This thesis examines the current regulatory frameworks for foreign investment protection and reforms thereto in the petroleum sector in Nigeria. The analysis is conducted from international law perspective. Thus, the current regimes of IIAs reflected in both the substantive and procedural terms are bedevilled by unbalanced framework in the allocation of rights and duties to the contracting parties. Strictly speaking, the parties do not set out from the outset to draft an unbalanced terms of IIAs. However, the preponderant inflow of investment from the developed to developing countries almost always make the latter bear the brunt of any unbalanced prescription of the terms of the IIAs. Thus, the definitions of such substantive terms as investment, fair and equitable treatment, umbrella clause, and regulatory expropriation constitute a significant cause of concerns for economic imperatives of the capital importing countries. Similarly, the incessant lack of consideration for the regulatory and economic interest of the host state in the arbitral awards is creating concern among the capital importing countries. Consequently, a re-appraisal of existing regimes becomes necessary both in the substantive definition and the arbitral construction of these substantive terms to ensure a balance of interests in international economic relation. These substantive and procedural terms do not operate in vacuum but apply to host state like Nigeria together with other local investment regulatory rules. Although various studies establish different challenges to foreign investment in Nigeria such as, inter alia, lack of harmonised investment regimes and complicated registration procedures, one issue that is evidently less considered is the institutional influence in the implementation of investment regulation. Thus, institutional factors are the heart of Nigeria investment challenges. These institutional factors mirrors itself in poor human and social capital ratio needed for enhanced service delivery. Thus, for any meaning headway to be made in strengthening the inflow of foreign capital to Nigeria economy, tackling of other challenges is incomplete until human capital development is aligned with social capital development.

The South African Investment Climate has been developing since the dawn of democracy. The government of South Africa has entered into different BITs immediately after the end of the apartheid government. This was done as a way of attracting FDIs into the country to develop the economy and to also form relationships within the international community. Since the first BIT which was entered into in the early 1990s the South African law governing FDIs has changed tremendously and this was seen by the termination of those BITs and the introduction of new legislation governing the FDIs. The termination of the BITs was done as a way of responding to the imbalance and unfairness that was found in such BITs towards the government of South Africa. The BITs were said to provide more rights and no obligations to foreign investors and as such, they were imbalanced. This research work will therefore provide an analysis of the rights and obligations of foreign investors under the new legislation in South Africa, making reference and comparison to the previous BITs as well as looking at the regional and continental level to make comparison with the South African law so as to see if there can be a balance of rights and obligations in international investment law. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--Univesrity of Pretoria, 2021. / National Research Fund (NRF) / Public Law / LLM (International Trade and Investment Law in Africa) / Unrestricted

Corruption is increasingly playing a critical role in international investment arbitration disputes. Investors have lost rights under BITs against a State due to corruptly securing its investment. Corruption has been raised by the investor as a sword, and by the State as a shield against investor’s claims. This has raised concerns about whether international investment arbitrations and institutions should be seized with corruption matters and if so, in what form and substance. This thesis argues that the contemporary international investment regulatory regime is inadequate to combat corruption in foreign investment transactions. The main challenge with the bulk of the international investment agreements which contain anti- corruption clauses is that these provisions are couched as general principles and prohibitions, merely encouraging the host States to enact and enforce anti-corruption laws. These instruments are of less functional value to investment arbitrators when faced with allegations of corruption. It further argues that the prevailing host State’s legal mechanisms are inherently inadequate to effectively regulate and combat corruption relating to foreign direct investments, and therefore there is a need for an international intervention through international investment agreements. The situation is exacerbated by the divergent approaches taken by investment arbitrators when dealing with corruption in investment transactions. This thesis recommends the adoption of an elaborate anti-corruption clause in international investment agreements. The main contribution of this thesis is to suggest a framework for combatting corruption in investment transactions. It provides a model anti-corruption treaty clause which attempts to promote accountability of both the foreign investor and the State. This model anti-corruption clause includes guiding factors that arbitrators in the investor-State arbitration may take into account when arbitrating disputes involving corruption, so that they can meaningfully contribute towards combatting corruption. / Thesis (LLD)--University of Pretoria, 2020. / Public Law / LLD / Unrestricted

