Burkina Faso signed the Convention of the International Centre for Settlement of Investment Disputes (ICSID) on 16 September 1964, ratified it on 29 August 1966, and the Convention entered into force for the State on 14 October 1966.

The State has not designated any subdivisions or constituent agencies for the purpose of receiving notifications of its consent to ICSID’s jurisdiction.

No notifications have been made by Burkina Faso under Articles 25(3) or 25(4) of the Convention.

Footnote(s):

1.  ICSID Database: “List of Contracting States and Other Signatories to the Convention”, available at: https://icsid.worldbank.org/about/member-states/database-of-member-states/member-state-details?state=ST22 ;

Burkina Faso acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) on 23 March 1987.

The United Nations treaty status page for Burkina Faso records no declarations or reservations; when such instruments exist, they are ordinarily reproduced or annotated on that page.

Footnote(s):

1. Contracting States. New York Arbitration Agreement. https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1731&opac_view=6&hl=fr-BF#

Burkina Faso has promulgated an officially published model bilateral investment treaty. The State employs standard model texts in its treaty practice; the 2012 and 2023 iterations mark a clear doctrinal shift.

The earlier, traditional Burkinabe model adopts a broad asset‑based definition of “investment”, encompassing tangible assets, intellectual property rights, concessions and financial claims. The 2023 model, reflecting trends under the African Continental Free Trade Area, narrows that approach by inserting protective language safeguarding the State’s regulatory space in areas such as health, the environment and national security.

Notably, the 2023 text removes the expansive formulations that previously enabled investors to treat ordinary legislative or regulatory changes as breaches of legitimate expectations.

Footnote(s):

1. https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2828/download
2. https://investmentpolicy.unctad.org/international-investment-agreements/countries/31/burkina-faso

The following is a list of all bilateral investment treaties currently in force (with signing/entry into force dates):

• Burkina Faso – Morocco (08/02/2007 – 05/03/2016)
• Burkina Faso – Guinea (25/03/2003 – 26/08/2004)
• Burkina Faso – Canada (20/04/2015 – 11/10/2017)
• Burkina Faso – Benin (18/05/2001 – 18/08/2003)
• Burkina Faso – Comores (18/05/2001 – 18/08/2003)
• Burkina Faso – Ghana (18/05/2001 – 18/08/2003)
• Burkina Faso – Mauritania (18/05/2001 – 18/08/2003)
• Burkina Faso – Tunisia (07/01/1993 – 15/10/2003)
• Burkina Faso – South Korea (26/10/2004 – 14/04/2010)
• Burkina Faso – Belgian-Luxembourg Economic Union (18/05/2001 – 13/01/2004)
• Burkina Faso – Taiwan (09/10/1998 – 18/08/2003)
• Burkina Faso – Malaysia (23/04/1998 – 18/08/2003)
• Burkina Faso – Germany (22/10/1996 – 21/11/2009)
• Burkina Faso – Switzerland (06/05/1969 – 15/09/1969)

BITs/BITs signed but not in force

• Burkina Faso – Chad (18/05/2001)
• Burkina Faso – Turkey (11/04/2019)
• Burkina Faso – Singapore (27/08/2014)

BIT/TBI Terminated

• Burkina Faso – Netherlands (10/11/2000) entered into force 01/01/2004. Extinguished following a denunciation by Burkina Faso (01/01/2019)

Treaties with Investment Provisions (TIPs) in force

• Agreement On Trade-Related Aspects Of Intellectual Property Rights 1994
• Agreement On Trade-Related Investment Measures 1994
• Islamic Corporation for Investment Credit Insurance 1992
• MIGA Convention 1985
• New York Convention 1958
•  ICSID Convention 1966
•  Fifth GATS Protocol 1997
• Fourth GATS Protocol 1997
• GATS (Marrakesh Agreement establishing the WTO) 1994

To what extent do such treaties adopt or omit part of the text of your State’s ILO Model, or do they restrict or expand the rights of investors?

