1. Investors and their investments shall respect the rights and dignity of indigenous peoples and local communities in accordance with relevant domestic laws and regulations, international law, norms and best practices, including the right of indigenous peoples, and local communities where applicable, to free, prior and informed consent and to participate in the benefit of the investment.
For greater certainty, the reference to the right to free, prior and informed consent of indigenous peoples, does not imply any obligation for investors and their investments to conclude agreements with those groups before conducting or operating their investment in the territory of State Parties which do not recognise indigenous peoples, taking into account applicable and relevant domestic laws and regulations.
2. Investors and their investments shall respect legitimate tenure rights to land, water, fisheries, and forests in accordance with relevant laws and regulations.
3. Investors, in accordance with relevant domestic law and regulations, shall submit their environmental and social impact assessments to the competent authorities and make them available and accessible to local communities and indigenous peoples and to any other stakeholder in the territory of the Host State.
Article 36. Socio-Political Obligations
Investors shall refrain from any interference in the internal affairs of State Parties and in their intergovernmental relations, in particular to influence the appointment of persons to public office, finance political parties or undermine the political stability or security of the Host State or to influence public opinion in a manner contrary to this Article.
Article 37. Anti-Corruption
1. Investors and their investments shall not offer, promise or give any unlawful or undue pecuniary or other advantage or present, whether directly or through intermediaries, to a public official of a State Party, or to a member of an official's family or business associate or other person in order to obtain a favour or that the official or other person act or refrain from acting in relation to the performance of official duties.
2. Investors shall cooperate with State Parties in preventing and eliminating corruption in public governance and shall not encourage, incite, aid, abet or conspire with any official or another person or any entity to commit or authorise the commission of an act of corruption, taking into account applicable and relevant domestic laws and regulations, the African Union Convention on Preventing and Combatting Corruption, the United Nations Convention against Corruption and other applicable international legal instruments.
3. Notwithstanding relevant international obligations of State Parties regarding anti- corruption, a breach of this Article by an investor is deemed to constitute a breach of the domestic laws and regulations of the Host State concerning the establishment and operation of an investment.
Article 38. Corporate Social Responsibility
1. Investors and their investments shall endeavour to achieve the highest possible level of contribution to the sustainable development of the Host State and the local community, through the adoption of a high degree of socially responsible practices, in accordance with the principles and standards set out in Paragraph 2 of this Article.
2. Investors and their investments shall endeavour to:
a. stimulate economic, social and environmental progress, aiming at achieving sustainable development;
b. encourage the strengthening of local capacities through close cooperation with the local community;
c. encourage the development of human capital, especially by creating employment opportunities and facilitating access of workers to professional training;
d. promote gender equality and inclusiveness in their activities;
e. refrain from seeking exemptions that are not established in the legislation of the Host Siate, relating to environment, health, security, work or financial incentives, or other issues;
f. develop and apply effective self-regulatory practices and management systems that foster a relationship of mutual trust between the companies and the community in which the operations are conducted;
g. promote the knowledge of workers about corporate policies, through appropriate dissemination of these policies, including programmes for professional training;
h. encourage, whenever possible the business associates, including service providers and sub-contractors, to apply the principles of corporate social responsibility provided for in this Article; and
i. foster the benefit sharing arising from an investment with the local communities concerned based on mutually agreed terms to facilitate access to an adequate standard of living.
3. State Parties undertake to encourage investors operating within their territories or subject to their jurisdiction to incorporate into their internal policies internationally recognised standards, guidelines and principles of corporate social responsibility including those set out in Paragraph 2 of this Article.
Article 39. Corporate Governance
1. Investors and their investments shall meet national, regional and internationally accepted standards of corporate governance, in particular in respect of transparency and accounting practices
2. Investors and their investments shall, in accordance with domestic laws and regulations:
a. ensure the equitable treatment of all shareholders;
b. encourage active cooperation with their stakeholders to create wealth, jobs, and sustainable financial management;
c. make timely and accurate disclosure on all material matters regarding an enterprise or company, including the financial situation, performance, ownership, and governance of the enterprise or company, risks related to environmental liabilities, and any other matters relating to the enterprise and company in accordance with the relevant and applicable regulations and requirements; and
d. comply with national policies on human resource development and to the extent possible invest in training, capacity building, and knowledge transfer through programmes for human resource development.
3. State Parties are encouraged to improve their regulatory and institutional framework for corporate governance in support of the requirements of this Article.
