No Formal Policy, but a Discernible Direction

Burkina Faso has not published a formal policy statement on investor–state arbitration, so its position must be read from what it has signed, denounced and legislated. The picture is one of continued participation in the international system, combined with a clear effort to bring extractive-sector disputes closer to home.

Continued Participation

Burkina Faso remains an ICSID contracting state with 14 bilateral investment treaties (BITs) in force (see 2.1 Bilateral and Multilateral Investment Treaties). It has not indicated any general opposition towards investor–state arbitration as such, and it signed a new BIT with Turkey as recently as 2019. As at September 2026, it has announced no intention to denounce the ICSID Convention or any further BIT.

The Netherlands Denunciation

By a note verbale of 22 June 2018, Burkina Faso informed the Netherlands that it did not wish to renew their BIT (signed on 10 November 2000, in force since 1 January 2004), which ceased to be in force on 1 January 2019 at the end of its initial term. Three points are often misunderstood:

• this was the denunciation of a treaty in force, not the abandonment of a draft;
• the note gives no reason beyond expiry of the term – criticism of the investor–state clause came from Netherlands-based non-governmental organisations, not from the Dutch state; and

• Article 14(3), the survival clause, protects investments made before termination until 1 January 2034, including through investor–state arbitration.

A Shift in Forum for Mining Disputes

The Mining Code of 2024 (Law No 016-2024/ALT of 18 July 2024) contains no arbitration provision, and the model mining convention adopted by Decree No 2025-0290 of 14 March 2025 refers disputes, in its Article 32, to the Ouagadougou Arbitration, Mediation and Conciliation Centre (CAMC-O), with Ouagadougou as the seat and Burkinabè law as the governing law. This relocates the forum rather than rejecting arbitration, but it reduces the role of international institutions in new mining contracts.

Principal Conventions

Burkina Faso is a party to both of the principal conventions:

• the ICSID Convention, which it signed on 16 September 1965 and ratified on 29 August 1966, and which entered into force for it on 14 October 1966 – it has designated no constituent subdivision or agency and made no notification under Article 25(4); and
• the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which it acceded on 23 March 1987 and which entered into force for it from 21 June 1987, with no reciprocity or commercial reservation.

The OHADA System

Burkina Faso is also a member of the Organisation for the Harmonisation of Business Law in Africa (OHADA). The OHADA Uniform Act on Arbitration of 23 November 2017, in force since 15 March 2018, is directly applicable and serves as Burkina Faso’s arbitration law for any arbitration seated in the country. The OHADA system also provides an institutional arbitration mechanism administered by the Common Court of Justice and Arbitration (CCJA) in Abidjan, whose 2017 Arbitration Rules expressly cover disputes founded on an investment instrument (Article 2.1).

Other Relevant Instruments

Burkina Faso is a member of the Multilateral Investment Guarantee Agency (MIGA) and a party to the Vienna Convention on the Law of Treaties, to which it acceded on 25 May 2006. It is not a party to the Energy Charter Treaty and has neither signed nor ratified the UN Convention on Transparency in Treaty-based Investor–State Arbitration (Mauritius Convention).

A Low Volume of Formal Claims

Investor–state arbitration remains relatively rare in Burkina Faso. The state has been respondent in four ICSID proceedings since 1997 and in one publicly known contract-based ICC arbitration – a modest number given the size of the foreign-invested mining sector. Two of those cases are pending: Sarama Resources Ltd, registered in December 2024, and the claim brought by Libyan Foreign Bank under the ICSID Additional Facility, registered in August 2026 (see 1.5 Major Arbitrations).

Negotiation as the Dominant Method

Most disputes with foreign investors are resolved by negotiation, often with the state as buyer. For example, when the owner of the Boungou and Wahgnion gold mines and the company that had sold them to it became locked in a private arbitration, a settlement was reached in August 2024 with government mediation, under which the mines were transferred to the Burkinabé state. In April 2026, the state, through its mining company SOPAMIB, agreed to purchase a further 25% of Kiaka SA for XOF70 billion, raising its stake from 15% to 40%. Neither transaction has produced an investor–state claim.

Domestic Litigation and Local Institutions

Disputes over administrative acts, such as the grant or withdrawal of a permit, may be brought before the Burkinabè administrative courts, with the Conseil d’État at the apex. In practice, foreign investors with treaty protection rarely treat domestic litigation as their main route for high-value claims, particularly where the challenged measure is politically sensitive. The CAMC-O is increasingly used for commercial disputes and, under the 2025 model mining convention, is intended to become the default forum for mining disputes; it reported 24 new filings in 2025 (16 arbitrations and eight mediations), across all categories of dispute.

Mining and Mining Services

Mining, and gold in particular, accounts for almost all investor–state activity involving Burkina Faso. Three of the four ICSID cases concern mining or mining-related activity (gold exploration and mining explosives), and the principal ICC arbitration concerned the Tambao manganese deposit. The most recent case, however, arises in banking (see 1.5 Major Arbitrations).

Mining typically generates disputes for several reasons.

• Mining projects involve large, long-term, sunk investments that depend on permits and conventions granted by the State.
• Since 2022, the transitional authorities have made greater State control of natural resources an explicit policy objective.
• The Mining Code of 2024 raises the State’s free carried interest from 10% to 15%, with a right to acquire, for consideration, at least a further 30% for itself and/or the national private sector, and allows permits to be withdrawn without compensation (Article 125) or suspended or withdrawn where a dispute over the title threatens public order (Article 126).
• Security-related stoppages can lead to disputes over compliance with permit obligations.