Burkina Faso’s bilateral investment treaties routinely include the following standard protection clauses:

• Non‑discrimination: guarantees of national treatment and most‑favored‑nation treatment.
• Protection against unlawful expropriation: safeguards investors from uncompensated or unjustified takings.
• Free transfer of capital: assurances permitting the movement of funds related to investments.
• International arbitration for dispute resolution: access to arbitration fora, frequently including ICSID.

In particular:

(a) Has your State exercised a right of termination or has indicated an intention to do so? If so, on what basis (e.g. the impact of the Achmea decisions, political opposition to the Energy Charter Treaty or other policy changes)?

On 1 January 2019, Burkina Faso formally denounced the draft Bilateral Investment Protection and Cooperation Agreement with the Kingdom of the Netherlands. The measure formed part of a deliberate recalibration of the State’s bilateral investment policy, the draft having been judged unacceptable by the authorities because it contained an investor‑state dispute settlement (ISDS) mechanism.

There is no public evidence that Burkina Faso has undertaken a broader programme of treaty denunciations motivated by the Achmea judgment or by controversies surrounding the Energy Charter Treaty. The Achmea decision pertains to arbitration clauses in agreements between EU Member States and is principally relevant within the intra‑EU legal order. Burkina Faso is not a signatory to the Energy Charter Treaty. Available treaty databases and public records do not disclose a pattern of denunciations by Burkina Faso linked to those EU‑centred developments

b) Do any of the treaties reflect (i) changes in environmental and energy policies, (ii) the advent of emerging technologies, (iii) the regulation of investments obtained through corruption, and (iv) the transparency of States’ investor procedures (whether due to the application of the Mauritius Convention or otherwise)?

• Recent treaties and Burkina Faso’s interpretative practice reflect contemporary global priorities, with the 2015 BIT with Canada serving as a prominent example.
• The preamble frames investment as a means of sustainable development that must not undermine the livelihoods or opportunities of future generations and expressly recognises: cooperation between investors and governments; commitments under the United Nations Convention against Corruption; adherence to internationally recognised corporate social responsibility standards; and each Party’s right to adopt measures for health, safety, the environment and public welfare.
• The agreement imposes concrete obligations to embed these principles in the investment relationship:
• Article 15 — Health, Safety and Environmental Measures
• It affirms that attracting investment should not be achieved by weakening or relaxing national health, safety or environmental standards.
• Article 16 — Corporate Social Responsibility
• Each Party encourages enterprises to incorporate internationally recognized corporate responsibility standards into their policies, covering labor, environmental, human rights and anti‑corruption matters.
• Public Policy Exceptions
• The treaty provides broad exceptions to protect public health, the environment and other legitimate public policy objectives, and includes an essential security exception that may be invoked on a self‑declaratory basis.

(c) Does your jurisdiction publish any official guidelines, notes verbales or diplomatic notes concerning the interpretation of treaty provisions and other matters arising from the treaties?

There is no official publication of Burkina Faso’s diplomatic guidelines on the interpretation of its investment treaties. In the absence of such a formal statement, interpretation follows standard international practice.

Footnotes

1. https://investmentpolicy.unctad.org/international-investment-agreements/countries/31/burkina-faso
2. https://www.investburkina.bf/services/traites-bilateraux-d-investissement
3.  https://www.bothends.org/en/Whats-new/News/NGOs-send-letter-to-Minister-Kaag-to-call-for-termination-of-BIT-with-Burkina-Faso/?utm_source=chatgpt.com
4. https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5589/download

The principal domestic reference texts are the Investment Code of Burkina Faso (Law No. 038‑2018/AN) and Law No. 023‑2013/AN, the Investment Orientation Law (Loi d’Orientation de l’Investissement).

