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BRIDGING THE GAP BETWEEN INTERNATIONAL INVESTMENT LAW AND THE ENVIRONMENT

CHAPTER ONE

1.0     GENERAL INTRODUCTION

The main issue arising from the relationship between foreign investment and environmental protection have been raised by academics and practitioners of international investment law.^[1] The centre of the problem lies in the fact that protecting the rights of investors and environmental protection are often clashing objectives. Trying to synchronize these two fields of international law may present significant challenges to many scholars, especially considering the enormously conflicting interests at stake any time an investor carries out economic activities abroad.

The definition of investor and investment are among the key elements determining the scope of application of rights and obligations under international investment Law. An investment Law applies only to investors and investments made by those investors who qualify for coverage under the relevant provisions. Only such investments and investors may benefit from the protection and be eligible to take a claim to dispute settlement.

Why is the definition of investor and investment so important? From the perspective of a capital exporting country, the definition identifies the group of investors whose foreign investment the country is seeking to protect through the agreement, including, in particular, its system for neutral and depoliticised dispute settlement. From the capital importing country perspective, it identifies the investors and the investments the country wishes to attract; from the investor’s perspective, it identifies the way in which the investment might be structured in order to benefit from the agreements’ protection.

This definition may also be central to the jurisdiction of the arbitral tribunals established pursuant to investment agreements since the scope of application rationae personae may depend directly on what “investor” means, i.e. being an investor of a state party to the treaty is a necessary condition of eligibility to bring a claim. In addition, the scope of application rationae materiae depends on the definition of investment and in particular with respect to the jurisdiction of the International Centre for the Settlement of Investment Disputes (ICSID), as it extends to “any dispute arising out of an investment”.

1. Legum “Defining Investment and Investor: Who is Entitled to Claim?” presentation at the Symposium “Making the Most of International Investment Agreements: A Common Agenda” co-organised by ICSID, OECD and UNCTAD, 12 December 2005, Paris.

The Investment Committee, in its discussions on the interpretations of provisions of investment agreements, identified the definition of investor and investment as among the core elements of these agreements. It requested the Secretariat to undertake legal research and analysis, looking at state practice and jurisprudence related to these issues, with a view to improving mutual understanding and outcomes of agreements. As a factual survey this paper does not necessarily reflect the views of the OECD or those of its member governments. It cannot be construed as prejudging ongoing or future negotiations or disputes arising under international investment agreements.

The issue is becoming of increased relevance in the current context where national security and other essential interest concerns are on the rise and the nationality and identity of an investor and the nature of an investment face growing scrutiny by regulators and policy makers in a number of OECD and non-member countries, taking into account their countries’ rights and obligations under international investment agreements. The definition of investor and investment under these agreements is relevant in relation to such concerns, including protecting intellectual property and politically motivated corporate takeovers by foreign government-controlled investors or sovereign investment funds.

 

1.1     BACKGROUND OF STUDY

Conceptual issues underpinning the hilly relationship between international investment law and environmental development can be grouped into a number of key themes. At the nucleus of one such theme are questions pertaining to substantive and procedural investment protection rules, such as;

1. Are these rules development-friendly?
2. Do they reflect the evolving views on development and the changing role of foreign investors who are now expected to not only create economic growth but also do so in environmentally and socially-friendly manner?^[2]
3. And, do international investment norms provide sufficient room for host states to retain their right to pursue public policy objectives, including policies fostering sustainable development?
4. Does the international investment regime sufficiently enable developing countries to make a tangible input in the process of formation, reform and application of investment rules?

 

For years now, the fostering of economic development has been one of the key justifications for the existence of international investment treaties and of their investor-state arbitration mechanism. Yet the actual capacity of the international investment regime to promote development – the very question of whether concrete investment treaty rules and their application are development-friendly – continues to generate divided views. Both the doctrine and scholarship of international investment law had long persisted in either ignoring or dismissing the need to engage with the law of international development. The edited collection seeks to bring together these hitherto autonomous strands of scholarship.