4. State Parties shall put in place measures enhancing transparency in financial reporting, disclosure, accounting, and audit practices in support of the requirements of this Article, in accordance with domestic laws, regulations and applicable international standards and obligations.
Article 40. Taxation and Transfer Pricing
1. Investors and their investments shall:
a. ensure that all transactions with related or affiliated companies are armâs length transactions at fair market price in accordance with the domestic regulations of the Host State and relevant international best practices;
b. conduct their operations in a manner that fully complies with all applicable domestic tax laws and international rules and principles relating to base erosion and profit shifting practices; and
c. provide all information required by the Host State to ensure compliance with the applicable laws relating to taxation.
2. State Parties shall, in accordance with the applicable international legal instruments, cooperate in the detection and prevention of transfer pricing manipulation by investors, including in the provision of information necessary to identify and prevent such practices and providing opportunities for Joint Audits within the framework of mutual administrative assistance in tax matters.
Chapter 6. INSTITUTIONAL ARRANGEMENTS
Article 41. Committee on Investment
1. The Committee on Investment, as established in accordance with Article 11 of the Agreement ("the Committee"), shall carry out such functions as assigned to it by the Council of Ministers to facilitate the implementation of this Protocol and further its objectives.
2. The Committee may establish such sub-committees and working groups as it considers necessary for the effective discharge of its functions with the approval of the Council of Ministers.
Article 42. Establishment of the Pan-African Trade and Investment Agency
1. The Assembly of Heads of State and Government of the African Union hereby establishes the Pan-African Trade and Investment Agency ("the Agency") as a technical institution of the AfCFTA Secretariat.
2. The Council of Ministers shall recommend to the Assembly of Heads of State and Government of the African Union, the adoption of the appropriate governance and administrative structures, functions of the Agency, as well as, rules and procedures for the administration and operation of the Agency, including determination of the seat of the Agency that shall be elaborated in an Annex. Upon adoption by the Assembly of Heads of State and Government of the African Union, the Annex shall form an integral part of this Protocol.
3. The Agency shall assist State Parties, their investment promotion agencies and their private sector through mobilising financial resources, fostering business development and providing technical and other support for the promotion and facilitation of investment in accordance with the provisions of this Protocol.
4. The Agency shall also assist State Parties in building their capacity in the formulation and implementation of investment policies to foster the expansion of intra-African investments, and especially those that increase exports; as well as facilitating coordination, interaction and dialogue between and among national focal points, investment promotion agencies and other relevant stakeholders to enable the sharing of information with respect to trade, export promotion, investment opportunities, peer learning and good practices.
5. The resources of the Agency's budget shall be derived from the annual budget of the AfCFTA Secretariat. Other sources of budget may be recommended by the Council of Ministers, for the consideration of the Executive Council of the African Union including:
a. fees collected by the Agency in the course of its operations;
b. any grants, donations, bequests or other contributions made to the Agency; and
c. all other payments due to the Agency in respect of any matter incidental to its functions.
6. The AfCFTA Secretariat shall undertake the functions of the Agency, on an interim basis, until its operationalisation.
Article 43. Technical Assistance, Capacity Building and Cooperation
1. State Parties shall support the provision of technical assistance, capacity building and cooperation to promote and facilitate investment under this Protocol.
2. To further the implementation of these provisions, the AfCFTA Secretariat working with the Agency upon its operationalisation, State Parties, Regional Economic Communities and partners shall coordinate the provision of technical assistance and undertake activities to enhance capacity building.
Chapter 7. MANAGEMENT AND SETTLEMENT OF DISPUTES
Article 44. State-State Dispute Settlement
1. The relevant provisions of the Protocol on the Rules and Procedures on the Settlement of Disputes shall apply to consultations and the settlement of disputes between State Parties relating to the interpretation and application of this Protocol.
2. For greater certainty, Paragraph 1 incorporates the right for a State Party to submit a claim on behalf of its nationals through the exercise of diplomatic protection and in accordance with customary international law.
Article 45. Dispute Prevention and Grievance Management
State Parties shall, through their designated competent bodies, facilitate the prevention of disputes and management of grievances by:
a. receiving complaints or grievances from investors in relation to their investments;
b. following-up and undertaking actions for de-escalating potential differences, or disagreements between investors and State Parties; and
c. providing effective assistance in resolving difficulties experienced by investors and their investments in such a manner as to avoid disputes.
Article 46. Dispute Resolution
1. In the event of a dispute between an investor of a State Party and a Host State relating to an alleged breach of this Protocol, the investor and the Host State shall initially seek to resolve amicably the dispute through consultations, negotiations, conciliation, mediation or other amicable dispute resolution mechanisms available in the Host State.