Burkina Faso is a member of the Organization for the Harmonization of Business Law in Africa (OHADA). Where the arbitral seat is in an OHADA member State, the applicable arbitration statute is the OHADA Uniform Act on the Law of Arbitration, as revised and adopted in Conakry on 23 November 2017 and published in the OHADA Special Official Journal on 15 December 2017.

If so:

(a) Please list any formal criteria imposed by such legislation or instrument (if any) regarding the admission and divestment of foreign investment;

Investors must obtain prior authorization from the Minister in charge of Industry (Article 7 of the Investment Code). There are no formal, discriminatory restrictions specifically targeting foreign investors.

Admission to the Code’s preferential regimes is subject to a stringent approval process. Eligible investments must be productive, meaning they contribute to the creation of local added value, the training of a national workforce and the protection of the environment.

• Eligibility criteria: Projects are classified into three regimes (A, B, C) according to investment size and jobs created. For example, Regime C requires a minimum investment of 2 billion CFA francs and the creation of at least 40 permanent jobs. An application for approval must be submitted to the Ministry of Industry, which has three months to render a decision.
• Divestment: The Code guarantees the freedom to liquidate an investment. Capital originating abroad may be repatriated freely, after settlement of tax liabilities and in compliance with the exchange regulations of the CFA zone (WAEMU).

(b) Please indicate what substantive rights and protections foreign investors enjoy under this legislation or instrument;

The State guarantees in the Investment Code that all investors, irrespective of nationality and subject to the laws and regulations in force in Burkina Faso, enjoy the following rights:

• The right to engage in any productive, service or commercial activity and the freedom to invest.
• The right to recruit locally and internationally, subject to local‑content requirements and to the hiring and dismissal rules set out in the Labor Code.
• The right to freely dispose of one’s property.
• The free choice of suppliers and service providers.
• Commercial rights necessary to carry on the enterprise.
• The free movement within Burkina Faso of raw materials, consumables, finished and semi‑finished products and spare parts.
• Free access to ownership and to rights attached to land, buildings, plant and equipment, movable property, securities, patents and other intellectual property.
• The freedom to repatriate foreign capital and profits, as well as remuneration and savings of expatriate personnel.
• Access to the foreign‑exchange market in accordance with the rules of the West African Monetary Union (WAMU).
• Free access to sources of raw materials.
• The right to create, administer and manage one’s enterprise freely.
• Equal treatment in the exercise of an activity in accordance with the principles and requirements of the Competition Act.
• Any other rights provided by the legal texts applicable to investments.

(c) Please indicate what remedies (if any) a foreign investor has against the State of origin with respect to its rights under that law or instrument;

The State of Burkina Faso guarantees investors the right to a fair hearing in any dispute arising from the application of the Investment Code.

Where no amicable settlement is reached, any dispute or litigation between an investor and the Burkinabe State concerning the application of this Code shall be resolved by the national courts or by arbitration. (Article 38 of the Investment Code)

(d) Does this legislation regulate the use of third-party financing and other non-conventional means of financing?

Current Burkinabe legislation does not regulate third‑party funding. While this practice has appeared in recent disputes involving mining companies, notably in the Sarama case, where the investor resorted to external financing, it remains governed by the rules of the competent arbitral institution rather than by national law.

Footnotes

1. Code des investissements du Burkina Faso : https://investmentpolicy.unctad.org/investment-laws/laws/276/burkina-faso-burkina-faso-investment-code-2018-?utm_source=chatgpt.com ;
2. https://investburkina.com/2022_09_21_REGROUPEMENT%20DES%20TEXTES%20VF/1%20REGLEMENTATION%20GENERALE/c%20INVESTISSEMENTS/LOIS/Loi%20N%C2%B0023-2013AN%20du%2030%20mai%202013%20portant%20loi%20d%E2%80%99orientation%20de%20l%E2%80%99investissement%20au%20Burkina%20Faso.pdf?utm_source=chatgpt.com
3. OHADA Uniform Act on Arbitration Law (revised, adopted in Conakry on November 23, 2017 and published in the special OHADA Official Journal of December 15, 2017);

Burkina Faso has been a sovereign respondent in several ICSID proceedings, notably SIREXM v. Burkina Faso (1997–2000) and Sarama Resources Ltd v. Burkina Faso (ICSID Case No. ARB/24/51).

