Afriland First Group SA and others v. Democratic Republic of the Congo, ICSID Case No. ARB/23/38

Short Name:

Afriland v. DR Congo

Applicable arbitration rules:
Seat of Arbitration:
Investment treaty:
Applicable legal instruments:
Amount of damages:
US $0

Available documents

16 Jul 2025
Case Profile:

Afriland v. DR Congo

/ Participants Details
Claimant appointee
Claimant appointee:
Respondent appointee
Respondent appointee:
Chair/President
Chair/President:
Arbitrator(s)
Judges
Other counsel
Entities (Firms/Institutions)
[field_entities]
Claimant's expert
Respondent's expert
Claimant's witness
[field_claimant_s_witness]
Respondent's witness
[field_respondent_s_witness]
Other witnesses
[field_other_witnesses]
Tribunal secretary
Tribunal assistant
Annulment Committee president
Annulment Committee members
WTO members
[field_wto_appellate_body_memb]
WTO chair
[field_wto_appellate_body_chai]
Country
Print reporter
Case Summary
This summary note is machine-generated. Always consult the original materials.

This summary pertains to a Decision on a Bifurcated Jurisdictional Issue in an ICSID arbitration initiated by Afriland First Group SA (a Swiss company), Afriland First Bank SA (a Cameroonian company), and two Cameroonian individuals against the Democratic Republic of the Congo (DRC). The dispute arises from the Claimants' investment in Afriland First Bank Congo Démocratique SA (the Bank), a financial institution operating in the DRC since 2005. The proceedings were bifurcated to address the DRC's jurisdictional objections. The core of the dispute hinged on the validity and endurance of the DRC's consent to ICSID arbitration, which was granted through an Interministerial Order in 2005. This Order approved the Bank's investment project and extended to it the benefits of the "régime général" under the DRC's 2002 Investment Code, including investment guarantees and access to international arbitration as provided in Article 38 of the Code. The DRC argued that the Tribunal lacked jurisdiction for several reasons. Primarily, it contended that the 2005 Interministerial Order, which contained the state's offer to arbitrate, was a revocable administrative act. It asserted that this Order was, in fact, annulled by a 2010 Prime Ministerial Decree that cancelled all 'contra legem' tax and customs exemptions. According to the DRC, the Claimants only accepted the offer to arbitrate in 2023 by filing their Request for Arbitration, long after the offer had been withdrawn. Alternatively, the DRC argued that all benefits under the Order, including the arbitration clause, were time-limited and had expired by 2012 at the latest. Finally, the DRC challenged the standing of Afriland First Group SA, which became a shareholder in 2009, arguing it was not an original party to the 2005 Order and had not received state approval to benefit from its terms. The Claimants countered that the arbitration agreement was perfected and became irrevocable in 2005. They argued that, under Article 38 of the DRC's Investment Code, an investor's consent to ICSID arbitration is constituted by the submission of a "demande d'admission" (request for admission) to the investment regime. The Bank submitted such a request on February 3, 2005, thereby making its offer to arbitrate. The DRC accepted this offer and perfected the bilateral agreement when its ministries issued the Interministerial Order on July 18, 2005. At that point, under Article 25 of the ICSID Convention, consent became irrevocable and could not be unilaterally withdrawn by the DRC's subsequent 2010 Decree. The Claimants also maintained that the investment guarantees and dispute resolution provisions were distinct from the time-limited fiscal advantages and were not subject to expiry. Regarding Afriland First Group's standing, they argued the right to arbitrate was attached to the investment itself and extended to all shareholders, including subsequent ones, as per the broad definition of "investor" in the Code. The Tribunal, in its Decision, upheld its jurisdiction. It concurred with the Claimants' analysis of the consent mechanism. The Tribunal found that the Bank's 2005 "demande d'admission" constituted its written consent to ICSID arbitration, as explicitly contemplated by Article 38 of the Investment Code. The DRC's issuance of the Interministerial Order, incorporating Article 38 by reference, constituted its written acceptance, thereby locking in a binding and irrevocable arbitration agreement in July 2005. Consequently, the 2010 Decree was moot, as it could not retroactively nullify a perfected agreement protected by the ICSID Convention. The Tribunal also dismissed the DRC's argument on time limits, finding that the dispute resolution clause, as an investment guarantee, was not time-barred. On the final issue, the Tribunal declared that Afriland First Group SA had standing. It determined that the definition of "investor" in the Investment Code was broad enough to encompass subsequent shareholders, and that the right to arbitrate was tied to the shares themselves, transferring with them to new owners. The Tribunal thus rejected the DRC's jurisdictional objection and ordered the continuation of the proceedings.