- T Wälde, ‘A Requiem for the “New International Economic Order”: The Rise and Fall of Paradigm in International Economic Law and post-mortem with timeless Significance’, in Hafner, et al (eds), Liber Amicorum Seidl-Hohenveldern (Kluwer International, The Hague, 1998), p 771; D Yergin and J Stanislaw, The Commanding Heights: The Battle between Government and the Market Place that is Remaking the World (1999 edn) (Simon & Schuster, 1998), Chap 3.
- Among the laws passed by Nigeria with a view to restricting foreign investment flow into the country were the Exchange Commission Act 1962, the various versions of the Nigerian Enterprise Promotion Decree issued between 1973 and 1979 and many other laws. See generally, F Beveridge, ‘Taking Control of Foreign Investment: A Case Study of Indigenisation in Nigeria’ (1991) 40 ICLQ 302; M Ajomo, ‘The Dimension and Legal Framework of International Investment Agreements in Nigeria: The Joint Venture Model’, in Ajomo (ed), New Dimension in Nigerian Law (NIALS, Lagos, 1989), p 1; Kachikwu, Nigerian Foreign Investment Law and Policy (1985); M Gidado, Petroleum Development Contracts with Multinational Oil Firms: The Nigerian Experience (Ed-Linform Services, Maiduguri, 1999), Chap 2.
- It is now generally agreed, even among previous critics such as the United Nations, that the benefits of foreign direct investment outweigh its detrimental effects on host countries. See, for example, World Investment Report 1992: Transnational Corporations as Engines of Growth, published by the Transnational Corporations and Management Division of the United Nations (New York, 1992).
- T Obadina, ‘Nigeria Unveils New Privatisation Plan’(1998) 12(3) Africa Recovery 4; V Ramanadham, ‘Privatisation in Nigeria’, in V V Ramanadham (ed), Privatisation: A Global Perspective (London, 1993), p 354; in particular see the Nigerian Government's brochure on privatisation entitled, ‘The Imperatives of Privatisation’, July 1999.
- Under the current privatisation exercise, some foreign and domestic investors have successfully emerged as ‘core’ investors in the privatised cement and oil marketing companies, see Dulue Mbachu, ‘A Crucial Stage’, Business in Africa Magazine, November, 2000, pp 42–43.
- Other positive steps taken by the Government include the abolition of multiple taxes and levies on businesses announced by the then Finance Minister in 1997 (see Business Times of 24 November 1997, p 2); a review of the Memorandum of Understanding (MOU) with the oil producing companies which guarantee the companies a margin of profits of between $2.50 to $2.70 per barrel of crude oil produced by each company as one of the incentives to attract foreign investment in the oil and gas sector of the economy, see Business Times, 14 August 2000, p 2. Notwithstanding these positive steps, there remains many legal and institutional constraints to private foreign investment in the Nigerian economy. See R Sine, ‘Legal Constraints to Private Sector Debt, Privatisation’, Business Times, 11 September 2000, p 44; 18 September, p 47; 25 September, p 47, and 2 October, p 47, respectively.
- Sections 17 and 18 NIPC. Under section 32 of the same law, restricted enterprises include the production of arms, drugs and narcotics, and military and paramilitary wears.
- Section 25 NIPC.
- Section 24 NIPC.
- Section 26 (2)(a) and (b) NIPC. Except otherwise agreed on by the foreign investor and the Nigerian Government, such disputes shall be settled in accordance with the ICSID Arbitration Rules (section 26(3) NIPC).
- K Daisi, ‘The New Economic Orientation: The Gains, the Challenges’, Business Times, 31 July 2000, pp 20–21; I Usman and I Anago, ‘Investment Promotion Decree No 16 of 1995’, Business Times of 31 October 1995 and 6 November 1996, respectively.
- Several international arbitral awards, notably those issued by the Iran-US Claims Tribunal and the US Foreign Claims Commission in the 1920s, and opinions of jurists have shown that an interference by a host state with a foreign investor's right to take part in the management of his investment may amount to indirect expropriation of property when the interference denies the owner of the property ‘fundamental rights of ownership, use, enjoyment or management of the business’ (eg the right to take part in management decisions or to derive profits from the investment even though title might still remain with the investor. See, ITT Industries, Inc v Iran, et al, 2 Iran-USCTR 348; Tippets, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers of Iran, et al, 6 Iran-USCTR 219; C Brower and J Brueschke, The Iran-US Claims Tribunal (Martinus Nijhoff, The Hague, 1998); B Weston, ‘Constructive Takings under International Law: A Modest Foray into the Problem of “Creeping Expropriation”’ (1975) 16 Virg J Int'l L 103; R Dolzer, ‘Indirect Expropriation of Alien Property’ (1986) 1 ICSID-Rev/FILJ 41; C Wallace, Legal Control of the Multinational Enterprise (1982), pp 268–296.
- New Nigerian Newspapers, 19 June 1997, p 1; OPEC Bulletin, July 1997, pp 20–21.
- As one commentator has noted, ‘if a government cannot comply with the essential rules of the global markets, if it is seen as inhospitable, unreliable and ineffective, capital flows will rather flow to competitors with greater credibility’. T Wälde, ‘Changing Directions for International Investment Law in the Global Economy’, Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee online journal: www.cepmlp.org; T Wälde and G Ndi, ‘Stabilising International Investment Commitments: International Law Versus Contracts Interpretations’ (1996) 31 Tex Int'l LJ 215.