In SIREXM v. Burkina Faso (1997–2000), public summaries indicate that Burkina Faso obtained an award annulling the contested contract. The tribunal declared the contract null because a Burkinabe civil servant held an interest in SIREXM’s capital, a fact the tribunal characterized as a fraudulent device; it further found the contract contrary to public policy. The tribunal ordered restitution of the parties’ contributions, adopting a restorative remedy.

In practice, Burkina Faso’s procedural approach in such disputes resembles that of many States:

• Active participation: Burkina Faso does not adopt an “empty chair” posture; it is represented by international law firms supported by national counsel and typically calls upon national experts, including academics and subject‑matter specialists.
• Objections to jurisdiction: The State routinely invokes the qualification “in accordance with national laws” to contest treaty protection where initial administrative irregularities are alleged.
• Respect for awards: Historically, Burkina Faso has sought to negotiate the consequences of awards rather than to disregard them, although a political climate emphasizing sovereignty and state control over natural resources could affect the State’s posture toward future monetary awards.

Footnotes

1.  https://icsid.worldbank.org/sites/default/files/parties_publications/C6106/2020.01.20%20Claimants_%20Rejoinder/Legal%20Authorities/CL-0254.pdf ;
2. https://www.italaw.com/sites/default/files/case-documents/italaw6316.pdf ;
3. https://www.italaw.com/cases/11663 ;

From a legal standpoint, the OHADA Uniform Act on Arbitration governs arbitrations seated in an OHADA member State; Burkina Faso has been an OHADA member since 18 September 1995, and the Uniform Act expressly permits arbitration founded on an “investment instrument” (Article 3).

From a factual standpoint, however, no readily verifiable public instance has been identified of a non‑ICSID investment arbitration either involving Burkina Faso as a party or with its seat located in Burkina Faso.

Footnote

1. OHADA Uniform Act on the Law of Arbitration (revised, adopted in Conakry on 23 November 2017 and published in the special OHADA Official Journal of 15 December 2017), Article 3.

Under the OHADA Uniform Act on Arbitration (applicable in Burkina Faso), an arbitral tribunal may order provisional or protective measures; however, the Act expressly excludes precautionary or conservatory seizures and judicial liens, which remain within the exclusive competence of the state courts (Article 14). The scheme contemplates that the arbitrator may safeguard the integrity and effectiveness of the arbitral process (preservation of evidence, maintenance of the status quo, and the like), while coercive measures affecting property rights are more appropriately exercised by a state judge.

Although judicial assistance to arbitral tribunals is legally available across OHADA member States, there is no readily identifiable public jurisprudence applying conservatory measures in investor–State disputes. Likewise, state‑court motions to compel arbitration are effectively unavailable where the State is a party, since the State does not submit to ordinary legal proceedings except in matters falling within administrative law.

Footnote

1. the OHADA Uniform Act on the Law of Arbitration (revised, adopted in Conakry on November 23, 2017 and published in the special OHADA Official Journal of December 15, 2017).

In accordance with Articles 5 and 6 of the OHADA Uniform Act on Arbitration, where the parties have not agreed on the number of arbitrators, a sole arbitrator is appointed by default. Where the parties have agreed on a three‑member tribunal, each party appoints one arbitrator and the two party‑appointed arbitrators select the presiding arbitrator; should a party fail to appoint or the two arbitrators fail to agree on the presiding arbitrator, the competent court of the State Party intervenes to make the appointment.

