The definition of investment and the ICSID convention: matters arising under the Nigerian investment promotion act and international investment law

This article contends that the omission to define investment in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) has a trickledown effect on the Nigerian Investment Promotion Act (the NIPC Act), in the context of investment treaty law and arbitration. Its greatest impact is the relegation of the contribution to economic development element of the definition of “investment” to a backseat contrary to the purpose of the ICSID Convention. This article proposes a simple thesis: the omission to define investment in the ICSID Convention has fostered an amorphous definition of investment under the NIPC Act, thus creating uncertainty, irrelevance and ambiguity. The uncertainty is a potential problem in the conduct of foreign direct investment under the ICSID Convention. The article recommends a review of the definition of “investment” under the Act and the adoption of a definition that restricts foreign investment within the territory of Nigeria and makes acontribution to economic development its core element in line with the fundamental objective of the ICSID Convention.Keywords: Nigerian Investment Promotion Act, Law and Development, Investment Law and ICSID Arbitratio

A Historical Account of the Internationalization of Invest Disputes: What the Global South Should Know When Negotiating Bilateral Investment Treaties

Under international law, and perhaps in the context of the ICSID Convention, it is fair to state that; the potential for investment disputes is more likely with respect to foreign investments hosted in the global south. In most situations when investment disputes arise, foreign investors often allege that an act that includes regulatory initiatives of the host state or an omission attributable to the host state, has occasioned a violation of applicable investment agreement. Sometimes the basis for the alleged breach results from underlying contractual claims by the foreign investor. Thus, investment claims have created the intellectual foundation for a spirited debate over whether the insulation of contractual claims from treaty claims should be standardized under international investment law and arbitration. There are valid arguments on both sides of the divide. In spite of good attempts to articulate a more acceptable position on the issue, including the suggestion of an integrationist approach to reconcile the opposing propositions on this critical matter, the jury of scholars is still out on that question. Arbitral jurisprudence has provided little or no guidance on the resolution of the debate either

Endangered Element of ICSID Arbitral Practice: Investment Treaty Arbitration, Foreign Direct Investment, and the Promise of Economic Development in Host States

The omission to define the term investment in the ICSID Convention is one of the most critical decisions that has led to inconsistent jurisprudence and the resulting debate regarding the propriety of the ICSID Convention and investment treaty arbitration. The legislative history and the circumstances leading to the birth of the ICSID Convention strongly suggest that its main objective is the protection and promotion of economic development in the host State. Most of the propositions aimed at giving a meaning to the term investment in ICSID arbitral practice have focused more on whether the scope of the meaning of investment should extend to any plausible economic activity or asset. The focus of this approach is flawed. It has relegated the element of contribution to economic development of the host State to the back seat of investment treaty arbitration. This article challenges this relegation as historic to the ICSID Convention. The article argues that from the standpoint of the host State, the ICSID Convention is meaningless if the analysis of the relationship between FDI and invest-ment treaty arbitration excludes considerations of economic development in view of the omission in the ICSID Convention. The article hinges this argument on the implication of international development as the main foundation of the ICSID Convention. The article acknowledges the difficulty that may be associated with the determination of an investment that contributes to economic development, but contends that relegating the element of contribution to economic development to the back seat of investment arbitration is contrary to the main objective of the ICSID Convention in host States

A Historical Account of the Internationalization of Invest Disputes: What the Global South Should Know When Negotiating Bilateral Investment Treaties

Under international law, and perhaps in the context of the ICSID Convention, it is fair to state that; the potential for investment disputes is more likely with respect to foreign investments hosted in the global south. In most situations when investment disputes arise, foreign investors often allege that an act that includes regulatory initiatives of the host state or an omission attributable to the host state, has occasioned a violation of applicable investment agreement. Sometimes the basis for the alleged breach results from underlying contractual claims by the foreign investor. Thus, investment claims have created the intellectual foundation for a spirited debate over whether the insulation of contractual claims from treaty claims should be standardized under international investment law and arbitration. There are valid arguments on both sides of the divide. In spite of good attempts to articulate a more acceptable position on the issue, including the suggestion of an integrationist approach to reconcile the opposing propositions on this critical matter, the jury of scholars is still out on that question. Arbitral jurisprudence has provided little or no guidance on the resolution of the debate either