Recent Measures

The Boungou and Wahgnion assets were transferred to the State mining company SOPAMIB by decree of 11 June 2025. In September 2025, the Taparko operating permit was withdrawn under Article 126 of the Mining Code, the government citing legal disputes and unmet socio-economic commitments. These negotiated, compensated transactions have not yet led to investor–state arbitration.

The most legally significant investor–state arbitrations involving Burkina Faso are outlined below.

SIREXM v Burkina Faso (ICSID Case No ARB/97/1)

• Facts: a gold-mining company brought a claim under the arbitration clause of a mining convention; consent was contractual, not treaty-based. The case was registered on 27 January 1997.
• Key principles: the tribunal considered the validity of a state contract obtained through a conflict of interest, a senior official of the mining ministry having held a concealed interest in the claimant’s capital.
• Outcome: in an award of 19 January 2000, the tribunal declared the convention null on two grounds – fraud and contrariety to public policy – and ordered reciprocal restitution. Only extracts of the award, in French, have been published.

Pan African Burkina Limited and Others v Burkina Faso (ICC)

• Facts: companies of the Pan African Minerals group commenced an ICC arbitration in 2016 concerning the contract for the development of the Tambao manganese deposit.
• Key principles: the validity of the state’s termination of a long-term public–private arrangement. In 2018, the tribunal refused provisional measures in the absence of irreparable harm.
• Outcome: in an award of 8 March 2019, the tribunal held that the termination was valid and dismissed claims reported at USD2.2 billion. It also rejected the state’s allegations of corruption and dismissed its counterclaim.

AECI Mauritius Ltd v Burkina Faso (ICSID Case No ARB/21/18)

• Facts: a claim relating to a mining-explosives business, registered on 8 April 2021.
• Key principles: consent was founded on Burkina Faso’s investment laws of 1995 and 2018 rather than on a treaty, illustrating that the Investment Code can operate as a standing offer to arbitrate (see 2.5 Investment Laws).
• Outcome: the proceeding was discontinued on 23 September 2022.

Sarama Resources Ltd v Burkina Faso (ICSID Case No ARB/24/51)

• Facts: the claim arose from the withdrawal, by a ministerial letter dated 25 August 2023, of the Tankoro 2 exploration permit, which covered the main deposit of the Sanutura gold project. Sarama served a notice of intent on 29 November 2023, and the case was registered on 23 December 2024 under the Canada–Burkina Faso BIT of 2015.
• Key principles: Sarama characterises the withdrawal as an unlawful expropriation that rendered the project valueless, together with other breaches of the BIT and international law. Burkina Faso raised jurisdictional objections in its Counter-Memorial of 31 March 2026, which are being heard with the merits rather than in a separate phase. The case will be the first test of the Canada BIT’s qualified standards (see 3.1 Common Complaints).
• Status: the tribunal (Albert Jan van den Berg, President; John Beechey; and Nassib G Ziadé) was constituted on 23 June 2025, and a hearing is scheduled for 22–26 February 2027. The claim stands at USD242 million plus interest, compared with a preliminary estimate of AUD180 million.

Libyan Foreign Bank v Burkina Faso (ICSID Case No ARB(AF)/26/3)

• Facts: registered on 17 August 2026 under the ICSID Additional Facility Rules, Libya not being an ICSID Contracting State, the case concerns the nationalisation in May 2024 of Banque Commerciale du Burkina, owned equally by Burkinabè and Libyan interests.
• Key principles: as the proceeding has only recently been registered, the publicly available information does not yet permit a detailed assessment of the substantive claims or of the legal issues the tribunal will have to determine.
• Status: the proceeding is pending; no tribunal has yet been constituted, and no decision has been rendered. The basis of consent has not been made public.

No Adverse Award Yet

No award ordering Burkina Faso to pay compensation has yet been rendered. In both concluded merits awards – SIREXM and the Pan African ICC arbitration – the state’s position prevailed on the principal claims, and AECI was discontinued. The state’s attitude towards paying an adverse award must therefore be inferred from its conduct in the proceedings.

Conduct in Proceedings

Burkina Faso does not adopt an empty-chair approach. It defends the claims brought against it through international counsel alongside its agent judiciaire de l’État (the State’s litigation agency), and it contests jurisdiction where it considers there are grounds to do so, as in Sarama. It has historically preferred to negotiate the consequences of disputes rather than disregard them.

Annulment

There is no public record of Burkina Faso seeking annulment of an ICSID award under Article 52 of the ICSID Convention or setting aside a non-ICSID award; it has not needed to. The nullity declared in SIREXM concerned the mining convention itself, on the merits, and is unrelated to post-award annulment. Enforcement of any future adverse award in Burkina Faso would turn on the revised OHADA rules on immunity from execution (see 9.2 Approach of the Courts).