The Investment Code of Burkina Faso contains parallel provisions governing investment‑treaty arbitrations:

• Appointment procedure: Each party appoints one arbitrator and those two arbitrators appoint the presiding arbitrator.
• Court intervention: If one party does not appoint its arbitrator within sixty days of notification by the other party, or if the two arbitrators do not agree on the third arbitrator within thirty days of the second arbitrator’s appointment, the appointment of the second or third arbitrator may be made, at the initiative of the more diligent party, by the Council of State (the highest administrative court) or by the competent national court of Burkina Faso.
• Conduct and effect of the award: Arbitrators control the conduct of the proceedings and may decide ex aequo et bono; the arbitral award is final and enforceable without the need for an exequatur.

When foreign interests are involved, two fora are available: recourse to the International Centre for Settlement of Investment Disputes (ICSID) or to the Common Court of Justice and Arbitration (CCJA) in Abidjan.

A request for arbitration filed by either party automatically suspends any previously initiated litigation. (Article 39 of the Investment Code)

Footnote

1.  the OHADA Uniform Act on the Law of Arbitration (revised, adopted in Conakry on 23 November 2017 and published in the special OHADA Official Journal of 15 December 2017) – Articles 5 and 6;
2. Code des investissements du Burkina Faso : https://investmentpolicy.unctad.org/investment-laws/laws/276/burkina-faso-burkina-faso-investment-code-2018-?utm_source=chatgpt.com

For a non‑ICSID award rendered in an OHADA State (and thus potentially in Burkina Faso where the seat is located), remedies and annulment procedures are governed by the OHADA Uniform Act on the Law of Arbitration: annulment is available on a limited set of procedural and structural grounds and where the award is contrary to international public policy.

The Uniform Act enumerates the bases for annulment, including: absence, nullity or expiry of the arbitration agreement; irregular composition of the tribunal; the tribunal’s excess of mandate (for example, deciding matters outside the terms of reference); violation of the parties’ right to be heard; the award’s incompatibility with international public policy; and failure to state reasons for the award (Article 26 of the Uniform Act).

There is no accessible corpus of Burkinabe decisions (nor CCJA decisions concerning Burkinabe cases) that illustrates how these annulment mechanisms have been applied in investor–State arbitrations. Nevertheless, the Uniform Act establishes a strict remedial framework and provides, as a last resort, review by the OHADA Common Court of Justice and Arbitration (CCJA) through formal appeals against arbitral awards rendered within member States.

Footnote

1. OHADA Uniform Act on the Law of Arbitration (revised, adopted in Conakry on 23 November 2017 and published in the special OHADA Official Journal of 15 December 2017) – Article 26

For an ICSID award, challenges do not proceed by way of domestic setting‑aside; the applicable remedy is annulment under the Convention’s internal procedure. The classic grounds for annulment under Article 52(1) include irregular constitution of the tribunal, manifest excess of powers, corruption of a tribunal member, a serious breach of a fundamental rule of procedure, and failure to state reasons.

Annulment proceedings are heard by ad hoc committees constituted under ICSID; national courts do not set aside ICSID awards. The role of domestic courts is largely confined to recognition and enforcement, subject to the limits imposed by the ICSID Convention and by applicable domestic rules on execution and state immunity.

Footnotes

1. https://icsid.worldbank.org/fr/actualites-et-evenements/communiques/le-cirdi-publie-une-note-dinformation-mise-jour-relative-annulation ;
2. https://icsid.worldbank.org/resources/publications/background-papers-annulment ;
3. https://icsid.worldbank.org/sites/default/files/publications/Annex_two.pdf.

