International arbitration plays a significant role in the resolution of cross-border disputes involving the Republic of Guinea, particularly in sectors such as mining and energy, which are vital to the nation’s economy,[1] and which have attracted major international investors.
The mining sector in the Republic of Guinea revolves principally around bauxite, iron ore and gold mining:
- Amongst the principal bauxite mining investors and companies figure mining giants such as Société Minière de Boké, Compagnie des Bauxites de Guinée, and RUSAL, a major Russian aluminium producer.[2]
- In turn, iron ore mining concerns mainly the multi-billion initiative involving a consortium led by Rio Tinto, China’s Chalco, and other investors like Baowu Steel.[3] It includes infrastructure development, such as a 552-kilometer railway and a deep-water port.[4] The Simandou deposit is expected to supply 5% of global seaborne iron ore.[5]
- Finally, Guinea is a significant producer of gold, with major goldfields in Siguiri and Dinguiraye. Companies like AngloGold Ashanti and Nordgold operate in the country, making gold another critical export commodity.
The energy sector in the Republic of Guinea is characterized by significant potential, particularly in renewable energy, owing to its abundant water resources and substantial solar energy potential. Guinea is often called the “Water Tower of West Africa,”[6] and the government has prioritized expanding hydroelectric and solar energy infrastructure to diversify its energy mix, electrify rural areas, and reduce dependence on imported fuels. Amongst the biggest hydropower projects are the Kaleta and Souapiti dams. These projects were both financed and constructed by Chinese firms, such as the China Three Gorges Corporation and China International Water & Electric Corporation.[7]
With major industries like mining and energy heavily reliant on international partnerships, international arbitration provides a structured way to address contractual disputes.
International Arbitration in the Republic of Guinea: the OHADA Uniform Act on Arbitration
Guinea’s arbitration framework is principally governed by the OHADA Uniform Act on Arbitration, updated in 2017, which incorporates elements of the UNCITRAL Model Law and international arbitration best practices. It is divided into seven chapters and 36 articles:
- Chapter 1: Scope of Application (Article 1 to Article 4);
- Chapter 2: Constitution of the Arbitral Tribunal (Article 5 to Article 8);
- Chapter 3: Arbitral Proceedings (Article 8.1 to Article 18);
- Chapter 4: The Arbitral Award (Article 19 to Article 24);
- Chapter 5: Recourse Against the Arbitral Award (Article 25 to Article 29);
- Chapter 6: Recognition and Enforcement of Arbitral Awards (Article 30 to Article 34); and
- Chapter 7: Final Provisions (Article 35 and Article 36).
It applies to any arbitration when the seat of the arbitral tribunal is located in one of the Member States (Article 1). The arbitration may be based on “an arbitration agreement or on an instrument regarding an investment, in particular an investment code or a bilateral or multilateral investment treaty” (Article 3). The OHADA Uniform Act on Arbitration also stipulates that the arbitration agreement shall be regarded as independent from the main contract and shall “not be affected by the nullity of the contract” (Article 4). The arbitral tribunal “alone is competent to rule on its own jurisdiction, as well as on any issues concerning the existence or validity of the arbitration agreement.” (Article 11).
Article 5 of the OHADA Uniform Act on Arbitration specifies that the arbitral tribunal shall be composed of a sole arbitrator or three arbitrators. Absent the common agreement of the parties, the default rule is to appoint a sole arbitrator. Article 6 also provides that, in the event the parties agree to appoint two arbitrators “despite the provisions of Article 5”, the arbitral tribunal shall be completed “by a third arbitrator mutually chosen by the parties” or, absent any such agreement, by the appointed arbitrators or, ultimately, by the competent jurisdiction in the Member State. Each member of the arbitral tribunal is required to remain independent and impartial (Article 7). The arbitral tribunal shall treat the parties equally, allowing each party full opportunity to present its case (Article 9).
In the event the parties’ agreement contains an obligation to seek settlement of the dispute prior to any arbitration, the arbitrators are required, upon the request of one of the parties, to “examine if this condition has been met and as the case may be, shall mandate the completion of this preliminary phase.” (Article 8.1).
The OHADA Uniform Act on Arbitration imposes certain mandatory prerequisites that an arbitral award shall contain (Article 20):
- the first and last names of the arbitrators having rendered the award;
- its date;
- the seat of the arbitral tribunal;
- the last and first names and trade names of the parties, as well as the headquarters or registered office;
- as the case may be, the last and first names of counsel or any person having represented or assisted the parties; and
- the statement of the respective claims of the parties, their pleas and arguments, as well as the procedural history.
The arbitral award must also “state the reasons on which it is based.” (Article 20).
The arbitral award shall have the effect of res judicata (Article 23) and shall not be subject to “any opposition, or appeal on factual or legal grounds.” (Article 25). However, it may be subject to “an annulment action, which must be lodged before the competent jurisdiction in the Member State”. The parties may waive the annulment action against the award “provided it is not contrary to international public policy.” (Article 25).
An annulment action is permitted only in a handful of circumstances listed in Article 26:
- if the arbitral tribunal has ruled without an arbitration agreement or based on an agreement that is void or expired;
- if the arbitral tribunal was irregularly composed or the sole arbitrator was irregularly appointed;
- if the arbitral tribunal ruled without conforming to the mandate with which it has been entrusted;
- if the principle of due process has not been respected;
- if the arbitral award is contrary to international public policy; or
- if the award fails to state the reasons on which it is based.