Bilateral Investment Treaties in Force

Burkina Faso has 14 BITs in force (date of signature/entry into force):

• Switzerland (6 May 1969/15 September 1969);
• Tunisia (7 January 1993/15 October 2003);
• Germany (22 October 1996/21 November 2009);
• Malaysia (23 April 1998/1 August 2004);
• Chinese Taipei (9 October 1998/18 August 2003);
• the Belgium–Luxembourg Economic Union (18 May 2001/13 January 2004);
• Benin, Comoros, Ghana and Mauritania (each 18 May 2001/18 August 2003);
• Guinea (25 March 2003/26 August 2004);
• the Republic of Korea (26 October 2004/14 April 2010);
• Morocco (8 February 2007/5 March 2016); and
• Canada (20 April 2015/11 October 2017).

The treaties are not uniform: the 1969 treaty with Switzerland provides only for state–state arbitration, while the Canada BIT contains a detailed investor–state mechanism. Each treaty must be checked for the existence and scope of investor–state consent.

Signed but Not in Force, and Terminated

BITs with Chad (18 May 2001), Singapore (27 August 2014) and Turkey (11 April 2019) are signed but not in force. The BIT with the Netherlands was terminated with effect from 1 January 2019 but still protects earlier investments until 1 January 2034 (see 1.1 National Position).

Multilateral Instruments and Outlook

Burkina Faso is also a party to the Organisation of Islamic Cooperation (OIC) Investment Agreement of 1981, the West African Economic and Monetary Union (WAEMU) Treaty, the Agreement establishing the African Continental Free Trade Area (AfCFTA) (in force since 30 May 2019) and the WTO agreements, including the Agreement on Trade-Related Investment Measures and the GATS. It has not ratified the AfCFTA Protocol on Investment, adopted by the African Union Assembly on 19 February 2023, or the Samoa Agreement with the EU (15 November 2023), both of which UNCTAD lists among its signed but not yet in force instruments. No ratification programme or timetable has been announced.

No Single Template

Burkina Faso’s treaties were concluded over almost five decades, with very different partners and do not follow a single national model. UNCTAD records a Burkina Faso Model BIT of 2012, for which it provides the French text, and a Model BIT adopted on 4 May 2023, whose text is not publicly available. As recorded by UNCTAD, the 2012 model follows the classical approach: an asset-based definition of investment, fair and equitable treatment, most-favoured-nation (MFN) treatment, free transfer of funds, compensation for expropriation and a choice of fora for investor–state disputes.

The Canada BIT as the Best Guide

In practice, the Canada BIT of 2015, which follows Canada’s own treaty model, is the clearest expression of the state’s current treaty practice. Its distinctive features include:

• a minimum standard of treatment tied to customary international law, covering fair and equitable treatment and full protection and security, and not breached merely because another provision is breached (Article 6);
• an annex under which non-discriminatory measures protecting legitimate public welfare objectives do not constitute indirect expropriation, except in rare circumstances (Annex I);
• an MFN clause that does not extend to dispute settlement mechanisms (Annex III);
• general exceptions, a prudential carve-out and a self-judging essential security exception (Article 18);
• provisions on health, safety and environmental measures and on corporate social responsibility (Articles 15 and 16); and
• detailed procedural conditions, transparency rules and a prohibition on punitive damages (see 7.1 Notice of Dispute and Consultation Period, 7.2 Confidentiality and Transparency and 8.1 Remedies).

WAEMU

Burkina Faso is a member of WAEMU, a customs and monetary union of eight states sharing the CFA franc (XOF). WAEMU membership guarantees freedom of establishment and movement of capital within the union, subject to the common exchange regulations. The WAEMU Treaty does not provide a mechanism for investor–state arbitration.

ECOWAS Withdrawal

Burkina Faso’s withdrawal from the Economic Community of West African States (ECOWAS) took effect on 29 January 2025, together with that of Mali and Niger. ECOWAS has indicated that trade and investment treatment will continue pending agreement on future relations. Whether the ECOWAS Supplementary Act on Investments of 2008, which contains an investor–state mechanism, continues to apply to Burkina Faso is unresolved, and investors should not rely on it without specific advice.

The Alliance of Sahel States

Burkina Faso, Mali and Niger established the Confederation of the Alliance of Sahel States (AES) by treaty on 6 July 2024. The AES has created a confederal investment bank, but as of September 2026 it has no common investment instrument, court or arbitration centre with jurisdiction over investment disputes.

AfCFTA

The AfCFTA Protocol on Investment, which Burkina Faso has not ratified, combines investor protection with investor obligations and a strong right to regulate. Its dispute settlement annex, required by Article 46(3), has not been finalised, so investor–state arbitration under the Protocol is deferred rather than excluded.

Other Arrangements

Burkina Faso has signed the EU–West Africa Economic Partnership Agreement, which is not in force and contains no investment protection, and its eligibility for US African Growth and Opportunity Act preferences ended on 1 January 2023. Neither confers investor–state rights.

No Official Interpretative Materials

Burkina Faso does not publish commentaries, exchanges of notes or other official guidance on the interpretation of its investment treaties. There is no public joint interpretation of any of its treaties. Treaty interpretation therefore follows the general rules of the Vienna Convention on the Law of Treaties.

Indirect Sources

Diplomatic material becomes available only through the treaty partner. The note verbale denouncing the Netherlands BIT, for example, is known because it was published in the Dutch treaty series (Tractatenblad 2019, No 91). Under the BIT with Canada, the non-disputing state may make submissions to a tribunal on questions of interpretation under Article 30(2), which could become an interpretative source as the Sarama arbitration proceeds.