At one end of the spectrum is Muthucumaraswamy Sornarajah with his ever fierce and unwavering criticism of international investment law. He draws on recent empirical studies questioning the correlation between investment treaties and the flow of FDI and economic development. The true purpose of investment treaties, he argues, was to legitimize “plunder under the cloak of a law made through instrumentality of power” (p. 47). As the very proliferation of investment treaties in the 1980s is often seen as a direct consequence of diminished development assistance, Sornarajah argues that “investment treaty law lied when it stated that it is fashioned to promote economic development in the poorer world…Over three thousand treaties resulted from the pressures to conform to the lies or otherwise access to loans and other facilities would be denied” (p. 50). Similar skepticism can also be discerned in Celine Tan’s exposition of newly proliferating narratives proclaiming investment treaties to be vehicles of both economic development and good governance. As she insightfully notes, “the language of good governance, its associated rule of law narrative and their relationship to development outcomes have been used to justify the normative and institutional evolution of law and policy in this area” (p. 147). Tan cautions “against the ahistorical import of the good governance agenda into the international investment law and policy unless accompanied by broader systemic review and reform of the regime” (p. 148).

In a stark contrast, Yannick Radi advances a narrative of international investment law as a regime that has been created to, and is driven by, the development rationale. He argues that despite the fact that some arbitrators have applied investment treaties in a way that “fails to adequately take into account the public interests attached to the concept of the right to development and sustainable development” (p. 72), development still constitutes the teleological focus of international investment law. Regrettably, however, Radi’s claim that international investment law “has always aimed primarily at the promotion of economic development, with the protection of foreign investors being only instrumental to it” (p. 75) is not borne out by other constitutive features of the regime. On the contrary, as Krista Nadakavukaren Schefer argues in her chapter on investment treaty law and poverty reduction, international rules on investment protection “did not originate from any development impulses” (p. 379). International investment law may well proclaim wealth creation to be one of its key objectives, but to understand the regime’s capacity to promote development, we need to examine concrete rules on investment protection which are first and foremost concerned with property rights of investors. Once we look beyond the preambles and analyse the way substantive investment protections have been framed and construed – including provisions (or lack thereof) on investor misconduct, on contributory negligence and the calculation of damages awards – the development promise of international investment law and its feasibility become highly questionable. Consider, for example, the investor’s right to claim damages. Ever since its inception in early investment treaties, the right to damages has been justified by reference to the need to lower risks associated with investing in a foreign country and reducing the cost of capital for host states, which would arguably accelerate their economic development. If investment treaties are aimed at attracting low-cost capital for development, this objective appears to be countered by the extent of the host states’ actual and potential exposure to staggering damages awards – with the amounts claimed by investors at times exceeding the foreign exchange reserves of a respondent state.^[3] As the number of investment arbitration cases brought against developing countries and the amount of compensation sought by claimant investors have risen sharply,^[4] the question arises whether the development rationale at the heart of investment treaty protection should “innately extend to a willingness to attract any kind of foreign capital, at all costs” (García-Bolívar, 2011, p. 587).

Radi’s argument is also confounded by multiple instances of arbitral tribunals dismissing the relevance of express references to development featuring in the ICSID Convention and investment treaties.^[5] As the opening chapter of the volume concedes, arbitration practice and scholarship are divided over “whether the inclusion of the reference to economic development in the preamble of the ICSID Convention should inform the interpretation of the term investment” (pp. 24–25) and whether economic development should be regarded as a relevant criterion in determining the level of protection investors can enjoy under substantive standards such as fair and equitable treatment.

Christina Binder’s analysis of international investment law and its implications for indigenous people also falls within the more optimistic end of the spectrum: whilst acknowledging the potential for conflict, she argues that there are ways in which the existing regime can accommodate the protection of indigenous people’s rights, thus promoting a more inclusive concept of development alongside safeguarding economic interests of foreign investors. Such solutions range from provisions on jurisdiction and applicable law in investment arbitration to the greater use of the principle of systemic integration under Article 31(3) (c) of the Vienna Convention on the Law of Treaties and the use of provisions on third party participation in arbitral proceedings. Binder also concurs with other contributors to the volume in highlighting the importance of treaty reform and the use of impact assessments.