International Arbitration in the Republic of Guinea: the Role of the Arbitration Chamber of Guinea
The Arbitration Chamber of Guinea, or la Chambre d’Arbitrage de Guinée or CAG, is a local initiative aimed at providing arbitration and alternative dispute resolution services within Guinea. It is primarily intended to support the resolution of commercial and civil disputes in the country, promoting arbitration as an efficient and business-friendly alternative to traditional litigation. The number of cases that have been administered is unclear.
Its arbitration rules (the “CAG Rules”) and its Costs Schedule were established in February 2016 by the Ministry of Justice of the Republic of Guinea. They are divided into eight chapters:
- Chapter I: General Provisions (Article 1 to Article 6);
- Chapter II: Introduction of Arbitration (Article 7 to Article 8);
- Chapter III: Constitution of Arbitral Tribunal (Article 9 to Article 14);
- Chapter IV: Mission of Arbitral Tribunal (Article 15 to Article 16);
- Chapter V: Procedure (Article 17 to Article 30);
- Chapter VI: Expedited Procedure (Article 31 and Article 32);
- Chapter VII: Post-Award Remedies (Article 33 to Article 37);
- Chapter VIII: Costs of Arbitration and Miscellaneous Provisions (Article 38 to Article 48).
According to Article 1, an arbitration organised under the CAG Rules shall be in compliance with the OHADA Uniform Act on Arbitration. In domestic arbitration, the applicable law shall be the law of the Republic of Guinea and the OHADA law (Article 24-1). In international arbitration, the applicable law shall be the law chosen by the parties. In the absence of such a choice, the arbitral tribunal shall determine the applicable law in accordance with rules it deems appropriate while taking into account the rules and customs of international commerce (Article 24.2).
Arbitration may be initiated under the CAG Rules only if agreed upon by the parties involved (Article 3).
The CAG Rules provide flexibility, allowing parties to choose a single arbitrator or a three-member panel. The parties may agree in their arbitration agreement to appoint a single arbitrator. If they cannot agree within 15 days, the CAG Committee will designate one (Article 10). If the arbitration agreement refers to a three-member tribunal, each party appoints one arbitrator, and the co-arbitrators then appoint the chair (Article 9).
The tribunal has six months to render the arbitral award, though this period can be extended by the CAG Committee if necessary (Article 26). The arbitral award must be reasoned (Article 27). The arbitral award becomes final once signed, and it is enforceable immediately (Article 28).
Post-award remedies are limited. The arbitral award cannot be subject to any opposition or appeal (Article 33). It can, however, be subject to an annulment request before the First President of the Court of Appeal of the seat of arbitration. The decision is susceptible to appeal before the Cour Commune de Justice et d’Arbitrage (Article 33). Annulment is strictly limited to the following grounds (Article 34):
- the arbitral tribunal has ruled without an arbitration agreement or a null and void or expired arbitration agreement;
- the arbitral tribunal was irregularly constituted;
- the arbitral exceeded its mission;
- due process was not respected;
- the arbitral tribunal breached the rule of international or national public order;
- the award is not motivated.
Investment Arbitration and the Republic of Guinea
The Republic of Guinea has been involved in several high-profile investment cases under the aegis of the International Centre for Settlement of Investment Disputes (ICSID), including:
- BSG Resources Limited v. Republic of Guinea (ICSID Case No. ARB/14/22). The tribunal dismissed BSGR’s claims as inadmissible due to corruption, upheld Guinea’s position, and ordered BSGR to bear 80% of the arbitration costs.
- Maritime International Nominees Establishment v. Republic of Guinea (ICSID Case No. ARB/84/4). MINE was awarded approximately USD 12.25 million in damages and interest, although Guinea sought partial annulment of the award.
- Getma International v. Guinea (ICSID Case No. ARB/11/29). The tribunal awarded damages of only USD 508,221 plus interest, but the case also highlighted issues regarding Guinea’s contractual obligations.
Conclusion
International arbitration in the Republic of Guinea has gained significance in recent years as the country seeks to establish a more predictable and efficient legal framework for resolving commercial disputes. The country has made significant progress in modernizing its domestic legal framework to better accommodate arbitration, with growing support for arbitration clauses in contracts, particularly in sectors like mining and infrastructure. Despite these advancements, challenges remain, particularly in terms of infrastructure, judicial capacity, and enforcement of arbitral awards. While the legal framework supports arbitration, practical issues, such as delays in local courts and a lack of trained arbitrators, can hinder the process.
[1] Guinea Economic Update 2024, World Bank publication, 19 September 2024; Guinea – Country Commercial Guide, Mining and Minerals, International Trade Administration, 24 April 2024.
[2] “Friguia Bauxite and Alumina Complex”, Rusal website.
[3] “Rio Tinto to launch $20bn Guinea project after 27-year delay”, Mining Technology, 8 January 2024; “Major mining project closes in Guinea”, Mining Focus, Africa, 8 August 2024.
[4] “Rio Tinto board gives go-ahead on Simandou iron ore project”, Mining.com, 21 February 2024.
[5] “World’s biggest mining project set to begin in Guinea Republic this year”, Business Insider Africa, 8 January 2024.
[6] “Broadening Access to Drinking Water in Guinea”, Rapport Annuel, Expertise France.
[7] “Guinea: China to build $2 bln hydropower dam”, MedaFrica, 16 September 2015; “Souapiti Hydropower Station”, NS Energy, 10 May 2021.