For immunity from jurisdiction, the Uniform Act of Arbitration expressly recognizes, in accordance with Article 2, that States and other legal persons governed by public law may be parties to an arbitration and may not invoke their own law to challenge arbitrability on grounds of In accordance with Article 2 of the OHADA Uniform Act on Arbitration, States and other public‑law entities may be parties to arbitration and may not invoke their domestic law to contest arbitrability on the basis of sovereign immunity. Immunity from execution, however, remains the prevailing rule for States. The OHADA Uniform Act on the Organization of Simplified Recovery Procedures and Enforcement Procedures (AUPSRVE), revised on 17 October 2023, clarifies this regime. Article 30 establishes the principle that assets of legal persons governed by public law are immune from seizure. The principal innovation appears in Article 30‑1:

Budgeted debt: Where an award becomes final against the State, the creditor may obtain a payment order; failing voluntary payment, the public accountant is required to effect payment from appropriations allocated in the budget for the current financial year.

Seizure of private State property: Jurisprudence of the CCJA and Burkinabe courts permits attachment of assets of public enterprises when those entities engage in purely commercial activities, and the assets are not dedicated to a sovereign public‑service mission.

Footnotes

1. the OHADA Uniform Act on the Law of Arbitration (revised, adopted in Conakry on 23 November 2017 and published in the special OHADA Official Journal of 15 December 2017) – Article 2;
2. ICSID CONVENTION AND RULES – ICSID/15/Rev. 1 January 2003; Article 53 et seq.;
3. the revised Uniform Act on Simplified Recovery Procedures and Enforcement Procedures (AUPSRVE) of 17 October 2023; Article 30.

The margin of challenge before the national courts for ICSID awards is very limited:

Principle: “quasi‑automatic” recognition and enforcement with no additional review by national courts.

Given that ICSID awards are binding on the parties and are “not subject to appeal” (ICSID Convention, Art. 53), Burkina Faso recognizes such awards as binding and ensures the performance of its pecuniary obligations “as if it were a final judgment” as prescribed in Article 54.

With respect to immunity from execution, Article 55 provides that nothing in Article 54 derogates from domestic rules on immunity from execution. Thus, even after recognition, seizure or sale measures may be challenged in Burkina Faso on the basis of the immunity applicable to State property and certain public entities.

There are no publicly available notable examples showing how these grounds have been applied in practice in Burkina Faso.

Footnotes:

1. Convention CIRDI (art. 52(5), 53–55) ;
2. https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/new-york-convention-e.pdf;
3. https://treaties.un.org/pages/viewdetails.aspx?chapter=22&clang=_en&mtdsg_no=xxii-1&src=treaty;

For investment treaty awards rendered outside ICSID (UNCITRAL, ICC, etc.), recognition and enforcement in Burkina Faso are analyzed as the enforcement of a classic arbitral award:

(a) OHADA Framework (Uniform Act on the Law of Arbitration – 23/11/2017

• The award is subject to enforcement only by virtue of a decision of exequatur (Art. 30).
• Exequatur may be refused only if the award is manifestly contrary to the international public policy of the States Parties (Art. 31).
• The decision granting the exequatur is not subject to appeal; the refusal of enforcement may be appealed to the Common Court of Justice and Arbitration (CCJA) (Art. 32).
• Awards rendered “on the basis of different rules” (i.e., outside OHADA) are recognized and enforced in accordance with applicable international conventions and, failing that, under the same conditions (Art. 34).

(b) Role of the New York Convention (1958)

• Burkina Faso is a State Party to the New York Convention. For a foreign award, the grounds for refusal to recognize or enforce are those listed in Article V (e.g., invalidity of the arbitration agreement; violation of the adversarial principle; award beyond the scope of the submission; irregularity of composition or procedure; award not binding or annulled/suspended at the seat; non‑arbitrability; public policy).
• Article VI allows the judge to stay enforcement proceedings where annulment or suspension of the award is sought before the competent authority of the country where, or under whose law, the award was made.