The fact that development concerns are currently far from being fully operationalized in investment treaty law and arbitration is clearly demonstrated in two contributions which explore, through meticulous analysis of treaty rules and arbitral awards, problems arising in countries in transition from authoritarian to democratic rule. Jonathan Bonnitcha argues that currently international investment law is indifferent to changes in the form of government in a host state. The fact that an investment was made during a period of authoritarian rule does not change its eligibility for treaty protection. Investment treaty law, as it stands today, in particular rules on protected investment and principles of compensation, delimits the capacity of incoming democratic governments to reorganize their economies in pursuit of new development priorities. In his examination of the cognate issue of international protection of contracts concluded with non-democratic governments, Walid Ben Hamida shows that international investment law does not distinguish such contracts as a separate category and thus protects them in the same manner as any other foreign investment contracts. Although many scholars argue that democracy and good governance have a positive impact on economic growth, Ben Hamida insightfully points to evidence which counters this view. Investors do not necessarily value democracy (and, one could argue, export democratic values in their operations); indeed, “for a commercial company trying to make investments, you need a stable environment. Dictatorships can give you that” (p. 314).^[6] This, however, may change if the new generation of treaties follows some of the recent models, such as that set by the Cotonou Partnership Agreement where the promotion of peace, security, stability and democracy features as one of the key treaty objectives. The inclusion of express references to democracy in investment treaties may necessitate tribunals to take into account the impact of an investment on the promotion of stable and democratic political environment.

The emergence of new and arguably more progressive models of treaties raises the question about the sites where such progressive drafting originates and the factors driving the process of renewal and change. Do these new treaty models reflect the nationally-felt rather than internationally-imposed approaches to investment protection? Do developing countries have a say in shaping the evolving landscape of investment treaty law?

These questions are alluded to in Diane A. Desierto’s exploration of how the right to development could be mainstreamed into international investment law. One way to achieve this would be for states to reconfigure their own internal decisionmaking structures relating to investment. For instance, a host state should, prior to approving investment projects, put in place adequate regulatory safeguards to ensure environmental and social compliance and to design the investment projects so that it enables the participation of affected communities and allows fair distribution of benefits among the relevant constituencies. To establish a process of economic, social, cultural and political development, it is crucial that an architecture for compliance with the host state’s human rights obligations is built directly into “the contractual, administrative, and regulatory infrastructure of the international investment project, operationalized under current corporate social responsibility mechanisms, human rights due diligence processes, environmental and social impact assessments accompanying the contract planning, formation and monitoring processes” (p. 351).

While this proposal indeed goes a step further by bridging the gap between calls for a more development friendly international investment law and the reality of investment decision-making at a national level, it also highlights the problem with shifting the burden of creating a more development-friendly investment framework onto developing states which frequently lack the requisite human, institutional and economic capacity. Likewise, the unresolved issue here is whether the creation of domestic mechanisms fostering more development-friendly investments can be reconciled with the bulk of investment treaties and arbitration jurisprudence that remain open to criticism for a failure to adequately accommodate development concerns. There is a need to align domestic investment protection rules with states’ investment treaty commitments: these two frameworks often evolve under disparate influences and do not always reinforce and replicate one another. One manifestation of such discrepancy was highlighted in my recent study of investment law-making in Central Asia where instances of progressive and innovative rules on socially responsible investment can be found in national legislation of Kazakhstan but not in its investment treaties.^[7] This brings into a spotlight the fact that many developing states continue to be rule-takers and their national law and international commitments are often the product of distinct international influences, including donor-sponsored legal reform initiatives and pressures to sign international investment treaties.

 

1.2 STATEMENT OF RESEARCH PROBLEM

Any average scholar or practitioner of international economic law, or commerce, cannot dismiss the fact that a lot of the legal requirements regulating foreign investment in Nigeria are encouraging. The reoccurring question in the minds of scholars and indeed the average Nigerian, and the international community, is why there has not been any appreciable level of promotion of foreign investment in the Nigerian economy after more than fifty years of independence.

The existing legal framework from pre-colonial Nigeria has proved to be quite inadequate in surmounting the attendant socio-economic, political, legal and allied problems always associated with foreign investments in this globalized world economy. This scenario becomes more complex and complicated against the background that trade by barter has given way to a technological and much sought after economic pace of development, influenced mostly by present day modus operandi of international commerce. In view of the above obvious facts, the general concept of the legal framework regulating foreign investment in Nigeria has equally become complex in nature as well as its application.