This thesis examines the treatment of tax in investor-state arbitration of expropriation and national treatment protection. The root of the study is the special characterisation of tax in the sovereignty of the state and the consequent sensitivity of states to have their tax policies being the subject of private adjudication. Tax has in the past been characterised as a non-arbitrable matter, but that is true only if states have purposefully deemed them so under the international investment treaties that they are party to. Tax is generally arbitrable under the expropriation provisions of international investment treaties, but states are seldom found liable for tax expropriation. National treatment, on the other hand, is generally not arbitrable under international investment treaties, but when an investment treaty permits the arbitration of alleged national treatment tax violations, violations are affirmed in more cases than not. The reason behind the comparable success rates is the difficulty in proving the existence of expropriation by taxation whereas national treatment tax violations are comparatively easier to substantiate. This thesis establishes what constitutes a tax expropriation, and how the success rate of claims for national treatment tax violations justifies the general exclusion of the application of national treatment protection to tax matters for sovereignty retention. In order to achieve the foregoing, this thesis examines sovereignty and the sovereign power to tax; the relinquishment of tax sovereignty under international investment treaties; the arbitrability of tax and the reasoning behind the reluctance of states to submit tax disputes to arbitration; the capability of tax to be expropriatory; the fundamentals of the expropriation standard under customary international law and international investment treaties and how they are applied by arbitral tribunals in tax expropriation claims; and the fundamentals of the national treatment protection and how they are applied by arbitral tribunals in claims for national treatment tax violations.

The birth of the SADC Tribunal marked a period of hope for human rights victims in the SADC. Initially, the Tribunal could hear commercial, labour and human rights law disputes. Individuals who no longer have hope on their national courts, could bring the complaints to the Tribunal. However, a very dramatic change took place following the challenges in the Zimbabwean expropriation of land without compensation. Following the defeat in the land grabs case, the Campbell case, instead of complying with court ruling the Zimbabwean government lobbied other SADC member states to challenge the jurisdiction of the Tribunal. This challenge to the human rights jurisdiction was calculated to render the Tribunal ineffective. The SADC states saw the Tribunal as nothing other than a monster that their sovereignty. Subsequently, the Tribunal was suspended, with the adoption of the new 2014 Protocol to the Tribunal. The new Protocol limits the jurisdiction of the Tribunal to interstate disputes only and excludes the submission of human rights complaints by individuals and entities from the region. This undoubtedly and unjustifiably deprive SADC citizens of their right of access to justice. Not only that this create a gap in the eyes of justice, it also reduces the role of the court as one of the institutions of the SADC. The Constitutional Court of South Africa has ruled that the suspension of the Tribunal and ordered the President of South Africa to withdraw from the new 2014 Protocol. This was followed by the Tanzanian High Court, which left the consideration of the signature to the new Protocol a matter of the Executive. Therefore, this writing make a case for the restoration of the SADC Tribunal. In its advocacy, this study focuses on the role played by regional courts in integration and the need of the Tribunal on human rights natters from individual complaints. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--University of Pretoria, 2021. / NRF / Centre for Human Rights / LLM (International Trade and Investment Law in Africa) / Unrestricted

The East African Community (EAC) allows its signatories to pursue and sign trade deals with nations outside the CU as long as the trade agreement does not violate the EAC Treaty. The EAC is one of eight regional groups that comprise the African Continental Free Trade Agreement's foundation (AfCFTA). All eyes are on the continent at the moment, as the race for Africa is reignited. This is why it is critical to establish a framework that will serve as the foundation for future discussions between AfCFTA partner states and third nations. Whereas ties within the EAC are already fragile, Kenya proceeded to negotiate an Economic Trade Agreement (EPA) with the United Kingdom at the expense of other EAC member states, a move criticised by both the African Union and other EAC members. The purpose of this study is to examine the legal framework that governs EAC partner state trade relations with countries that are not members of the EAC in order to identify any gaps in the existing laws. Additionally, this research investigates the provisions of the Kenya-UK agreement in order to determine the agreement's impact on the EAC. Finally, proposals are offered to enhance the community's current position, which is adapted to EAC's status as a customs union. The research's fundamental finding is that, while the community has regulations governing member states' trade dealings with third nations, there are loopholes in the legislation that must be remedied as soon as possible to avoid another member state from exploiting the lacuna. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--University of Pretoria, 2021. / Centre for Human Rights / LLM (International Trade and Investment Law in Africa) / Unrestricted