Footnotes:

1. OHADA Uniform Act on Arbitration (Articles 30–34);
   – New York Convention (1958) (arts. V–VI);

In Burkina Faso, enforcement of awards against State property and public entities depends primarily on (i) the State’s immunity from execution and (ii) the legal qualification of the debtor (State, local authority, public establishment, state‑owned company, etc.).

a) ICSID awards

• Recognition and enforcement framework: ICSID awards are binding and recognition under the Convention is mandatory (Article 54). Article 55 of the ICSID Convention clarifies that nothing in Article 54 derogates from domestic rules on immunity from execution; therefore enforcement (execution) of an ICSID award in Burkina Faso remains subject to the domestic law on immunity.
• Practical consequence: As a result, the State (or a public entity) may lawfully invoke immunity from execution to challenge or resist seizure/sale measures directed at assets that are protected under domestic or OHADA rules.

b) Non‑ICSID awards and OHADA enforcement remedies

• Exequatur under OHADA: For non‑ICSID awards seated in an OHADA State, enforcement follows the OHADA framework. An award is enforced by exequatur under the OHADA Uniform Act on Arbitration; refusal of enforcement is limited (notably where the award is manifestly contrary to international public policy).
• Immunity from execution under the revised AUPSRVE: The revised OHADA Acte uniforme portant organisation des procédures simplifiées de recouvrement et des voies d’exécution (AUPSRVE) (adopted 17 October 2023; in force 16 February 2024) expressly addresses immunity from execution. Article 30 confirms that enforcement and conservatory measures do not apply to persons who benefit from immunity from execution, and the revised text narrows the class of beneficiaries to persons morales de droit public (for example the State, territorial collectivities and public establishments), while clarifying the treatment of other entities.
• Compensation and budgetary mechanism: The revised AUPSRVE introduces mechanisms (including budgetary inscription/compensation features reflected in Article 30‑1 and related provisions) by which certain, liquid and payable debts of immune public entities may be extinguished or satisfied through set‑off or by payment from budget appropriations, subject to public‑accounting rules. In practice, this is one of the principal routes by which creditors obtain payment of awards against otherwise “insaisissable” public debt.
• Jurisprudential trend limiting immunity for commercial entities: OHADA jurisprudence (and subsequent doctrinal commentary) has moved toward restricting immunity from execution to entities exercising sovereign or public‑authority functions. The CCJA’s case law (illustrated by decisions such as Mbulu Museso v. Société des Grands Hôtels du Congo, CCJA 2018) and later CCJA rulings have clarified that state‑owned companies constituted under private law (including semi‑public companies) may not automatically enjoy immunity where they act as ordinary commercial operators (acta iure gestionis). Consequently, assets of such companies may be subject to attachment when the activity in question is commercial rather than sovereign.
• Application to Burkina Faso: Under this framework, Burkinabe state‑owned enterprises (for example SONABEL or ONEA) could be exposed to enforcement measures if a competent judge finds that the disputed activity is commercial and the assets are not dedicated to a sovereign public‑service mission; conversely, treasury assets and property assigned to sovereign public functions remain protected by immunity and cannot be seized by ordinary enforcement measures.

Footnote:

1. Convention CIRDI (art. 54–55) ;
2. OHADA press release on the entry into force of the revised AUPSRVE (16/02/2024); recent doctrine on the article. 30 AUPSRVE (immunities) – https://www.ohada.com/actualite/7010/publication-au-journal-officiel-de-lohada-de-lacte-uniforme-du-17-octobre-2023-portant-organisation-des-procedures-simplifiees-de-recouvrement-et-des-voies-dexecution.html;
3. Mouhamadou Abdoulaye DIENG, “Can a semi-public company be subject to seizure? The contribution of the CCJA judgment n°103/2018 of 26 April 2018, Mbulu Museso v. Société des Grands Hôtels du Congo on immunity from execution in OHADA law”, p. 9-10

In Burkina Faso, Mali and Niger’s announced withdrawal from ECOWAS and the creation of the Alliance of Sahel States (AES) have affected how ISDS is perceived in the region; there is a political trend in those governments toward greater independence from institutions perceived as aligned with Western interests.