The Investment Code

Burkina Faso’s national investment law is Law No 038-2018/AN of 30 October 2018 (the Investment Code), promulgated on 3 December 2018, which sits alongside the Investment Orientation Law (Law No 023-2013/AN of 30 May 2013). No amendment to the Investment Code has been identified as of September 2026.

Key Substantive Provisions

The Investment Code applies to all investors regardless of nationality. It guarantees freedom to invest and to carry on any productive, service or commercial activity, the right to recruit locally and internationally (subject to the Labour Code), free disposal of property, access to foreign exchange under West African Monetary Union rules, and freedom to transfer capital, profits and expatriate savings.

Every investor needs a prior authorisation of establishment from the minister responsible for industry (Article 7), which is deemed granted if no decision is notified within three months; this is not a nationality-based screening mechanism. Tax and customs incentives require a separate approval (agrément) under one of five regimes (A to E), defined by amount invested and permanent jobs created.

Dispute Resolution

Disputes over the application of the Code that are not settled amicably go to the national courts or to arbitration (Article 38). Article 39 provides for an ad hoc three-member tribunal and, where foreign interests are involved, recourse to ICSID or the CCJA; a request for arbitration automatically suspends any pending litigation. Article 39’s appointment mechanism differs from the Uniform Act on Arbitration (see 4.2 Default Procedures), which should prevail for arbitrations seated in Burkina Faso under Article 10 of the OHADA Treaty, although the point has not been decided.

Interaction with Treaties

Article 3 of the Uniform Act on Arbitration expressly allows arbitration based on “an investment instrument, in particular an investment code”. The Investment Code is therefore a free-standing basis of consent, as AECI Mauritius showed. Treaty protection is additional: under Article 151 of the Burkinabé Constitution, duly ratified treaties prevail over legislation from their publication, subject to reciprocal application. A covered investor can therefore rely on whichever instrument protects it better.

Historical Practice

Direct arbitration clauses have historically been common in mining conventions and large infrastructure contracts. Both SIREXM (ICSID) and the Pan African dispute (ICC) arose under clauses of this kind. The 2003 Mining Code allowed mining conventions to refer disputes to international arbitration.

The Current Trend

The trend is now towards domestic institutional arbitration. The 2025 model mining convention designates the CAMC-O, with its seat in Ouagadougou and Burkinabè law as the governing law. Existing conventions with international arbitration clauses remain in force according to their terms, but new mining contracts are unlikely to offer ICSID or ICC arbitration.

Comparison with Treaty Protection

Contractual clauses and treaty rights offer different protection:

• a contractual clause protects the rights created by the contract, under the chosen governing law, which is now Burkinabè law, and is exposed to legislative change beyond any stabilisation period;
• a treaty claim is based on international law and is available even if the contract is terminated or its forum clause changed, but it is subject to the treaty’s conditions, including waiver of domestic proceedings under the Canada BIT; and
• Article 2 of the Uniform Act on Arbitration prevents the state and other public-law entities from relying on their own law to contest the validity of an arbitration agreement or their capacity to arbitrate, which protects contractual clauses against unilateral challenge.

For investors who can structure their investment through a treaty jurisdiction, the combination of a contractual clause and treaty protection remains the most robust position.

Expropriation

Expropriation, direct or indirect, is the most frequent complaint. The Sarama Resources Ltd case concerns the withdrawal of a permit that allegedly deprived a project of its value, while the claim brought by Libyan Foreign Bank concerns an outright nationalisation. Under the Canada BIT, expropriation is lawful only if it is for a public purpose, follows due process, is non-discriminatory and is accompanied by compensation at fair market value, with interest at a commercially reasonable rate (Article 10). The Mining Code’s provisions on withdrawal without compensation (Articles 125 and 126) are likely to be tested against these standards.

Breach of Contract

Contract-based claims have been important historically. SIREXM and the Pan African arbitration both concerned the validity or termination of a State contract, and both were decided in the State’s favour. Contractual complaints now also feature in treaty cases, where investors argue that termination of a convention or withdrawal of a title amounts to a treaty breach.

Fair and Equitable Treatment

Fair and equitable treatment is invoked alongside expropriation. Under the Canada BIT, it forms part of the customary international law minimum standard (Article 6), which is likely to be read as not protecting legitimate expectations as a free-standing obligation. This narrower standard is likely to be significant in Sarama.

National Treatment and MFN Treatment

National treatment and MFN treatment have not been central in the known cases. Under the Canada BIT, the MFN clause cannot be used to import more favourable dispute settlement provisions from other treaties (Annex III). Other complaints, such as denial of justice or unlawful transfer restrictions, have not featured in published cases.

Broad Party Autonomy

The parties are largely free to choose their arbitrators. For arbitrations seated in Burkina Faso, the Uniform Act on Arbitration requires only that:

• the mandate may be entrusted only to a natural person (Article 5);
• the tribunal must consist of one or three arbitrators (Article 5); and
• an arbitrator must have full civil rights and must remain independent and impartial of the parties (Article 7).

There is no nationality, professional qualification or residence requirement.

Institutional Rules

Under the ICSID Convention, the majority of the tribunal must be nationals of states other than the host state and the investor’s home state, unless each member is appointed by agreement of the parties (Article 39). Arbitrators appointed by the Chairman of the ICSID Administrative Council must come from the Panel of Arbitrators and may not be nationals of either state (Articles 38 and 40). Under the Common Court of Justice and Arbitration (Cour Commune de Justice et d’Arbitrage,CCJA) Rules, the CCJA confirms or appoints arbitrators.

