Fair and Equitable Treatment

As observed by the International Energy Agency’s most recent World Energy Outlook, the Covid-19 crisis has underlined the importance of a reliable, affordable and secure electricity supply that is able to accommodate sudden changes in behaviour and economic activity, while continuing to support vital services. The electricity sector will play a key role in supporting economic recovery, and an increasingly important long-term role in providing the energy that the world needs, as it evolves into a system with lower CO2 emissions and enhanced flexibility.

Private investment is at the centre of Japan’s current Africa policy that aims to amplify its economic diplomacy in Africa, offsetting the increased Chinese presence in the continent mainly through sovereign investments. This has made the promotion of Japanese private investments in Africa a “strategic priority of Japan”, whose political impetus in this respect clashes with the economic interests of “risk-averse” Japanese investors. Accordingly, the protection of private investments has come to the fore hastening the Afro-Japanese BIT programme remained idle for decades.

The book provides useful knowledge of aspects of IIL and clearly contributes to the field. It seems to map the field in a way that can generate interest in undertaking a more detailed and rigorous examination of some issues raised in the application of rules and principles of IIL in a variety of settings. Invariably some issues have been covered in more depth than others. In addition to the consideration of regional instruments, there are some comparative references between countries such as Nigeria, United Kingdom and the United States. To understand the book’s mission and contributions, it is important to explore the contents of its chapters.

As the author explains in the foreword, this book intends to explore the principles, policies and practice in international investment law across the world and to foster greater study interests of students in the field. Unlike other textbooks that focus solely on investment protection in international law, this book brings an under-explored perspective from developing countries, in particular from Nigeria.

In this book, the author took the interdisciplinary approach to explore the application of the FET clause in the IIAs between developed and developing countries as well as its subsequent effects on the socio-economic context of the developing state. The main aim of this book as stated in p. 171 is to re-conceptualize the FET clause from the perspective of the host States with comprehensive consideration of their social, political, and economic conditions.

Probably buoyed by its relatively open-ended nature, the fair and equitable standard (FET) of protection of foreign investors has become a much more invoked arsenal than the claim of direct or indirect expropriation. As Professor Sornarajah notes in his foreword to the book, very few scholars have dealt with the impact that the relatively opaque, if not expansive interpretations of the FET standard by arbitrators has had on the host States, particularly those from the global South. Professor Rumana Islam’s work is a notable exception to this.

The book flees from a Manichean vision of international investment law. It is not written against foreign investors and in favor of developing States. With a scientific caution, the author reflects on how bridges can be built between these two actors with the aim of upholding development priorities without undermining investors’ protection — thereby hinting at a fair and equitable treatment for host developing States

The overarching argument made in the book is that there is a pressing need to reconceptualize the interpretation of the FET standard, taking into account the particular developmental circumstances of the developing countries in investor-State disputes. The book explores these challenges and issues that the developing countries face arising from overly broad interpretations of the FET standard.

A request for the institution of arbitration proceedings against the United Republic of Tanzania (“Respondent”) was registered by the International Centre for Settlement of Investment Disputes (ICSID) Secretary General on October 5, 2020. This request was made by Nachingwea U.K. Limited (UK), Ntaka Nickel Holdings Limited (UK) and Nachingwea Nickel Limited (Tanzania) (“Claimants”). The claimants invoked the 1994 Bilateral Investment Treaty (BIT) between United Kingdom of Great Britain and Northern Ireland, on the one hand, and Tanzania, on the other.

This article aims to demonstrate that the Interocean case is a paradigmatic decision, testing the limits of the Nigerian Foreign Investment Framework. The analysis concludes with tactical considerations regarding the designation of the State as well as its National Oil Company ("NOC") in ICSID proceedings. It concludes that the Interocean case has paved the way for shareholder disputes in oil and gas to be heard in Nigerian Courts.