2. Notwithstanding the outcome of the dispute prevention and grievances management process under Article 45, in the event that an investor of a State Party and the Host State are unable to amicably resolve the dispute in accordance with Paragraph 1, they may seek to resolve such dispute in accordance with the dispute resolution mechanisms to be provided in the Annex referred to in Paragraph 3.
3. Rules and Procedures governing Dispute Prevention, Management and Resolution of disputes covered by this Protocol, shall be set out in an Annex to this Protocol. The Annex shall be negotiated after the adoption of this Protocol by the Assembly of Heads of State and Government of the Africa Union, and finalised within 12 months at the latest from the date of adoption of this Protocol. The Annex, upon adoption by the Assembly of Heads of State and Government of the Africa Union, shall form an integral part of this Protocol.
Article 47. Investor Liability
1. Investors and their investments shall, where applicable and in accordance with domestic laws and regulations, be subject to civil actions for liability in the judicial process of their Home State for the acts, decisions or omissions made in the Host State in relation to the investment where such acts, decisions or omissions lead to damage, personal injuries or loss of life in the Host State.
2. State Parties shall develop rules and procedures that allow for, or do not prevent or unduly restrict, the bringing of court actions relating to the civil liability of investors in the territory of their Home States, taking into account rules governing conflict of laws and the recognition and enforcement of foreign judgments.
3. For greater certainty, this Article does not exclude the possibility to bring civil actions against investors and their investments before the domestic courts of the Host State.
Chapter 8. FINAL PROVISIONS
Article 48. Entry Into Force
1. This Protocol shall be open for signature, ratification and accession by the State Parties to the Agreement, in accordance with their respective constitutional procedures.
2. This Protocol shall enter into force in accordance with the provisions of Articles 23(2) and 23(4) of the Agreement.
Article 49. Relationship with other International Investment Agreements
1. Existing bilateral investment treaties concluded between the State Parties shall be terminated within five (5) years from the entry into force of this Protocol. Upon termination of existing bilateral investment treaties concluded between the State Parties, their survival clauses shall also be terminated.
For the avoidance of doubt, this Protocol shall apply to investments of investors of State Parties that meet the criteria of an investment at the time of the termination of existing bilateral investment treaties concluded between the State Parties.
2. State Parties shall not conclude new bilateral investment treaties among themselves after the adoption of this Protocol.
3. State Parties shall make best endeavours to review and revise relevant existing regional investment agreements adopted by the Regional Economic Communities to achieve alignment with the Protocol within a period between five (5) to ten (10) years from the entry into force of this Protocol.
4. State Parties may take into account the requirements of this Protocol when negotiating international investment agreements and when reviewing existing international investment agreements concluded with Third Parties.
Article 50. Relationship between the Protocol on Investment and other Protocols of the AfCFTA
Upon its adoption, this Protocol, as an integral part of the Agreement, shall not modify rights and obligations under other Protocols of the Agreement. In case of conflict between this Protocol and other Protocols of the Agreement in relation to matters specifically governed by the other Protocols, the provisions of the latter shall prevail to the extent of the conflict.
Article 51. Notification
1. For the purposes of this Protocol, each State Party shall inform the AfCFTA Secretariat of the identity of its National Focal Point.
2. Each State Party shall notify the AfCFTA Secretariat of any international and regional agreements pertaining to or affecting investment with other State Parties and Third Parties to which they are signatory prior to or after the entry into force of this Protocol.
3. Each State Party shall notify the AfCFTA Secretariat, as soon as possible and at least annually, of the introduction of any new, or any amendments to existing laws or regulations or any measure which pertain to this Protocol.
4. State Parties shall inform the AfCFTA Secretariat of the complaints or grievance mechanisms available to investors in their territory.
5. The AfCFTA Secretariat shall promptly circulate the information received under this Article with the State Parties.
Article 52. Application
1. Each State Party shall apply appropriate measures to bring effect to the rules and procedures set out in the provisions of this Protocol. State Parties shall cooperate with each other in complying with the provisions of this Protocol.
2. State Parties shall, within a period of five (5) years from the entry into force of this Protocol, bring their national laws, regulations and policies into alignment with this Protocol.
Article 53. Amendments
Amendments to this Protocol shall be in accordance with Article 29 of the Agreement.
Article 54. Authentic Texts
This Protocol is drawn up in five (5) original texts in the Arabic, English, French, Portuguese and Spanish languages, all of which are equally authentic.