputes that have taken place from these projects in Africa, a number of trends can be discerned. These include the increasing reliance on renewable energy sources, the relationship between state boundaries and energy resources, and the increased emphasis on localisation, among others.
Renewable and sustainable projects
Given its proximity to the equator, solar energy potential in Africa is virtually limitless. With its richness in hydropower, solar and wind, the region has significant potential to meet its growing population’s energy demand by way of renewable and sustainable projects.
Some of the key projects in this regard include:
The fourth largest solar power plant in the world, the Benban Solar Park, in Egypt. As part of Egypt’s goal to increase its share of renewable energy from a small fraction in 2019 to 20 per cent by 2022 and 42 per cent by 2035, this solar plant was developed by more than 30 companies from 12 countries. This US$2.1 billion project was constructed and overseen by the state-owned New and Renewable Energy Authority and now provides nearly 1.5 gigawatts to Egypt’s national grid. When all the plants are scheduled to be powered up, they will be capable of churning out a combined 1,650 megawatts of electricity – enough to power hundreds of thousands of homes and businesses. Estimates suggest that the share of renewables in Egypt’s power generation could be as high as 53 per cent by 2030.Located in the Northern Cape Province of South Africa, the Redstone project is a concentrated solar power plant expected to deliver clean electricity to over 200,000 households and prevent over 440 metric tons of carbon dioxide emissions annually. Analysts have singled out South Africa as the ‘world’s most attractive emerging country for solar energy’ in light of this project.One of the largest solar projects in West Africa is being developed in Guinea. The Khoumagueli solar project will contribute significantly to the country’s aim of producing 30 per cent of its electricity from renewable sources by 2030. Guinea’s electricity supply is largely derived from hydropower, which can be susceptible to seasonal fluctuations in rainfall and has reportedly led to financial losses to business equivalent to about 4.7 per cent of annual sales.As noted above, Kenya has pursued the Menengai geothermal power plant. The completion of the project in 2020 placed Kenya as the first and largest African producer of geothermal energy. However, reported delays in the development of the project has led to Kenya reversing its policy on involving private project partners in energy projects, and the Kenyan government is now looking to work with state-owned KenGen in the second and third phase of development of the Menengai geothermal fields.
These are significant developments given that approximately 600 million people, or 48 per cent of the continent’s population, still have no access to electricity. Studies estimate that Africa could meet nearly a quarter of its energy needs from local and clean renewable energy sources by 2030, with the potential for its share of renewables to increase to two-thirds of its total energy demand by 2050, in line with commitments to the Paris Climate Agreement and the United Nations Sustainable Development Goals. As the number of renewable projects increases, there would likely be a concomitant rise in disputes arising from the operation, management and structure of these projects.
Considering Africa’s potential for renewable energy, its progress in adopting renewable energy technologies (RETs) has been slow. In terms of its size and population, Africa is lagging behind as compared to the rest of the world with regard to the deployment of renewable energies. Several factors, including lack of technical know-how, skilled labour, inadequate legal framework and limited policy interest, contribute to the slow pace of the adoption of RETs in the region.
Disputes over state lines
Energy arbitration projects have led to disputes over state lines, aptly demonstrated by the US$4 billion Grand Ethiopian Renaissance Dam project on the Blue Nile River. The construction of this dam has been the subject of tension and long-running dispute between Egypt, Sudan and Ethiopia, after Ethiopia announced that it had started filling the dam’s reservoir; Egypt has taken the position that any action relating to the dam should not be undertaken without a legally binding agreement over the equitable allocation of the Nile River. Underlying concerns pertain to the control of the Nile River, Africa’s longest river, which Egypt relies on for 90 per cent of its water, but has been underutilised by Ethiopia. There is a possibility that this potential multi-state dispute may escalate to legal proceedings.