This political shift could lead to a preference for renegotiating dispute‑resolution clauses in extractive‑sector contracts to favor African fora or regional centres (for example the CCJA in Abidjan or newly promoted regional mechanisms), although concrete, widespread contract‑level renegotiations remain limited and vary by sector and counterparty.

Projects and partners incorporated in jurisdictions with active BITs may be relatively less attractive for some host authorities when projects are politically sensitive, but the commercial calculus remains project‑specific, and many investors continue to rely on BIT protections.

There is an observable increase in political and public challenges to the legitimacy of international tribunals where awards or proceedings are seen to conflict with measures taken for national security or sovereign management of natural resources; such challenges are part political discourse and part legal strategy.

The mining sector and related activities (logistics, explosives, services) are a principal source of investment disputes in Burkina Faso and elsewhere in the Sahel; investor–State claims in the gold sector have been particularly prominent in recent years.

Claims and claimed quantum in recent high‑profile cases have increased in absolute terms in some disputes; for example, Sarama Resources’ damages claim in its ICSID arbitration was reported to have risen from an earlier figure of about A$180 million (roughly US$117 million at the time) to a US$242 million claim in filings made in 2025.

This escalation in claimed damages has contributed to civil‑society concern in some countries, where activists and commentators call for a re‑examination or termination of BITs perceived as constraining states’ regulatory space and exposing public finances to large awards.

Separately, Burkina Faso is a signatory to the AfCFTA process and the AfCFTA Investment Protocol (text publicly available) advances a continental approach that seeks to balance investor protection with the State’s right to regulate for public‑interest objectives (health, environment, security); the Protocol also contemplates harmonization of investment obligations among African states and may offer an alternative framework to traditional bilateral BITs.

Footnotes

1.  https://www.afrik.com/la-cedeao-officialise-le-retrait-des-pays-de-l-aes-de-son-organisation#google_vignette;
2. https://theconversation.com/retrait-du-burkina-faso-du-mali-et-du-niger-de-la-cedeao-decryptage-des-enjeux-securitaires-222619 ;
3. https://www.informateur.ci/echos-dafrique/litige-sarama-resources-reclame-242-millions-de-dollars-de-dedommagement-au-burkina/ ;
4. https://www.africa-press.net/burkina-faso/economie/zone-de-libre-echange-continentale-africaine-le-burkina-faso-doit-mener-des-reformes-seydou-ilboudo-dg-du-commerce ;

Several developments are influencing arbitration strategy in Burkina Faso, including European case law, the growth of third‑party funding, and evolving regional institutional dynamics.

• Third‑party funding: Third‑party funding is an established feature of some recent investor–State disputes involving Burkina Faso. Reports indicate that Sarama Resources obtained external financing (reported in company filings and press coverage) to support its arbitration; the financing has been described as non‑recourse in market reports. Such funding enables claimants to pursue large claims that they might not otherwise be able to finance.
• Arbitrator protections under OHADA: The OHADA framework provides certain privileges and protections for officials and judicial actors connected with OHADA institutions. In practice, arbitrators appointed by or acting under the aegis of OHADA organs (including the CCJA) benefit from procedural safeguards intended to protect their independence while performing official functions; the precise scope of diplomatic privileges and immunities depends on the OHADA instruments and implementing measures.
• Recusal and challenges: Challenge/recusal procedures are strictly regulated under the CCJA/ OHADA framework. Where an arbitrator’s independence or impartiality is contested in proceedings connected to CCJA appointments, the relevant OHADA rules and the CCJA itself have roles in deciding such challenges.
• Disclosure and funder links: There is a clear trend toward strengthening arbitrator disclosure obligations and scrutiny of third‑party funder relationships. Enhanced disclosure aims to reduce the risk that undisclosed links between arbitrators and funders (or other third parties) will be invoked later to attack an award at the exequatur or annulment stage.

Footnote

1. https://www.gurufocus.com/news/3034969/sarama-resources-provides-update-on-arbitration-proceedings-srmmf-stock-news.