Investment is globally considered as an expeditious and sustainable method of assuring economic growth and development. The case is no different for The Gambia who has constantly made it its priority to boost its economy and improve the standard of living of its citizens. However, recent economic downturns and global economic instabilities all indicate that The Gambia could be in need of more investment inflows, if her economy is to remain afloat. One idea that has constantly challenged the validity of investment is the sacrifice the environment is made to bear for its increase. Since 2016, this conflict has been exacerbated by the numerous environmental violations committed by investors and their investments in the country. There has been a collective outcry from the communities affected by these violations and The Gambian government seems to find some difficulty in attending to the complaints of these communities as well as pursuing its desire to increase investment inflows. This research therefore aims to discuss the need to balance investment and environmental protection. To achieve this, it specifically focuses on The Gambia’s investment and environmental regimes and examines the ways by which the government can address this conflict. The paper commences by looking into the evolution of both fields and picks out the global attempts that have been made to reconcile the two. It then analyzes the domestic and regional environmental protection regime of The Gambia and assesses its effectiveness in dealing with environmental violations committed by investors. The research further digs into the investment agreements signed by The Gambia and examines whether and how they address environmental and sustainable development considerations. In doing this, it also provides a general overview on how regional and international tribunals view environmental provisions particularly with respect to investment agreements. Finally, this research concludes by proposing recommendations on how The Gambian Government can better balance the two fields as opposed to being placed in a position of choosing one or the other. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--University of Pretoria, 2021. / Centre for Human Rights / LLM (International Trade and Investment Law in Africa) / Unrestricted

archives@tulane.edu / International conventions do not set down rules on state immunity and leave it to national courts to decide the nature and scope of state immunity. The inevitable result of this state-centrist approach is the evolution of divergent views among states on the reach of state immunity. In the early years of international relations, the accepted view was that states enjoyed absolute sovereign immunity and that as a result no state, without its consent, was subject to the national jurisdiction of another state. Gradually many states, mainly through judicial decisions, moved towards a qualified doctrine of immunity enabling a degree of submission by one state to the jurisdiction of another. This restricted view of sovereign immunity was prompted by the changing nature of socio-economic and political circumstances, with states taking an increasingly felt presence in trading and commercial activities. It is generally the developed countries that were eager to embrace the restrictive view of state immunity, which enabled their nationals to press claims against errant foreign states. Naturally, the developing countries tended to favor the absolute doctrine of state immunity, in order to resist claims, however well founded, made against them. Today, most developing countries still insist on absolute state immunity. While not yet codified in an international convention, the doctrine of state immunity has found its way into customary international law. In identifying and interpreting international customary law of state immunity, national courts frequently refer to and follow judicial decisions of foreign jurisdictions. This practice enables states to learn from different legal techniques and criteria that are used in other jurisdictions to demarcate the scope of the doctrine of state immunity. An area where states have reached some common understanding is the enforcement of arbitral awards—imposing measures of constraint against state assets. While judicial enforcement of arbitral awards is the much preferred and most prevalent means of subjecting state assets to seizure or attachment, there are some notable non-judicial remedial measures which may aid the aggrieved investors in satisfying their claims against state parties to a dispute. These non-judicial means of relief rely on the willingness of the investors’ parent state to pursue their cause with the recalcitrant state. The parent state’s willingness is dictated by political considerations in contrast to non political nature of judicial proceedings. It is commonly agreed that an independent judicial process is much preferable to politically motivated non-judicial avenues of relief. As such, attention of judges, scholars and lawmakers must focus on refining judicial processes and building effective enforcement mechanisms. This calls for widely agreed principles of state immunity and a commonly shared enforcement mechanism. Having identified problems arising from a lack of universal agreement on state immunity and the diversity and, more dishearteningly, the inadequacy of forms of enforcement available to an aggrieved claimant, this thesis proposes that the international community must work towards the setting up of a central enforcement agency, a functional model of enforcement. This thesis suggests that the central mechanism of enforcement could be set up through reaching an international treaty or convention or modifying the existing mechanisms. / 1 / Zixin Meng

