Analysis

In this brief post, I want to make sense of Prabhash Ranjan’s brief critique of TWAIL perspectives on international investment law. My main aim is not to mount a defense of TWAIL project(s) on investment law because that might be done more eloquently by others. Instead, I want to make some brief comments about the political valence of, and the assumptions behind, the reservations that Professor Ranjan articulated in this post, and which also appear in his recent book on India and Bilateral Investment Treaties.

It is trite to mention that the benefits and costs from trade expansion may never be evenly distributed across ACs. However, the estimated revenue loss should not be considered as an absolute loss for ACs as the long-term benefits, facilitated by adjustment support remain significant. It will allow comparative advantage to thrive, thereby granting customers and firms access to cheaper products/raw materials in the continent.

States could rely on secondary rules on State responsibility to defend preventative measures relating to COVID-19, yet their successful invocation depends on satisfying several conditions set out in the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, a discussion of which is beyond the scope of this post. Meanwhile, the applicability of the doctrine of margin of appreciation, developed by the European Court of Human Rights, to the claims arising under BITs has been accepted, justifying why investment tribunals should pay deference to governmental judgments of national requirements in the protection of public health when the “discretionary exercise of sovereign power, [is] not made irrationally and not exercised in bad faith”

Nigeria, similarly, must now contend with a whole range of issues discussed at the CLRNN. These issues demand attention in order to advance objectives of furthering social and economic development. Reducing legal uncertainty and unleashing the power of Nigerian enterprise to more efficiently tackle its’ own challenges is a matter of the highest concern; in this way Nigeria can genuinely become the economic powerhouse it seeks to be, for Africa, and the world.

While the Nigerian Office for Trade Negotiations (NOTN) 2017 Nigerian Annual Trade Policy Report (NAPTOR) was an excellent step in the right direction, it is not enough. As such, in the spirit of the legal reform proposals that the CLRNN inaugural conference demanded, I urge the Nigeria government to develop and adopt a coherent and robust regional trade policy that will be updated from time to time to reflect the realities of the day.

Under the imperialism approach transplanted commercial laws especially from countries receiving these laws from their colonial or other western metropolitan centers are viewed as aimed at securing the immediate and future commercial interests of the colonial/metropolitan empire and not the interests of the peoples of the receiving countries.

In this post, I argue that the 1991 UPOV Convention, which is the only UPOV Convention open for accession, is unsuited to Nigeria, principally because it provides a closed plant breeders rights system that favours (commercial) plant breeders, to the detriment of small scale farmers. Nigeria has over 70 per cent small scale farmers that stand to be side-lined by a UPOV-styled system. Accordingly, I urge the Nigerian Government to cease, or at the least delay, the ongoing legislative process.

Medium, small and micro enterprises (MSMEs) play a significant role in the building and sustenance of a nation's economy. Small and medium scale enterprises constitute about 80% of Nigerian businesses and therefore are very crucial to the Nigerian economy. However, MSMEs mostly depend on credit facilities to build and sustain their companies but have little of immovable assets to offer as security. Another challenge of MSMEs is poor management and governance, which also is a credit risk.

The doctrine of subrogation, a corollary of indemnity is a distinctive principle that has shaped the history of insurance contracts in common and civil legal systems. In light of the circumstances, this piece reviews two fundamental aspects and theories of subrogation which have been a subject of controversy over the years. It discusses seminal English case law that laid to rest the juridical basis of subrogation and identifies some lessons that the Nigerian regime can emulate in handling subrogation actions.

India’s experience with payment banks raises questions about how successful PSBs will be in improving financial inclusion in Nigeria. India’s experience may suggest that niche banking institutions with multiple product offerings may not successfully drive the m-payments market. MNOs are non-traditional financial institutions that may be disincentivised from investing in the m-payments market if they are subject to stringent regulations. While it is still too early to determine the impact of the new PSBs, they will likely face the same difficulties as their Indian counterparts.