Thesis investment law

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Thesis investment law

Introduction The Federal Government of Nigeria recently passed the Nigerian Oil and Gas Industry Content Development Act "NCA" into law with Thesis investment law objective of fostering the development of indigenous service providers and utilization of Nigerian goods thereby creating economic linkages between the oil and gas industry, which had hitherto functioned as an enclave economy, and the wider Nigerian economy.

National Treatment Standard in International Law In order to facilitate and protect foreign direct investment "FDI" and enhance the protections which may be available under national law, a number of standards or measures have evolved and have become an intrinsic element of several trade and investment treaties whether bilateral or multilateral.

Thesis investment law

These standards include the most favoured nation "MFN" standard1, the fair and equitable treatment "FET" standard2, and the national treatment "NT" standard derogation from which would give rise to liability and may trigger international dispute resolution mechanisms outside of the municipal judicial system and the uncertainties which may be associated with submission to its Thesis investment law.

It has been argued that whilst national treatment obligations may be seen as providing formal equality of foreign and national investors, where a treaty has been entered between countries which are not on the same development level, the national treatment obligations ignore the reality of "economic asymmetry", which may result in stronger foreign enterprises impeding the development of the weaker national firms.

These provisions refer to local content obligations14, which are thus prohibited by these rules. In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

Under the GATS arrangements, the national treatment obligations of each country are determined by the commitments made in its country schedules. The national treatment obligations under Nigeria's BITs are quite similar and are likely to be interpreted to convey like benefits to the investors of the relevant countries as that given to Nigerian investors.

Key distinctions arise in relation to the exceptions to the national treatment provisions in the German BIT, which has the effect of excluding the applicability of national treatment in order to facilitate economic development. This provides a significant exception for Nigeria, where the need arises.

The effect of the majority of these clauses is that Nigerian investors are not to be accorded preferential treatment in relation to their investments over the nationals of the BIT countries. In the position that they are, liability would arise for Nigeria, where a dispute is referred to international arbitration.

Does it breach its National Treatment Obligations? Definition The NCA defines Nigerian content as "the quantum of composite value added to or created in the Nigerian economy by a systematic development of capacity and capabilities through the deliberate utilization of Nigerian human, material resources and services in the Nigerian oil and gas industry The objective of the Act is to increase the level of Nigerian content in the oil and gas industry.

These instruments include the requirements of: A Nigerian company is a " The Act does not define the term "exclusive consideration", but its use suggests that only Nigerian companies or nationals who demonstrate the qualities indicated in Section 3 2 of NCA would be allowed to bid with respect to certain services.

It may be reasonably suggested that this obligation requires that in seeking to award oil blocks etc, the national authorities must initially look to Nigerian operators and only in the position that they do not fulfil the conditions specified by the minister or are unwilling or unable to take up these acreages, would foreign oil and gas operators be called upon.

Again "full and fair opportunity" is not defined, however in practice, it would require that Nigerian companies are given adequate notice of tenders and have access to the necessary information required to bid as their foreign counterparts would.

This in itself does not appear to be a discriminatory measure and only seeks to ensure that Nigerian companies are treated in an equitable manner. In particular, the requirements for exclusive consideration of Nigerian service providers in land and swamp operating areas; first consideration for Nigerian goods and services in the Nigerian Content Plan, as well as for Nigerian operators in the award of licences and permits; are not compatible with Nigeria's NT obligations in international treaties.

In our view, the requirements for "full and fair opportunity" for Nigerian goods and services as well as the provisions in relation to labour and research do not conflict with the national treatment obligations discussed above.

The provisions in relation to services also appear to be incompatible with Nigeria's national treatment obligations under GATS. Once a dispute is brought by a WTO country member, a panel would be set up to settle the dispute.

The remit of the panel is to examine whether the measures complained of are in conflict with a WTO agreement and where this is found to be the case, it would so declare and may recommend steps to be taken to bring them into conformity.

Such recommendations may include requiring the offending member country to change or repeal the offending measure.

In this regard, where all or any of the local content instruments discussed above are found to breach WTO rules, Nigeria may be required to amend or repeal these obligations.the main focus, issues, and structure of the thesis, the methodology of the study and the reason for conducting this study, an executive summary for each chapter is provided at the end.

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Legitimacy of International Investment Law?, 9 Chi J. Int’l L , –78 (). 2 There is a great deal of concern about regulatory “chill” effected by international investment agreements, but documented instances are rare.

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