Therefore the statement of research problem is:

1. Is the legal framework regulating foreign investment in Nigeria is adequate to attract and maintain the desired Foreign Investments?

 

Under the above research question, the following questions will guide us in examining the adequacy or otherwise of the Legal Framework regulating foreign investment in Nigeria.

1. Does the legal framework conform to international standards and practice.
2. What are those factors that have inhibited foreign investment promotion and protection in Nigeria?
3. Have the policy drive of the previous and present administrations in Nigeria encouraged or deterred foreign investment development?
4. What are the necessary things to be done if the answer to some of these

questions is not in the affirmative?

1. Is there any need for foreign investment in Nigeria?

1.3 AIM AND OBJECTIVES OF RESEARCH

The main aim of this research is to answer the question of how the gap between international investment law and the environment can be bridged.

The objectives of this research are:

1. To critically analyze the basic legal framework establishing, as well as, regulating foreign investments in Nigeria.
2. To establish if the existing legal framework is adequate and conforms to international standards and practice.
3. To undertake an in-depth analysis of the various challenges and issues hampering the flow and progress of Foreign Direct Investments in the Nigerian economy.
4. To highlight some other relevant economic, social and political issues which have adversely affected the growth of Foreign Direct Investment in Nigeria.

 

1.4 RESEARCH METHODOLOGY

The methodology used in this research is Doctrinal. This will include the primary and secondary sources. The primary sources of materials to be utilized are:

Relevant legislative enactments (present and past)

1. Judicial decisions, rules and relevant pronouncements of both municipal and international courts/tribunals
2. Legislative and various conventions of United Nations Agencies.

The secondary sources are:

1. Relevant published textbooks on the subject matter
2. Articles, magazines and periodicals

 

1.5   JUSTIFICATION

The need for an elaborate, and all embracing legal framework for the promotion of foreign investment in Nigeria is already an over-due expectation. The reason for this is that as days roll by, the ever dynamic nature of international trade with its accompanying sophistication always has bearings on every-growing or developed economies. The Nigerian situation cannot be an exception because the world is now a global village.

 

A research project of this nature therefore becomes imperative most especially now that we have a democratic system of government where the positions of some of these laws could be freely canvassed for amendments or outright change where the need arises.

This research will adequately contribute significantly in giving an insight into the regulatory and legislative enactments on foreign investment law in Nigeria vis-a- vis International Investment Law and will be a comprehensive and single compendium for scholars, students, investors, and policy makers for easy reference. This work will contribute in scholarly efforts in x-raying the several legislations that relate to foreign investment laws and commerce in Nigeria with accompanying suggestions and solutions to some of these legislations where there are lacunas.

This work will also discuss the responsibilities of the Federal Government in terms of transparency and accountability in its policies of liberalization of companies or the privatization programme and the impact on Foreign Investment in Nigeria. This study will articulate the need for review of some of the existing regulatory and legislative organs of foreign direct investment in Nigeria so as to meet up with what is obtainable in larger developed economies of the world today.

 

1.6 SCOPE OF STUDY

Since the study of foreign investment is a subject matter that cuts across other disciplines like economics, law, political science, international relations, banking, etc. we shall for the purpose of this study be restricting ourselves mostly to the legal phenomenon of foreign investment needs.

This study will focus on the importance of having a detailed legal framework for promoting foreign direct investment in Nigeria. It will take a comprehensive look at the various legislative and institutional responses of Government in promoting Foreign Direct Investment in Nigeria since independence in 1960. It will also examine the issues and challenges faced so far; the responsibilities of government in ensuring best practices in governance that will encourage Foreign Direct Investment in Nigeria and the performance of the various institutions towards ensuring that there should be Foreign Direct Investment in Nigeria. The research will also explore several major milestones in the history of International Investment law and Foreign Investment in Nigeria.

 

1.7 LITERATURE REVIEW

International Investment law enjoys growing practical as well as scholarly attention. With increasing number of multilateral and bilateral investment treaties, investment provisions in preferential trade agreements and investment treaty arbitrations, international law scholars, legal practitioners, civil society, investment law policy makers, international law organizations and investment treaty negotiators increasingly focus their interest on this field of International law. At the same time, many conceptual questions relating to international investment law remain insufficiently studied.

