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Analysis of Foreign Investment Protection Regimes in the Petroleum Sector in Nigeria – 1995 - 2013: Options for Reform
[Thesis]. Manchester, UK: The University of Manchester; 2014.
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Abstract
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.