This note discussed how the protection of foreign investors work with the recent investment claim by Zhongshan against Nigeria as an example. It highlighted that investment treaties and investor-State arbitration protect the interests of foreign investors and provide them the mechanism to enforce their acquired rights at the international level. More importantly, the piece argues that the investment award provides an opportunity for lessons for Nigeria, especially on the need for those that act under the mandate of the State, at any level, to be aware of Nigeria’s international obligations, including towards foreign investors and the far-reaching implications of their actions.
The international adjudication of investor-state disputes is at a crossroads. Since 2017, negotiations have been underway at UNCITRAL for the reform of the current system of dispute settlement, what is typically called ISDS. Different visions of the reformed version of ISDS have emerged. At one end of the reform pendulum is systemic reform, at the other end there is the option of incremental reform, while in the middle there is an option of a combination between incremental reform and systemic reform. Finally, there is an option to move beyond reform and dismantle ISDS.
These recent procedural and substantive trends encompassed in the WAU conference demonstrate a renewed and welcomed interest for arbitration of mega disputes in the African continent and the MENA region, both international arbitration hubs that are gaining prominence. Whilst challenges remain, biases against arbitrating disputes in these regions are being debunked by the experience of Africa and MENA with dispute resolution, the advent of institutions and “arbitration friendly” jurisprudence.