Depuis la réforme économique et l’ouverture de la Chine en 1978, l’économie chinoise s’est développée rapidement. Les investissements étrangers ont joué un rôle essentiel dans le développement économique chinois. La Chine est devenue la deuxième puissance économique du monde. Ce résultat positif est basé sur les avantages fiscaux aux investissements étrangers et la faiblesse du coût du travail. Aujourd’hui, ces avantages sont de moins en moins importants. Un investisseur étranger attache plus d’importance à l’environnement juridique qu’au coût du travail et aux avantages fiscaux. Suite à la perte progressive des avantages politiques et ceux du marché en Chine, la concurrence sur l’environnement de l’investissement, notamment sur l’environnement juridique de l’Etat d’accueil, va devenir une mesure importante pour attirer les investissements étrangers. Aussi l’ajustement du système du droit chinois de l’investissement est nécessaire et urgente. Le droit de l’investissement étranger contient deux aspects: la protection et la restriction de l’investissement direct étranger. Un système parfait du droit de l’investissement implique un juste équilibre entre ces deux aspects. Dans cette thèse, nous voulons nous pencher sur le droit français et le droit international afin d’analyser la relation entre la restriction et la protection de l’investissement direct étranger en droit chinois. Nous ne nous proposons pas, dans cette thèse, de recouvrir tous les domaines du droit de l’investissement en Chine. Nous entendons plutôt préciser l’influence de certains facteurs les plus importants en la matière. / Since the economic reform and opening of China in 1978, Chinese economy continued to grow at a rapid pace. Foreign investment has played an important role in China’s economic development. China has become the second largest economy in the world. This positive result is based on the tax benefits of foreign investment and low cost of labor. Today, these benefits are less important. A foreign investor attaches more importance to the legal environment than labor costs and tax benefits. Following the gradual loss of political advantage and market in China, the competition in the investment environment, including the legal environment of the host country, will become an important measure to attract foreign investment. Also adjusting the system of the Chinese investment law is necessary and urgent. The law of foreign investment has two aspects: the protection and restriction of FIE. A perfect system of investment law implies a balance between these two aspects. In this thesis, we want to study the French law and international law in order to analyze the relationship between the restriction and protection of FIE in Chinese law. We do not propose, in this thesis, covering all areas of the investment law in China. Instead, we wish to clarify the influence of some of the most important factors in the matter.

The minimalist state of the national treatment provision in the investment treaties has provided limited guidance for the tribunals for interpretation. As a result, there were inconsistencies in the interpretation of national treatment, in particular the question of likeness. This thesis aims to develop the doctrinal understanding of the determination of appropriate comparator guided by the underlying philosophies, historical evolution and relevant investment decisions. The methods applied in this thesis are doctrinal and comparative studies of international investment law and the compared jurisprudences. A major part of this thesis is dedicated to examine the comparison and relevance of the GATT/WTO, EU and international human rights law in the interpretation of discrimination based on nationality. The interpretative methods applied by the respective jurisprudences in determining likeness and related questions of legitimate regulatory measures are examined to see whether there are lessons that could be learnt in the interpretation of national treatment in investment law. The finding of this thesis confirms that there is potentially a range of insightful guidance from the jurisprudences under comparison which could provide a structured understanding of national treatment in international investment law. The observations put forth highlight the underlying philosophies and values of the national treatment principle in protecting the investors and addressing the host states’ regulatory needs. It reflects the contemporaneous development in international investment law and provides a positive response to public administrative principles benefited by way of international comparative administration law.