For healthy and continuous in flow of Foreign Direct Investments (FDIs) to Nigeria, the country has over the years put in place friendly legal framework for Foreign Direct Investments (FDIs) protection.
In this Foreign Investors’ Guidelines for Doing Business in Nigeria Series, we shall be examining the legal mechanisms put in place for the purpose of encouraging an increasing FDIs inflow and ensuring foreign investors’ confidence in the country.
We shall be discussing foreign investors’ protections ranging from certainty of arbitral proceedings and other dispute resolution mechanisms in the country.
The fact with modern economic systems is that no country can be an island economically; Foreign Direct Investment (FDI) protection is very essential to the successful attainment of foreign investors’ business objective(s) and economic development of any economy.
There are steps that host countries can lawfully take in the exercise of their sovereignty and power can lead to depriving foreign investors of reaping the fruits of their investments.
Host government actions that can affect foreign investment adversely includes nationalization; the act of a government taking control of a private enterprise and converting it to state or public ownership.
Expropriation; the act of a government taking possession of or otherwise meddling with privately held assets or property for the use and benefit of the public, or in the public interest.
The legislative and administrative acts of the government as government action can also have adverse effects on foreign investors’ businesses in Nigeria.
This is the indirect or creeping form of expropriation. The only difference is that, it mode of operation shifted attention from the physical and actual taking-over of an investor’s assets to the legislative and administrative acts of the government.
While not depriving a foreign investor of the ownership of an asset in this type of government control, it is capable of significantly reducing the value of properties and investments of the foreign owner.
Foreign investors don’t like investing in country’s with risk such as arbitrary revocation of a license; permit or a concession after the investor has made the requisite investments.
The advancement and expansion of international business relationships and the importance of foreign direct investment to the economic development of Nigeria has made the country to put in place some foreign business protection laws for the purpose of encouraging foreign investors.
Nigeria has performed greatly in providing protections to potential foreign investors.
Investment Treaties
In spite of the provisions of Section 12 of the Nigerian Constitution, investment treaties entered by the country are binding on, and enforceable against Nigeria upon ratification under the principle of ‘pacta sunt servanda’.
Also, by a literal application of Article 31 of the Vienna Convention on the Law of Treaties which provides that a treaty shall be interpreted in good faith in agreement with the ordinary meaning to be given to the terms of the treaty.
Bilateral Investment Treaties (BITs): Nigeria entered into its first Bilateral Investment Treaty (BIT) with Germany in 1979 which came into force in 1986.
According to finding from my investigation Nigeria has entered into 28 Bilateral Investment Treaties (BITs) between 1986 and November, 2015.
Of the total number, 13 are currently in force, 14 are signed and 1 repealed. The Bilateral Investment Treaties (BITs) currently in force are the ones entered into with Finland, France, Germany, Italy, Netherlands, Romania, Serbia, Spain, South Korea, Sweden, Switzerland, Taiwan, and United Kingdom.
The 14 BITs which have been signed by Nigeria but are yet to enter into operation were signed as far as back as 1996.
In addition to the usual investment protection standards, these BITs provide that a contracting state shall not damage by irrational or unfair means the maintenance, management, disposal of investment in its territory of nationals or companies of the other Contracting Party.
And the same recompense for losses suffered due to a safety event made to a domestic investor shall be allowed to the investor from the other contracting state.
These BITs also provide for the right of subrogation allowing foreign investors to obtain suitable investment insurance and for these investment insurance providers to seek remedy on their behalf from Nigeria.
The BITs that are presently in force have also made satisfactory requirements for the standard investment protection. These include fair and equitable treatment, umbrella clauses, most favoured nation status, national treatment, obligations against arbitrary and discriminatory measures and security.
Multi-lateral Investment Treaties (MITs): Economic Community of West African States (ECOWAS) treaty is one of the famous MITs Nigeria have entered. The ECOWAS treaty was signed on 28th May 1975; it came in into force on the 20th June, 1975.
The treaty currently has 15 signatories who are member states of ECOWAS.
Article 2 of the Treaty gives ‘Community Enterprise’ status to businesses whose equity capital is owned by two or more member states, and citizens or institutions of the Community.
Article 16 of the Treaty provides that Community Enterprise shall be accorded favourable treatment with regards to incentives and advantages, and shall not be nationalised or expropriated by the government of any member state except for valid reasons of public interest, and subject to the payment of prompt and adequate compensation.
Organization of Islamic Conference (OIC) investment treaty is another MIT Nigeria has entered into in relation with providing favourable conditions for foreign investments in the country.
OIC is a treaty with an Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organization of the Islamic Conference, which came into force in September, 1986.
Chapter 2 of the Treaty mandates all member states of the Organization of Islamic Countries to provide adequate security and protection to the invested capital of an investor who is a national of another contracting member state.