- Thus, under the World Bank's International Centre for the Settlement of Investment Disputes between foreign investors and host states (ICSID Convention to which Nigeria is a signatory) and numerous BITs (to some of which Nigeria is a party), protected investments include tangible or intangible assets or rights in property such as ‘licences’, ‘permits’ and rights under a contract.
- Pyramid Cases, decision (in excerpt) published in (1991) 16 YB Comm Arb 16 at 32, comments by Delaume and Craig (1993) 8 ICSID-Rev/FILJ 231 at 264; also SPP v Arap Republic of Egypt (1993) 8 ICSID Rev/FILJ 328; C Schruer, ‘Commentary on the ICSID Convention’ (1996) 11 ICSID Rev/FILJ 318. For a discussion of modern conceptions of property by MITs and BITs, see A Akopov, ‘Scope of Application of Multilateral Investment Treaties—Protected Investment and Protected Investors’ (unpublished LLM thesis, CEPMLP, Dundee, 1996), Chap 1.
- See the Norwegian Ship Owners’ Claim (Norway v USA) (1922) 1 R Int'l Arb Awards 307; Oscar Chinn Case (UK v Belgium) PCIJ Ser A/B, No 63 at 65 (judgment of 12 December 1934); the Shufeldt Claim, PCIJ Ser A, No 20 (1929); R Higgins, ‘The International Law Perspective’, in T Daintith (ed), The Legal Character of Petroleum Licenses: A Comparative Study (CPMLS, Dundee, 1981), p 35; R Dolzer, ‘Indirect Expropriation of Alien Property’ (1986) 1 ICSID Rev/FILJ 41 at 44–48. The basis of these decisions have recently been confirmed by the Iran-US Claims Tribunal in numerous arbitral awards issued by the Tribunal in which it held that contract rights and such intangible rights in property (eg management and control or the right to dividends) are protected investment under international law. Phillips Petroleum Co v Iran, 21 Iran-US CTR 79 at 106; Amoco Int'l Finance Corp v Iran, 15 Iran-US CTR 189 at 220; Starrett Housing Corp v Iran, 4 Iran-US CTR 122 at 156–157; see generally C Brower and J Brueschke, The Iran-US Claims Tribunal (Martinus Nijhoff, The Hague, 1998), pp 374–375.
- G Etikerentse, Nigerian Petroleum Law (Macmillan, London, 1985), p 26.
- Ibid.
- T Wälde and A Kolo, ‘Environmental Regulation as Expropriation under Multilateral Investment Treaties: A New Discipline for Governments on “Regulatory Takings’” ICLQ (forthcoming).
- ‘Government contests suits on revocation of oil licences’, The Guardian, 9 August 1999, pp 21 and 26.
- P Stephan, ‘Barbarians inside the Gate: Public Choice Theory and International Law’ (1995) 10 Am Univ J Int'l L & Pol'y 745; J Rossi, ‘Public Choice Theory and the Fragmented Web of the Contemporary Administrative State’(1998) 96 Mich L Rev 1746.
- UNTHMB v Nnoli (1994) 8 NWLR (pt 363) 376; Ude v Nwara (1993) 2 NWLR (pt 278) 638; Obioha v Dafe (1994) 2 NWLR (pt 325) 157.
- (1987) 1 NWLR (pt 50) 385 at 398; LSDPC v Foreign Finance Corp (1987) 1 NWLR (pt 50) 413; Bello v Diocesan Synod of Lagos) 1973) 1 All NLR 247; Peenock Investment Ltd V Hotel Presidential Ltd (1983) 4 NCLR 122; Din v AG, Federation (1986) 1 NWLR (pt 17) 471.
- Merchants Bank Ltd v Federal Minister of Finance (1961) 2 NSCC 264 at 269.
- Obikoya & Sons Ltd v Governor of Lagos State (1987) 1 NWLR (pt 50) 385 at 400–401.
- In AG, Bendel State v Aideya (1989) 4 NWLR (pt 118) 646, while interpreting section 40 of the 1979 Constitution (same as section 44 of the 1999 Constitution), the Supreme Court held that any right in private property can only be taken possession of, or compulsorily acquired by, under the provisions of a law, and that any purported acquisition which is not according to a law is not an acquisition at all in the eyes of the Constitution. ‘Any such purported acquisition outside or not in complete compliance with the provisions of a law is completely null and void.’
- AG, Bendel State v Aideya (1989) 4 NWLR (pt 118) 646 at 675; Obikoya & Sons Ltd v Governor of Lagos State (1987) 1 NWLR (pt 50) 385 at 401; Odigie v Paper Mills Ltd (1993) 8 NWLR 338.
- (1987) 1 NWLR (pt 50) 413 at 446.
- Obioha v Dafe (1994) 2 NWLR (pt 325) 157 at 173.
- (1987) 1 NWLR (pt 50) 413 at 446.
- Ibid, 446–447.
- Ibid, 664; Obioha v Dafe (1994) 2 NWLR (pt 325) 157 at 176.
- (1993) 2 NWLR (pt 278) 638 at 665.
- R Dolzer and M Stevens, Bilateral Investment Treaties (Kluwer, Nijhoff, Dordrecht, 1995); K Vandevelde, ‘The Political Economy of Bilateral Investment Treaties’ (1998) 92 AJIL 621; A Akinsanya, ‘International Protection of Direct Foreign Investment in the Third World’ (1987) 36 ICLQ 58.
Journal of Energy & Natural Resources Law
Volume 19, 2001 - Issue 2