Afriland First Group SA and others v. Democratic Republic of the Congo

At a glance

Parties

Afriland First Group SA (Switzerland), Afriland First Bank SA (Cameroon), Mr. Joseph Toubi and Dr. Paul Kammogne Fokam (Cameroon) v. the Democratic Republic of the Congo

Case no.

ICSID Case No. ARB/23/38

Forum and rules

ICSID Convention arbitration; ICSID Arbitration Rules 2022; place of proceedings Washington D.C.

Treaty

DRC Investment Code (Law No. 004/2002 of 21 February 2002), Article 38, incorporated by Article 10 of Interministerial Order No. 092/CAB/MIN/PLAN/2005 and No. 111 CAB/MIN/FIN/2005 of 18 July 2005

Tribunal

Prof. Juan Fernández-Armesto (President), Mr. Henri C. Alvarez KC, Mr. Alexis Mourre

Sector

Banking and financial services

Outcome

Decision on the Bifurcated Issue (16 July 2025): the DRC's jurisdictional objection was rejected unanimously, and Afriland First Group was held by majority to have standing. The case proceeds to the merits, and costs were postponed.

The dispute

The claimants are shareholders of Afriland First Bank Congo Démocratique SA (the Bank), which has operated in the DRC since 2005. The DRC Investment Code excludes the banking sector. In 2005, however, the Ministers of Planning and Finance issued an Interministerial Order that admitted the Bank's project to the Code's general regime. The Order granted tax and customs advantages and investment guarantees, and it referred disputes to Article 38 of the Code, which offers ICSID or ICC arbitration. The claimants allege unlawful measures, most of them between June 2021 and January 2023, and invoke the Order, the Investment Code, the African Charter on Human and Peoples' Rights and customary international law. In the bifurcated phase the DRC argued that the State's offer to arbitrate had been annulled by Prime Minister's Decree No. 10/16 of 22 April 2010, or had expired in 2012, before the claimants accepted it in their 2023 Request for Arbitration. It also argued that Afriland First Group, which became a shareholder only in 2009, had never consented to arbitration.

Key holdings

1. Consent to ICSID arbitration was perfected in 2005. Under the second paragraph of Article 38 of the Investment Code, the investor's consent is constituted by its demande d'admission. By filing its request for admission to the Régime Général on 3 February 2005, the Bank consented on its own behalf and on behalf of its shareholders. The DRC's consent was perfected when the Interministerial Order was issued on 18 July 2005. ¶¶ 192, 208–209, 222
2. The scope and effects of the 2010 Decree are irrelevant. Once consent was perfected, Article 25(1) of the ICSID Convention bars its unilateral withdrawal, including by annulling the administrative act or repealing the legislation that expressed it. ¶¶ 225–230
3. The guarantees and the access to arbitration did not expire in 2012. Only the tax advantages in Article 4(b) of the Order carry time limits. Articles 7 and 10 have none, and a time limitation cannot be extended to provisions that are silent (exceptio est strictae interpretationis). ¶¶ 234–238
4. The request for admission did not need to mention ICSID or choose between ICSID and ICC. Article 38 requires nothing beyond filing the demande d'admission, and that route opens only ICSID arbitration. The 2023 board resolutions and the Request for Arbitration consented only to the submission of the specific dispute. ¶¶ 241–248, 257–259
5. "Investisseur" in Article 38, read with the definition in Article 2 of the Investment Code, covers both the shareholders at the time of the Order and later shareholders. Afriland First Group, which acquired 27.8% in 2009 and held 77.066% by 2021, therefore has standing. This finding was adopted by majority. ¶¶ 288–298, 329
6. Article 40 of the 2012 Decree does not apply to the 2009 share transfer ratione temporis, and in any case it does not fit an intra-group reorganisation. No approval by ANAPI or any other agency was required for a new shareholder to rely on Article 38. The tribunals in Amco Asia and SPP reached consistent results. ¶¶ 301–307, 311–314, 318–327
7. Operative part: the bifurcated objection is rejected, Afriland First Group SA has standing, the proceedings continue for all four claimants, and all other decisions, including on costs, are postponed. Decision 2 (standing) was adopted by majority; the others were unanimous. ¶¶ 328–329

Procedural history

1. 8 August 2023Request for Arbitration received by ICSID; supplemented by letter of 16 August 2023.
2. 28 August 2023ICSID Secretary-General registers the Request.
3. 26 January 2024Tribunal constituted.
4. 11 April 2024Procedural Order No. 1 issued: 2022 ICSID Arbitration Rules, English and French as procedural languages, Washington D.C. as place of proceedings.
5. 9 May 2024The DRC requests bifurcation of one jurisdictional objection. On 24 May 2024 the parties agree to bifurcate.
6. 19–20 November 2024Remote hearing on the bifurcated issue.
7. 22 January 2025Simultaneous post-hearing briefs.
8. 16 July 2025Decision on the Bifurcated Issue: objection rejected, Afriland First Group SA has standing (by majority), proceedings continue to the merits.

Tribunal, counsel and experts

Decided by

• Juan Fernández-Armesto President — appointed by the parties jointly
• Henri C. Alvarez Co-arbitrator — appointed by the claimant
• Alexis Mourre Co-arbitrator — appointed by the respondent

For the claimant

White & Case LLP

For the respondent

Hogan Lovells · Mayifuila Esquire

Experts

Jean-Michel Kumbu (respondent) · Patrick Goffaux (claimant)

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Keywords

• consent to ICSID arbitration
• investment law
• DRC Investment Code 2002
• Interministerial Order
• demande d'admission
• irrevocability of consent
• Article 25 ICSID Convention
• bifurcation
• banking
• tax and customs exemptions
• 2010 Decree
• expiry of benefits
• shareholder standing
• subsequent shareholder
• ANAPI
• Société Resort
• Amco Asia
• SPP v. Egypt

Summary generated with AI from the published documents — refer to the award for the authoritative text.