Uniform Act on Arbitration

Where the parties have not agreed on the number of arbitrators, a sole arbitrator is appointed (Article 5). Under Article 6:

• in a three-member tribunal, each party appoints an arbitrator and the two appoint the third;
• if a party fails to appoint within 30 days of a request to do so, or the two arbitrators fail to agree on the third within 30 days of their appointment, the competent court of the state appoints at the request of a party; and
• the court must rule within 15 days, and its decision cannot be appealed.

The Investment Code provides different time limits (60 and 30 days) and designates the Conseil d’État or the competent court (see 2.5 Investment Laws). The Uniform Act should prevail for arbitrations seated in Burkina Faso.

ICSID

If the tribunal has not been constituted within 90 days of the notice of registration, either party may ask the Chairman of the ICSID Administrative Council to appoint the arbitrator(s) not yet appointed (Article 38 of the ICSID Convention). This is the default mechanism in Sarama and in any other ICSID case against Burkina Faso.

Multi-Party Arbitrations

The Uniform Act has no specific rule for multi-party arbitrations. Under the CCJA Rules, where several claimants or respondents cannot agree on a joint appointment in time, the CCJA may appoint the entire tribunal (Article 3.1). The ICSID Convention has no specific multi-party rule, and the Article 38 default applies whenever the tribunal has not been constituted in time.

Supportive Role Only

Burkinabè courts may intervene in the selection of arbitrators only as a default appointing authority where the agreed mechanism has failed (Article 6 of the Uniform Act on Arbitration and Article 39 of the Investment Code). They cannot review the merits of the parties’ choices.

Limitations

The court’s powers are limited in three ways:

• it acts only at the request of a party, once the relevant time limit has expired;
• it must decide within 15 days, and its appointment decision cannot be appealed; and
• it has no role in ICSID proceedings, where the Convention excludes national courts from the constitution of the tribunal, or in CCJA arbitration, where the CCJA appoints.

Uniform Act on Arbitration

A party must raise a challenge within 30 days of discovering the relevant facts, and the competent court decides the challenge within 30 days (Article 8). If the court fails to do so, the challenge may be brought before the CCJA, and a decision rejecting a challenge may be appealed only by cassation before the CCJA. Challenges typically concern the independence and impartiality required by Article 7. A replacement arbitrator is appointed under the rules that applied to the original appointment.

CCJA Rules

A challenge must be filed with the Secretary General of the CCJA within 30 days of notification of the appointment or confirmation, or of the date on which the party learned of the relevant facts (Article 4.2). The CCJA decides admissibility and merits together, and its decision is final (Article 4.6).

ICSID

A party may propose disqualification for a manifest lack of the qualities required by Article 14(1) of the ICSID Convention, including independent judgement, or for ineligibility (Article 57). Under the 2022 ICSID Arbitration Rules, the proposal must be filed within 21 days of the later of the constitution of the tribunal or the date on which the party knew or should have known of the facts (Rule 22). The unchallenged arbitrators decide, or the Chairman of the Administrative Council where they are equally divided or a majority is challenged (Article 58 and Rule 23).

Uniform Act on Arbitration

Arbitrators must be, and remain, independent and impartial (Article 7). Before accepting, an arbitrator must disclose any circumstance likely to give rise to legitimate doubt as to independence or impartiality, and may accept only with the unanimous written consent of the parties. The duty continues throughout the arbitration.

ICSID

Each arbitrator must sign a declaration covering independence, impartiality, availability and confidentiality, and has a continuing duty to disclose any change of circumstances (Rule 19). The declaration is informed by the notice of third-party funding that parties must file (Rule 14).

Practice

There are no specific Burkinabè rules on conflicts of interest beyond these provisions. The IBA Guidelines on Conflicts of Interest in International Arbitration are widely used as a reference. Relationships with third-party funders are addressed through the general disclosure duty rather than a specific rule under OHADA or Burkinabè law.

Uniform Act on Arbitration and CCJA Rules

A tribunal seated in Burkina Faso may order provisional or conservatory measures at a party’s request (Article 14 of the Uniform Act on Arbitration). Two categories are reserved to the courts: conservatory attachments (saisies conservatoires) and judicial security interests (sûretés judiciaires). The CCJA Rules contain the same exclusion and allow awards granting interim measures to be the subject of an immediate application for exequatur. Measures ordered under these rules are binding.

ICSID

Under Article 47 of the ICSID Convention and Rule 47 of the 2022 Arbitration Rules, a tribunal may “recommend” provisional measures, taking into account whether they are urgent and necessary and their effect on each party. Since Maffezini v Spain (1999), tribunals have consistently treated such recommendations as binding. Typical measures include preservation of evidence, protection of the status quo, protection of the integrity of the proceedings and restraint of parallel proceedings.

Practice Relating to Burkina Faso

The standard for interim relief is demanding. In the Pan African ICC arbitration, the tribunal refused provisional measures in 2018 because irreparable harm had not been shown. Under the Canada BIT, a tribunal may not order attachment or enjoin the application of the measure alleged to breach the treaty (Article 36).