The desirability of an urgent review of these existing literatures now becomes imperative and timely. It is obvious that some of these existing texts and materials have fallen short of recent municipal and international legislative overhauls that have been brought to bear on present day international commerce and investment needs.

This paucity of texts appears to be threatening the comfortable socio-economic equilibrium of Nigeria, its economies and to some extent even associated business partners. It is therefore, the intention that this research work would provide the missing links or lacuna in the area of promoting foreign investments in Nigeria and underscore the challenges to Foreign Direct Investment as well the achievements so far.

One of the authors that have written extensively on the subject of Foreign Investment is Professor George Schwanzenber, who in his book titled “Foreign Investments and

International Law”^[8] stated that:

the status and protection of investments abroad are central and perennial, but are governed by the ever-changing themes of international economic law. In one way or another, these problems have concerned me for over forty years. My interest in them dates from the late twenties when I studied the impact of Soviet Union on international law and was surprised to find that this impact was considerably less than that of international law on former Soviet Union. When at the same time, I examined the legal aspects of the activities of Ivan Kreuger and his transnational watch empire; I was again confronted with the limitations imposed by international law on the discretion of the state parties to such government contracts.

 

One obvious factor in this book is the fact that the author concentrated his efforts on the developed economies and did not give any practical attention to third world economies of which Nigeria belongs. The insufficient nature of materials on this subject that reflects the framework for the promotion of foreign investment in Nigeria has provided a veritable ground for this research to be carried out.

Professor Ray August stated that:^[9]

the regulations governing foreign investments are commonly set out in

“investment laws,” and “investment codes.” In socialist countries (such as the People‟s Republic of China and Vietnam) which only allow investments in form of joint ventures, the regulations are usually called “joint venture laws.” The purpose of these laws is the erection of a legal framework that will attract and put to work foreign capital … While the form that investment regulations take arises from country to country and the underlying purpose of the regulations are generally the same worldwide. These include (a) promoting local productivity and technological development, (b) encouraging local participation, and (c) minimizing foreign competition in economic areas already well served by local businesses.

It is trite to say that there is no single framework that has proved to be all embracing without taking into considerations, the varied socio-economic factors of each state and its people.

Professor Sornarajah in his book titled “The International Law on Foreign Investment”¹⁰ dwelt so much on this area of the law. In the book, there was no where the promotion and protection of foreign investments through legal framework was given a chapter. Although there were sporadic mention of the promotion and protection of foreign investments through the legal framework, this was not adequately tackled. A research work of this nature would be desirable so as to address the missing materials.

The works of Wolfgang Friedman^[10] has equally contributed in no small measures in the area of foreign investment and international law. One basic problem of this great scholar‟s works in this perspective is the fact that recent legislative, investment and international trade codes have not being embodied into these works.

There have equally being some indigenous texts in Nigeria dealing with foreign investment laws and practice. The works of the learned Ajomo in “Regulation of Trade and Investment in an Era of Structural Adjustment: The African Experience”^[11] and “New Dimensions in Nigerian Law” ^[12] are some of the materials that are readily available in respect of the subject matter of this research work. However these works are not all encompassing because they did not examine the legal framework regulating foreign investment in Nigeria.

Professor Osita Eze^[13] is another Nigerian author that has equally written vastly on this area of the law specifically the area dealing with investment laws and transfer of technology. But just like the other texts or materials earlier on mentioned, the non- examination of the basic legal frameworks make these materials not to be comprehensive enough. But taking a look at the work under reference, it would be observed that a lot of changes have taken place within the country‟s socio-economic laws and policies.

Dr. Kachikwu‟s work titled “Nigeria Foreign Investments Law and Policy”^[14][15] is another indigenous work in the area of foreign investments law and policy in Nigeria. This text was published in the year 1988 which is about twenty years to the date of this present research. Even though some basic legal frameworks were considered within the contemporary Nigerian context, the fact that several legislations have emerged after the publication of this work makes the work not to be comprehensive enough.