In October 2021, the International Court of Justice (ICJ) delivered its ruling in the dispute between Somalia and Kenya pertaining to the maritime boundary delimiting the Indian Ocean, exclusive economic zone, and continental shelf, among others. In its decision, the ICJ largely sided with Somalia and adjusted the equidistance line in favour of Somalia’s position. The area that pertained to this dispute is believed to be rich in oil and gas, offering a boost to the economy of whichever country controls it.
Local content requirements
Local content requirements (LCRs) are policies imposed by governments that mandate IOCs to use a certain amount of locally supplied services and/or locally manufactured goods, as a precondition to operate in the country. Currently, more than 80 per cent of the resources used in the exploration, development and production of hydrocarbons in Africa come from abroad. In a bid to change this trend, various African governments have imposed LCRs in the form of initiatives to promote the use of local goods and services, increased participation of national labour, and local usage of technology and capital in the entire value chain of the oil and gas industry. Various African governments have amended their energy legislation to include such LCRs. A few notable examples include Senegal and Ghana.
Senegal
Over the past five years, Senegal has attracted various IOCs after a significant offshore oil and gas discovery in 2016, in what is now called the SNE Deepwater Oil Field. The discovery, led by Cairn Energy, is the world’s largest oil discovery since 2014.
Senegal’s oil and gas sector was previously regulated by the 1998 Petroleum Code. On the back of the oil discoveries, Senegal revised this legislation and introduced a new petroleum code and local content law in February 2019. Senegal has also set itself the target of reaching 50 per cent local content by 2030.
The new petroleum code introduces provisions devoted to LCRs. It mandates the participation of the national private sector in oil operations, contracts relating to the construction of related infrastructure, and supply of services relating to oil and gas projects. It also contains obligations for technology transfer to Senegalese companies.
In addition, the new framework mandates that oil and gas operators annually submit a content plan that outlines their use of either local or international contractors, service providers or suppliers. In different steps of the project, oil and gas operators must show that they have made efforts to utilise Senegalese personnel and companies, provided that the local personnel and companies are equipped with the required qualifications and capacity.
Recently, the Senegalese government set up a local content monitoring committee, the National Committee for Monitoring Local Content, to enforce and implement the local content policy developed by Senegal.
Ghana
In 2013, Ghana passed the Local Content and Local Participation in Petroleum Activities Regulations. Aimed at developing local capabilities, these regulation required every petroleum agreement or licence between Ghana and IOCs or NOCs to include at least 5 per cent equity participation of indigenous Ghanaian companies. This is a mandatory requirement for any IOC or NOC seeking to conduct operations in the upstream sector of the economy. The regulations also require entities in the petroleum sector to transfer advanced technology along with their recruitment and training programmes to the Ghana National Petroleum Corporation. The Petroleum Commission that was set up in 2011 also has a designated department responsible for monitoring that IOCs and NOCs properly implement the various laws and legislations pertaining to LCRs.
At present, a majority of the resources used in the exploration, development and production of hydrocarbons, as well as in the renewables energy sector in Africa, are still supplied from abroad. African states will need to strive to strike the right balance between maximising local participation and maintaining a stable energy investment regime.
Covid-19
As it has globally, the covid-19 pandemic has similarly impacted the economies of the African continent, and the energy sector is no exception. Lockdown measures worldwide have reduced global energy demand resulting in a steep drop in oil prices. Not all of this is negative for Africa as this may be the incentive needed for Africa to accelerate its development and subsequent reliance on the renewable energy sector. This would suggest an increase in disputes arising from both the oil and gas sector (due to fallout from reduced prices) and renewable energy projects (due to growth in this sector) in Africa.
Political instability
There has been a wide range of issues arising in oil-rich countries that have given rise to arbitration proceedings relating to PSAs. While these disputes often involve issues relating to royalties, taxes, cost recovery, the scope and transfer of rights, price adjustment claims and disputed tax payments, such disputes can also arise as a result of civil unrest, political instability and issues relating to force majeure.