Courts Seated in Burkina Faso

The existence of an arbitration agreement does not prevent a court from ordering provisional or conservatory measures in cases of recognised and reasoned urgency, provided they do not require examination of the merits (the fourth paragraph of Article 13 of the Uniform Act on Arbitration). Conservatory attachments and judicial security interests can only be ordered by the courts, under the OHADA Uniform Act on Simplified Recovery Procedures and Enforcement Measures.

Limits Where the State Is the Respondent

In investor–state disputes, the role of the courts is limited in practice. No conservatory measure may be taken against public-law entities – the state, territorial authorities and public establishments – unless they have expressly waived immunity (Article 30 of the revised Uniform Act on Simplified Recovery Procedures and Enforcement Measures). There is no published Burkinabè decision granting interim relief in support of an investor–state arbitration.

ICSID and Treaty Limits

Consent to ICSID arbitration excludes any other remedy (Article 26 of the ICSID Convention). A party may apply to a court for provisional measures only if the instrument recording consent permits it, as provided in Rule 47(7). Article 22(3) of the Canada BIT preserves the investor’s ability to seek injunctive or declaratory relief, provided that such relief does not involve the payment of damages before domestic courts, notwithstanding the waiver required to bring a treaty claim.

National Law

The Uniform Act on Arbitration does not provide for security for costs, and the CCJA Rules contain no express provision on the subject. A tribunal seated in Burkina Faso could consider an application under its general power to order provisional measures, but there is no published decision on the point. The Burkinabè courts have no specific power to order security for costs in support of an arbitration.

ICSID

The 2022 ICSID Arbitration Rules expressly allow security for costs (Rule 53). The tribunal must consider the party’s ability and willingness to comply with an adverse costs decision, the effect of security on its ability to pursue its claim, and the conduct of the parties. It must consider all relevant evidence, including the existence of third-party funding. No application for security for costs in a case involving Burkina Faso has been reported.

Permitted but Unregulated

Neither Burkinabè legislation nor the OHADA Uniform Acts regulate third-party funding. There is no prohibition, licensing regime or specific disclosure obligation, and funding arrangements are governed by the funding contract and the applicable arbitration rules. The Investment Code does not address the question.

Prevalence

Third-party funding is not prevalent in domestic litigation or commercial arbitration in Burkina Faso, and there is no local funding market. The only publicly known use is in a high-value investor–state claim in the extractive sector, with a foreign funder. In Sarama, the claimant announced on 24 October 2024 a four-year non-recourse loan of USD4.4 million from Locke Capital II LLC to finance its claim.

No Case Law

There is no Burkinabè or CCJA case law on third-party funding. No decision in an arbitration involving Burkina Faso has addressed funding in relation to disclosure, security for costs, costs allocation or the tribunal’s independence.

Practical Relevance

The subject is nevertheless relevant in practice. In Sarama, the funding was disclosed publicly by the claimant through stock exchange announcements and is subject to the ICSID disclosure rules. Any future ruling on the consequences of funding in that case would be the first involving Burkina Faso.

Disclosure

There is no disclosure obligation under Burkinabè law, the Uniform Act on Arbitration or the CCJA Rules. In ICSID proceedings, Rule 14 of the 2022 Arbitration Rules requires a party to notify the name and address of any non-party that has provided funding for the proceeding, directly or indirectly, and, where the funder is a legal entity, the names of the persons and entities that own and control it. The duty continues throughout the case, and the tribunal may order further disclosure.

Security for Costs

Under Rule 53 of the ICSID Arbitration Rules, the existence of third-party funding is one of the circumstances the tribunal must consider when deciding on security for costs. It is not a free-standing ground for an order; the key question remains the claimant’s ability and willingness to comply with an adverse costs award. No court or tribunal decision on this question involving Burkina Faso has been reported (see 5.3 Security for Costs).

Canada BIT

The Canada BIT contains the most detailed pre-arbitration requirements of Burkina Faso’s treaties (Article 22):

• the investor must deliver a notice of intent at least 180 days before submitting the claim;
• consultations are to be held within 60 days of the notice of intent;
• at least six months must have elapsed since the events giving rise to the claim;
• the claim must be submitted within three years of the date on which the investor first acquired, or should have acquired, knowledge of the breach and the loss; and
• the investor must waive its right to initiate or continue domestic proceedings with respect to the measure, except for proceedings for injunctive or declaratory relief not involving the payment of damages.

In Sarama, the notice of intent was served on 29 November 2023 and the claim was registered more than a year later. Failure to comply with these conditions can defeat consent, so they should be treated as mandatory.

Other Treaties

Burkina Faso’s older treaties generally require a period of amicable settlement before arbitration, but the length and form of that period vary. Each treaty must be checked individually. The 1969 treaty with Switzerland does not provide for investor–state arbitration at all.

Investment Code and Contracts

The Investment Code provides for arbitration only where a dispute has not been settled amicably (Article 38). Where a contract requires a pre-arbitral step such as negotiation or mediation, Article 8-1 of the Uniform Act on Arbitration requires the tribunal, if a party so requests, to examine compliance and, if the step has not been initiated, to suspend the proceedings so that it can be completed.

Starting Point

Burkinabè law does not impose confidentiality on arbitration. The Uniform Act on Arbitration requires only that the tribunal’s deliberations remain secret (Article 18). Confidentiality depends on the applicable rules: the CCJA Rules make the proceedings and the award confidential unless all parties agree otherwise (Article 14).