The work of Professor Olufemi¹⁶ represents another scholarly contribution in this area of discussion. Just like the problems associated with most of the texts and materials referred to earlier, this work has not provided the nexus as far as normative and regulatory foreign investment policies and legal framework that contemporary Nigeria desires is concerned. These texts have not only being restrictive in dealing with the subject of this research work but also not comprehensive enough with up-to-date legislative enactments and foreign investment laws and practice.

In Adamu‟s (2004)^[16] opinion, direct investment implies provision of capitals from a foreign nation in shares or any other equity, securities or corporate entities, which could be in form of foreign direct investment of the host nation. This work dwelt more on economic indices and did not make reference to the relevant laws that encourage foreign Direct Investment in Nigeria.

Empirical results on the complex series of connection between Foreign Direct Investment and economic growth have been a recurring subject of debate. One of the earlier studies was Voivodas (1973), ^[17] who investigated the relationship between exports, foreign Capital Inflow and the rate of growth in domestic product. This work did not discuss the legal framework for the promotion of Foreign Direct Investment in Nigeria and focused more on economies of developed countries.

Blejer and Khan (1984),^[18] in their empirical studies of foreign capital flow to developing countries, indicated that changes in output are the most important determinations of private foreign capital flow. However, Serven, (1992)²⁰, recognized the sensitive of investment to cyclical variations in output, suggesting that a short-term recession may have long-term effects by causing a deep investment slump that permanently traps the economy in a low – growth, low-investment equilibrium.

The above mentioned publications are not indigenous and so have not taken into consideration many socio-economic factors like governmental policies, new legislative or legal regime of Nigeria and other third world countries before arriving at some of their conclusions or proffering some of the solutions contained therein the said papers. The publication has equally not taken into consideration recent legislative enactments both within the municipal and international law framework and context.

Oyaide (1977) ^[19] study the role of direct foreign private investment (DFPI) in the economic development of Nigeria. Using indexes of dependence and development as parameters of Nigeria‟s economic dependence and development, he suggested that studies on the role of foreign investment in host countries should entail time series analysis of specific features of the host countries and of technology by which (DFPI) reveals it‟s most important effects as a means of delineating the need and proper use of foreign investment in economic growth. He concluded that DFPI caused both economic dependence and development. This work did not specifically mention the legal instruments that encourage economic vide Foreign Direct Investment.

Eke et al. (2003)²² in their study used causality test to analyze the impact of FDI on economic growth in Nigeria. They investigated the causal test from foreign private investment to GDP and causality test from GDP to foreign private investment. The results indicate that causality runs in both directions. They concluded that foreign direct investment is relevant and also a significant determinant of real development in Nigeria. This work dwelt on the economic parameters for Foreign Direct Investment and did not discuss the instruments that provide the backbone for such growth.

In a survey of African countries Dupasquier, and Osakwe (2006) ^[20] identified poor corporate governance, unstable political and economic policies, weak infrastructure, unwelcoming regulatory environments and global competition for FDI flows as impediments standing in the way of attracting significant FDI flows. This corroborates the findings of Jerome and Ogunkola (2004)^[21] which assessed the magnitude, direction and prospect of FDI in Nigeria. The authors ascribed the low level of FDI in Nigeria to deficiency in the country’s legal framework concerning corporate law, bankruptcy and labour law, in addition to institutional uncertainty. The above works did not elaborate on the legal framework that would address the problems militating against Foreign Direct Investment in Nigeria.

In his study of the determinants of FDI in Nigeria, Anyanwu (2011)^[22] identified change in domestic investment, change in domestic output or market size, indigenization policy and change in openness of the economy as major determinants of the FDI. He further noted that the abrogation of the indigenization policy in 1995 encouraged FDI inflow into Nigerian and that effort must be made to raise the nation’s economic growth so as to be able to attract more FDI. Much as this literature comprehensively attempted to x-ray the factors responsible for the growth of Foreign Direct Investment in Nigeria, it did not make explicit analysis of the role to be played by the legal framework in determining this economic growth.

This research work would provide those missing links in order to give a comprehensive outlook to the general legal framework with clear intent and purposes desired of being achieved in this research work.

 

1.8          ORGANISTIONAL LAYOUT

This thesis comprises of five chapters. Chapter one deals with the general introduction of the work and consists of background of the study, statement of research problems, objectives and scope of research, justification for the research, research methodology and literature review.