The terms of protection specifically include the enjoyment of equal treatment, undertaking not to adopt measures that may directly or indirectly affect the ownership of the investor’s capital or investment and not to expropriate any investment except it is in the public interest and on prompt payment of adequate compensation.
Host states are further obligated to guarantee free repatriation of any capital and returns due to an investor.
Conventions to which Nigeria is a Signatory:
The country is signatory to a number of Conventions which have been entered into for the purposes of protecting foreign direct investment.
The most significant convention in this regard is the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).
International Centre for the Settlement of Investment Disputes (ICSID) as an arbitral institution under the World Bank Group is a fully integrated, self-contained arbitration institution that provides standard arbitration clauses, arbitration proceedings rules, arrangements for venues, financial arrangements and administrative supporting including the appointment of arbitrators to parties.
Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) primarily provides for the settlement of investment disputes between investors and sovereign host states.
It has also taken the necessary legislative measures to make the Convention’s resolution effective in Nigeria by enacting it as a domestic legislature in the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Decree No. 49 of 1967.
Another significant investment protection convention Nigeria has entered into is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
New York Convention was adopted by the United Nations in June, 1958 and it mandates domestic courts in signatory countries to give effect to arbitration agreements, and to also recognise and enforce valid arbitral awards given in other signatory states.
The New York Convention in other words is particularly significant for the enforcement of arbitral awards resulting from non-ICSID investment arbitration proceedings.
In an attempt to bring into conscious awareness the legal guidelines to undertaking business in Nigeria to intended foreign investors, we shall specifically be reviewing domestic legislations and investment treaties which collectively make up the legal framework for foreign investment protection in the country.
The Domestic Legal Framework:
The notable investment legislation in Nigeria is the Nigerian Investment Promotion Commission Act, CAP N117 Laws of the Federation of Nigeria (“NIPC Act”).
The NIPC Act provides the fundamental and suitable legal framework for the protection of foreign investors in the country. Part 5 of the NIPC Act provides that foreigners may invest and participate in any enterprise in Nigeria.
They are assured unrestricted transfer of funds attributable to the investment such as profits, dividends, payments in respect of loan servicing, and the remittance of proceeds obtained from the sale or liquidation of assets or any interest in the venture through an approved dealer in freely convertible currency.
Section 25 of the NIPC Act clearly provides that no enterprise shall be expropriated or nationalised without prompt payment of compensation; the same section also provides a protection clause to an investor to claim “creeping” expropriation by establishing that the acts complained of indirectly results to expropriation or have expropriatory tendency.
Lastly, the NIPC Act provides that disputes between a foreign investor and any government in Nigeria arising from an investment shall be submitted to arbitration within the framework of any investment treaty entered into between the government of Nigeria and any state of which the foreign investor is a national.
It further provides that where there is a disagreement between the Nigerian government and the foreign investor on the mode of dispute settlement, the dispute shall be submitted to ICSID for arbitration.
Foreign investor is thus at liberty in Nigeria to institute arbitration proceedings against a government even after bringing a claim or counterclaim against the government in a court or domestic arbitration.
Another domestic legislation that provides protection to foreign investors is the Foreign Exchange (Monitoring and Miscellaneous Provisions Act) CAP F34.
Section 15 of this Act provides that any person may invest in any business venture with foreign currency or capital imported into Nigeria through an authorized dealer who will issue a Certificate of Capital Importation to the foreign investor.
Sub-section (4) of the same section in addition guarantees unconditional transferability of funds in freely convertible currency of any such monies arising from an investment made in Nigeria with foreign currency, including dividends and profits, payments in respect of loan servicing, and remittances of the proceeds of sale or liquidation of assets.
A similar provision on repatriation is also found in Section 18 of the Nigeria Export Processing Zones Act, CAPN107 (“NEPZA Act”).
Section 18 of the NEPZA Act provides that foreign investors who invest in outlined businesses within an export zone shall be eligible to remit profits and dividends earned in the zone and repatriate foreign capital investment at any time with capital appreciation of the investments.
Other foreign investors’ protection laws are the Arbitration and Conciliation Act. The act gives foreign investors the opportunity to determine the mode of settling disputes that may arise out of their investments without resort to litigation in domestic (Nigeria) courts.
With the anticipation that such settlement will unfailingly and efficiently protect and enforce the rights of foreign investors and their investments provides a framework for domestic arbitration it also makes provisions for international commercial arbitration which is more preferable by foreign investors.
Section 56(2) (d) defines ‘international arbitration’ to include any arbitration that the parties have expressly agreed in the arbitration agreement to treat as international arbitration. The Act provides that every arbitration award is capable of enforcement under the New York Convention.