ICSID and Treaty Transparency

Investor–state disputes involving Burkina Faso are now largely transparent:

• under the 2022 ICSID Arbitration Rules, awards are published with the parties’ consent, which is deemed given if no party objects within 60 days, and ICSID otherwise publishes excerpts; orders and decisions are published with agreed redactions; and hearings are open to observers unless a party objects (Rules 62 to 65);
• non-disputing parties may apply to file written submissions, and the non-disputing treaty state may make submissions on interpretation (Rules 67 and 68); and
• the Canada BIT goes further, making awards public, opening hearings to the public, making other documents available unless the parties agree otherwise, and allowing amicus curiae submissions (Articles 32 and 33).

In Sarama, a procedural order on transparency was issued in September 2025 and the claimant’s Memorial is published on the ICSID website. The UNCITRAL Rules on Transparency may also apply to an UNCITRAL arbitration under the Canada BIT, concluded after 1 April 2014, unless its parties have agreed otherwise.

Balancing Transparency and Confidentiality

Where public interests are at stake, the balance is best struck through targeted protection rather than general confidentiality: procedural orders protecting commercially sensitive information (such as geological data and financial models) and security-related information, with pleadings and awards otherwise public. Burkina Faso is not a party to the Mauritius Convention, but it participates in the Extractive Industries Transparency Initiative (EITI), whose 2023 Validation found that most active mining conventions had been published – limiting the confidentiality that can be expected in mining disputes.

Treaty Limits

The Canada BIT limits the remedies available (Article 36). A tribunal may award only:

• monetary damages and any applicable interest; and
• restitution of property, provided the respondent may pay monetary damages instead.

The tribunal may not award punitive damages, and it may not order attachment or enjoin the application of the measure. Costs may be awarded in accordance with the applicable arbitration rules. Burkina Faso’s older treaties contain no equivalent provisions, so the general rules of international law apply.

General Principles

Under customary international law, the state must make full reparation for an internationally wrongful act by restitution, compensation or satisfaction. In practice, investor–state tribunals award compensation, since restitution of a withdrawn permit or nationalised company is rarely requested or feasible. Punitive damages are not recognised in investment treaty practice and are not provided for in Burkinabè law, which follows the civil law principle that compensation must match the loss suffered.

Contract-Based Claims

In contract-based arbitration, the remedies depend on the governing law. In SIREXM, having declared the convention null, the tribunal ordered reciprocal restitution rather than damages. Under the 2025 model mining convention, Burkinabè law will govern such claims.

No Burkinabè Precedent

No award has yet assessed damages against Burkina Faso, so there is no established practice specific to the jurisdiction. Valuation will follow general investment treaty practice. Under the Canada BIT, compensation for expropriation must equal the fair market value of the investment immediately before the expropriation took place.

Methods Likely to Be Used

The choice of method depends on the stage of the project:

• income-based methods, principally discounted cash flow (DCF), for operating mines with an established production and cash flow record;
• market-based methods, such as comparable transactions and market capitalisation, for exploration and development projects; and
• cost-based methods, such as sunk investment, where the project is at an early stage or future income is too speculative.

Mining Projects

Many claims against Burkina Faso concern projects that are not yet in production. Tribunals are generally cautious about applying DCF to projects without an operating history, although Tethyan Copper v Pakistan (2019) shows that it may be accepted where a feasibility study is sufficiently advanced. The difference between the preliminary estimate and the claimed amount in Sarama shows how significant the choice of valuation method can be.

Interest

Interest is normally awarded. Under the Canada BIT, compensation for expropriation includes interest at a commercially reasonable rate for the currency of payment, from the date of expropriation until payment (Article 10). Tribunals have discretion as to the rate and whether it is simple or compound, and compound interest is now common in investment treaty awards. For domestic debts, a legal interest rate is fixed annually in Burkina Faso on the basis of a formula common to WAEMU states.

Costs

The Uniform Act on Arbitration contains no rule on costs. Costs are therefore governed by the applicable rules:

• under Article 61(2) of the ICSID Convention and Rule 52 of the 2022 Arbitration Rules, the tribunal decides how costs are borne, taking into account the outcome, the conduct of the parties, the complexity of the issues and the reasonableness of the costs claimed;
• under the CCJA Rules, the tribunal fixes the costs of the arbitration, including the normal costs incurred by the parties for their defence, and decides how they are allocated, taking into account whether each party conducted the arbitration efficiently (Article 24); and
• under the Canada BIT, costs are awarded in accordance with the applicable arbitration rules (Article 36).

General Approach

There is no Burkinabè practice on costs in investor–state cases. International practice has moved towards a “costs follow the event” approach, adjusted for conduct and partial success, and outcome is the first factor listed in Rule 52. Parties should expect legal and expert fees and institutional costs to be allocated largely, but not exclusively, by outcome.

A Recognised Principle

The investor is expected to take reasonable steps to limit its losses. Investment treaties involving Burkina Faso do not refer to mitigation, but tribunals apply it as a general principle of international law: the International Court of Justice recognised it in Gabčíkovo-Nagymaros (1997), and it is reflected in the International Law Commission’s commentary to the Articles on State Responsibility. Losses that could reasonably have been avoided are therefore generally not recoverable.

