Recent ICSID jurisdictional decision reflects important trends in investment protection in Africa

The recent jurisdictional decision in the ICSID arbitration Afriland First Group SA et al. v. Democratic Republic of the Congo ("DRC") (ICSID Case No. ARB/23/38) reflects the important role of investment protections to continued economic development in Africa. The 16 July 2025 decision upholds jurisdiction over the claims presented by the claimants arising out of an Interministerial Order (Arrêté interministériel) adopted by the DRC's Ministers of Finance and Planning in 2005 to permit Afriland First Bank Congo Démocratique SA (the "Bank") and its shareholders to benefit from the protections afforded by the DRC's 2002 Investment Code (Loi n° 004 du 21 février 2002 portant code des investissements).

The decision is significant for several reasons. While most investment arbitrations proceed pursuant to investment protection treaties, a significant number of States, including in Africa, have investment codes that provide a basis to submit disputes to ICSID arbitration. The Afriland arbitration is based on a ministerial order that refers to the protections contained in the DRC's investment code, demonstrating the continuing importance of such statutory provisions.

The decision is significant also in that it involves claims arising from an investment in the DRC's banking sector. Investments in the financial services sector, and banking in particular, are critical to economic development but remain vulnerable to State action that may undermine an investment. The Afriland case is an example of a dispute that has arisen from acts taken by the Central Bank and other State actors that progressively dispossessed the shareholders of the Bank of their investment.

Finally, the fact that the claimant investors are African or owned by Africans reflects a notable development in intra-African cross border investment and the role of investment protections, including ICSID arbitration, to Africa's economic development.

The jurisdictional victory for the Afriland claimants highlights White & Case's experience helping clients navigate the full range of investment disputes. The case now proceeds to the merits.

The White & Case team representing the Afriland claimants included partners Abby Cohen Smutny and Darryl S. Lew (both in Washington, DC), Sven Volkmer (New York), as well as associates Francis Lévesque and Katherine Krudys (both in Washington, DC).

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