Chapter two deals with the definition and history of foreign investment in Nigeria and also an analysis of the Nigerian perspective on foreign investment.

Chapter three deals with the break down of International Investment Law.

Chapter four deals with the sectoral analysis of foreign investment and appraisal of the privatisation programme and investment trends in Nigeria. While chapter five deals with the international legal perspective on foreign direct investment in Nigeria.

Chapter five deals with the conclusion, which includes the summary of the study, findings and recommendations on how promotion of foreign investment will be accelerated.

 

 

[1] The literature on the international law of foreign investment is quite extensive, but a few works stand out for their scope and effectiveness in providing a broad coverage of the whole field. See generally Rudolph Dolzer & Christoph Schreuer, Principles of International Investment Law, 2nd ed (Oxford: Oxford University Press, 2012); Muthucumaraswamy Sornarajah, The International Law on Foreign Investment, 3rd ed (Cambridge: Cambridge University Press, 2010); Surya P Subedi, International Investment Law: Reconciling Policy and Principle, 2nd ed (Portland: Hart, 2012); Andrew Newcombe & Lluís Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Alpen on the Rhine: Kluwer Law International, 2009).

[2] UNCTAD (2015, p. 127).

[3] See Sornarajah (2011, p. 640).

[4] UNCTAD (2015, p. 124).

[5] See for example Fakes v Turkey, Award, 12 July 2010 (ICSID Case No ARB/07/20) para 11.

[6] Quoting from Avery (2000).

[7] See Sattorova (2015).

[8] (London: Stevens & Sons Publishing Co Ltd. 1979) at p. 25.

[9] International Business Law (Text, Cases and Readings) New Jersey: Prentice-Hall Inc. 1993. ¹⁰ (Cambridge: Grotius Publications, Cambridge University Press, 1994).

[10] Multilateral Investment Insurance and Private Investment in the Third World (Frankfort: Institutfur Wirschafts-Forschuny, 1984). See also the works of Woster.

[11] Ajomo, M.A. et al (ed) Regulation of Trade and Investment in an Era of Structural Adjustment: New Dimensions in Law (Lagos: Nigerian Institute of Advanced Legal Studies, 1995).

[12] Ajomo, M.A. (ed) (Lagos: Nigerian Institute of Advanced Legal Studies, 1989).

[13] “Transfer of Technology to Developing Countries” in Aguda, T.A. (ed) New Trends in International Commercial Law (Lagos: Nigerian Institute of Advanced Legal Studies, 1986) pp. 81-92.

[14] (Lagos: Mikzek Law Publications, 1988). ¹⁶ “Economy of Private Investment Policy in Nigeria”. The Journal of Modern Studies (1972) Vol. 10, p.

[15] .

[16] Adamu I (2004). An Appraisal of the Legal Framework for Foreign Investment in Nigeria. Modern Practice J. Fin. Invest. Law, 8(1&2): 128–159.

[17] Voivodas, C.S., 1973. Exports, foreign capital and economic growth. J. Int. Econ., 3(1).

[18] Blejer, M.I. and M.S. Khan, 1984. Government policy and private investment in development countries IMF Staff Papers. 31 June, pp: 309-408. 20

Serven, L. and A. Salimano, 1992. Private investment and macroeconomic adjustment: A Survey. World Bank Observer, 7(1).

[19] Oyaide, W.G., 1977. The Role of Direct Foreign Investment: A case study of Nigeria, 1963-1973. United Press of America, Washington D.C. 22

Eke, N.A., et al., 2003. Foreign Direct Investment and Economic Growth in Nigeria. A causality test. J. Econ. Soc. Stud,Vol:3.

[20] Dupasquier, C. & Osakwe, P.N. (2006). Foreign Direct Investment In Africa: Performance, Challenges, and Responsibilities. Journal of Asian Economics 17 241–260.

[21] Anyanwu, J. C. (2011), Determinants of Foreign Direct Investment Inflows to Africa, 1980-2007, Working Paper Series N° 136, African Development Bank, Tunis, Tunisia.

[22] Anyanwu, J. C. (2011), Determinants of Foreign Direct Investment Inflows to Africa, 1980-2007, Working Paper Series N°  136, African Development Bank, Tunis, Tunisia.