Practical Application

Mitigation is a question of reasonableness, and the burden of proving a failure to mitigate normally rests on the state. In the mining context, it may arise where an investor has not pursued available administrative options, sought a new title or maintained the site after a measure. The duty does not require an investor to accept a settlement that would waive its rights or to incur unreasonable costs.

ICSID Awards

ICSID awards are binding and not subject to any appeal or remedy outside the ICSID Convention (Article 53). Burkina Faso must recognise an ICSID award and enforce its pecuniary obligations as if it were a final judgment of its own courts (Article 54), with no review of the merits or procedure. Execution remains subject to local law on immunity from execution (Article 55), and enforcement may be stayed pending annulment under Article 52(5).

Awards Seated in an OHADA State

An award has res judicata effect once made (Article 23 of the Uniform Act on Arbitration) but is enforceable only after exequatur by the competent court (Article 30). The procedure is ex parte and the court must rule within 15 days, failing which exequatur is deemed granted; it may be refused only if the award is manifestly contrary to international public policy (Article 31). A refusal may be challenged only by cassation before the CCJA, while a grant cannot be appealed separately but falls with any annulment application (Article 32). Awards under the CCJA Rules receive exequatur from the President of the CCJA, with effect in all OHADA member states.

Foreign Awards

Awards made outside the OHADA area are recognised under the applicable conventions, principally the New York Convention, and otherwise on the same conditions as OHADA awards (Article 34 of the Uniform Act).

Awards Set Aside or Challenged at the Seat

Under Article V(1)(e) of the New York Convention, recognition “may” be refused where the award has been set aside at the seat, which leaves the court a discretion; there is no Burkinabè decision on the point. Where set-aside proceedings are pending, the court may adjourn and order security (Article VI). For awards seated in Burkina Faso, annulment must be sought within one month of service of the award with exequatur (Article 27) and suspends enforcement unless the tribunal ordered provisional enforcement (Article 28).

Sovereign Immunity

The State cannot rely on immunity from jurisdiction in arbitration (Article 2 of the Uniform Act on Arbitration). Immunity from execution survives in narrower form (see 9.2 Approach of the Courts).

Recognition and Public Policy

The OHADA framework favours enforcement. Exequatur of an award seated in an OHADA state may be refused only if the award is “manifestly” contrary to international public policy (Article 31 of the Uniform Act on Arbitration), and annulment is limited to six exhaustive grounds: absence, nullity or expiry of the arbitration agreement; irregular constitution of the tribunal; failure to comply with the mandate; breach of the adversarial principle; contrariety to international public policy; and a total absence of reasons (Article 26).

The standard is thus international, not domestic, public policy, and the requirement of a manifest breach is designed to exclude review of the merits.

For foreign awards, Article V(2)(b) of the New York Convention refers to the public policy of the enforcing state. There is no published Burkinabè decision on its scope, but the OHADA framework points towards the same international standard.

Immunity from Execution

The revised Uniform Act on Simplified Recovery Procedures and Enforcement Measures of 17 October 2023, in force since 16 February 2024, has changed the position. Article 30 now provides that, unless immunity has been expressly waived, there is no forced execution or conservatory measure against public-law entities, including the state, territorial authorities and public establishments. Immunity from execution is therefore no longer absolute:

• it is defined by legal form, so state-owned companies incorporated under private law do not benefit from it;
• an express waiver in a contract or other instrument is now effective; and
• for immune entities, Article 30-1 allows a creditor with an enforceable title, after a formal demand that has remained unsatisfied for three months, to ask the Minister of Finance to enter the debt in the budget as a compulsory expenditure.

The budgetary procedure has not yet been tested in Burkina Faso, and the Uniform Act does not provide a remedy if the Minister fails to act. Investors should therefore negotiate express waivers of immunity in State contracts wherever possible.

Identifying Assets

Burkinabè law has no pre-judgment discovery, so asset identification relies on public sources, such as the Trade and Personal Property Credit Register (RCCM), the land register, procurement records and published mining conventions, and on enforcement measures. Once an enforceable title is obtained, garnishment (saisie-attribution) allows a creditor to attach sums held by third parties such as banks and trade debtors, who must declare what they hold for the debtor.

Which Assets Can Be Pursued

Assets of the state, territorial authorities and public establishments are protected by immunity from execution unless it has been waived, whereas assets of state-owned companies incorporated under private law are not. Outside Burkina Faso, ICSID awards can be enforced in any ICSID Contracting State and other awards under the New York Convention, subject to local immunity rules.

The Corporate Veil

The CCJA respects the separate legal personality of state-owned companies rather than piercing the corporate veil. In Aziablévi Yovo v Société Togo Télécom (Judgment No 043/2005), it had held a public enterprise immune. It reversed that position in Mbulu Museso v Société des Grands Hôtels du Congo (Judgment No 103/2018 of 26 April 2018), holding that a company incorporated under private law cannot claim immunity, whatever its shareholding or public-service mission. Later decisions, including Judgment No 139/2021 concerning a company 95% owned by the state, confirm this approach, which the revised Article 30 now reflects.

Practical Consequences

The principle works in both directions. An investor may attach the assets of state-owned companies such as SONABEL, ONEA or SOPAMIB for their own debts, but not to satisfy an award against the state alone. That would require the company to be a debtor under the award, or a court to disregard its separate personality, which no Burkinabè or CCJA decision has yet done in an investment context.