For example, the political upheaval that followed the Arab Spring of 2011 and the overthrow of President Mohamed Morsi in Egypt led to an ICC arbitration claim filed by a Kuwaiti-led consortium against Egypt relating to the termination of a long-term concession agreement that was awarded in 2015 covering the development, building and operation of a container facility on Egypt’s Mediterranean coast.
Diversity in arbitral tribunals and counsel
The issue of diversity in African-related arbitration has gained increasing attention in the past few years. While the past few years have witnessed a growing number of claims originating from Africa, there has not been a corresponding growth in African nationals involved in the arbitral tribunals or as counsel. Data collected by different arbitration institutions confirms the under-representation of Africans on international arbitral tribunals, especially in arbitrations that are connected to Africa.
In 2020, 6.8 per cent of the overall number of parties who arbitrated their disputes before the ICC were from African countries. However, in the same time period, the least represented arbitrator nationalities were North Africa (1.1 per cent of the total appointments in 2020) followed by sub-Saharan Africa (1.2 per cent of the total appointments in 2020).In 2020, 27 per cent of cases registered under the ICSID Convention involved state parties from sub-Saharan Africa, and, overall, (1) oil, gas and mining, and (2) electrical power and other energy contributed to the most number of cases registered at ICSID (41 per cent of ICSID’s total caseload belonged to these two sectors). However, the least represented arbitrator nationalities were from sub-Saharan Africa, with only 2 per cent of arbitrators coming from this region. These figures are in stark comparison to the 47 per cent from Western Europe and 20 per cent from North America.At the LCIA, parties from sub-Saharan African countries comprised 11.7 per cent of the overall number of parties in 2020. However, the least represented arbitrator nationalities were from sub-Saharan Africa with a total of 10 appointments. As a comparative benchmark, parties from United Kingdom comprised 13.4 per cent of the overall number of parties in 2020, and around 66 per cent of the arbitrators that were appointed were from the UK (337 British and 15 Irish).
Various arbitral institutions have implemented diversity initiatives to respond to the lack of diversity reflected in their arbitrator pools. For example, and as noted above, the ICC Court of Arbitration appointed a regional director for Africa to work closely with the ICC Africa Commission to increase its presence in Africa and attempt to expand the pool of qualified African practitioners who may be appointed in the many ongoing and future disputes in the region. This new role acknowledges the institution’s ‘efforts to expand the pool of qualified African practitioners who may act in the many ongoing and future disputes arising in the region.’ Similarly, the LCIA has created a platform for African users, the LCIA African Users’ Council, which has been established to meet the developing needs of the business community.
Along with the arbitral institutions, various groups of practitioners, academics and other arbitration stakeholders have suggested solutions to address under-representation of African arbitrators:
‘The African Promise’, launched in 2019, and modelled on the ‘Equal Representation in Arbitration Pledge’, seeks to increase the number of Africans appointed as arbitrators, especially in arbitrations connected with Africa, in order to achieve a fair representation as soon practically possible.I-ARB Africa tracks international arbitration disputes concerning African parties and seeks to contribute to African arbitration by promoting Africa through developing a list of African arbitrators and directory of African practitioners and experts and providing analysis of by African experts on ongoing developments through blog posts and pod casts. I-ARB has published a list titled ‘Africa’s 100’, which contains details of African arbitration practitioners whose experience in arbitration (domestic or international), knowledge of international law or other relevant fields make them eligible to be appointed as arbitrators.
Increasing diversity and inclusion is and ought to remain a top priority over the next few years. Increased participation of African arbitrators in disputes originating from the continent will not only ensure legitimacy of arbitration proceedings, but will also bring to the table additional perspectives in deliberation that would further enable a more comprehensive understanding of parties’ positions.
Conclusion
The adage, paradox of plenty, could not be truer when it comes to the African energy sector. The potential for Africa to grow its energy sector, and in particular to develop and rely on its renewable energy source is certainly immense. As these projects grow in size and number, an increase in arbitration disputes will likely be discerned, which suggests that parties will be bringing higher-value claims as well as more complex disputes in their arbitrations.
Notes
