Introduction
What actually gave rise to the arbitral award that precipitated the grant of the ex-parte order in the first place? What are the facts of the case? This is what this article seeks to explore. Before that, it would be prudent to first take a peek at the China – Nigeria Bilateral Investment Treaty which is the fulcrum of the arbitral proceedings against Nigeria.
How did we get here? The China – Nigeria Bilateral Investment Treaty
This agreement was entered between the two countries (Governments of the Peoples’ Republic of China and the Federal Republic of Nigeria – Contracting Parties) for the Reciprocal Promotion and Protection of Investments in both States (hereinafter “BIT”).
For the purpose of the agreement, Article 1 of the treaty set out the definition of terms. In this regard, Article 1 (1) defined investment to mean every kind of asset invested by the investors of one contracting party in accordance with the laws of the other contracting party including but not limited to movable & immovable properties, shares, debentures, stock and any other kind of participation in companies, intellectual property rights etc. By Article 1 (2), investor was defined to include nationals and companies of both contracting parties.
The contracting parties also agreed among other things that, investments of investors in either contracting party are to enjoy continuous protection in the territory of the other contracting party and subject to laws and regulations, neither contracting party is to take unreasonable or discriminatory measures against the management, maintenance, use, enjoyment and disposal of the investment by the investors of the other contracting party. As to how these investments should be treated, the parties agreed among other things in Article 3 BIT that, the investment of investors of each contracting party shall all the time be accorded , national treatment, most-favoured-nation treatment, and fair and equitable treatment in the territory of the other contracting party.
