(iv) hold, upon request by that other Member State, consultations in good faith with that other Member State with a view to achieving mutual satisfaction; and
(v) take an appropriate action based upon the written comments made pursuant to subparagraph (iii) of this paragraph or the results of the consultations held accordingly.
(4) Financial and Prudential Measures
(i) A Member State may take reasonable measures for prudential reasons to:
(a) protect investors, depositors, financial market participants, policy-holders, policy claimants, or persons to whom a fiduciary duty is owed by a financial institution;
(b) maintain the safety, soundness, integrity or financial responsibility of financial institutions;
(c) ensure the integrity and stability of a Member State's financial systems; and
(d) enhance Balance of Payments situations.
(ii) Nothing in this Code shall apply to non-discriminatory measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies.
(5) Mutual Recognition
(a) A Member State may by agreement or arrangement, recognize a certificate, qualification, diploma or experience from another Member State or third country, in any area of service delivery.
(b) An existing agreement or arrangement for the recognition of certificates, qualifications, diplomas or experiences, between two or more member States or a third country, shall not extend to another Member State.
(c) A non-contracting party to an existing agreement or arrangement, for the recognition of certificates, qualification or experience, may accede to such existing agreement or arrangement for the mutual recognition of certificates, qualifications, diplomas or experience within the Community.
(d) Nothing in 9 (a) to (c) above shall prevent member states from taking concrete steps towards the harmonisation of standards for the recognition of certificates, qualifications, diplomas and experience in the Community, in accordance with the objectives of this Code.
(e) Member States shall not apply discriminatory measures in the application of standards for the recognition of certificates, qualification, diplomas or experience from other Member States
Article 10. Treatment In Case of Armed Conflict or Civil Strife
Investors who suffer within the territory of a Member State damage in relation to their investments owing to the outbreak of hostilities or a state of national emergency such as revolt, insurrection or riot, shall be accorded treatment no less favourable than that accorded to investors of such Member State or to investors of any third country in like circumstances, as regards to any measure to be taken by the concerned Member State including restitution, compensation or other valuable consideration.
Article 11. Expropriation and Compensation
1. No Member State shall expropriate or nationalise an investment in its national territory, except:
(a) for a public purpose;
(b) on payment of prompt, adequate and effective compensation; andig, (c) in accordance with due process of law. il
2. Compensation shall:
(a) be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (the date of expropriation);
(c) not reflect any change in value occurring because the intended expropriation had become known earlier; and
(d) be fully realisable and freely transferable.
3. Compensation awards that are significantly burdensome on a Member State may be paid under periodic instalments as agreed by the Parties, subject to simple interest at the rate agreed by the parties or through mediation and or judicial process
4. If the fair market value is denominated in a freely usable currency, the compensation paid shall be no less than the fair market value on the date of expropriation, plus simple interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.
5. lf the fair market value is denominated in a currency that is not freely usable, the compensation paid, converted into the currency of payment at the market rate of exchange prevailing on the date of payment, shall be no less than:
(a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date; plus
(b) interest, at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment.
6. Where appropriate, the assessment of fair and adequate compensation shall be based on an equitable balance between the public interest and interest of those affected, having regard for all relevant circumstances and taking account of: the current and past use of the property, the history of its acquisition, the fair market value of the investment, the purpose of the expropriation, the extent of previous profit made by the foreign investor through the investment, and the duration of the investment.
7. This Article shall not apply to the issuance of compulsory licences granted in relation to intellectual property rights in accordance with the relevant international agreements on intellectual property, or to the revocation, limitation, or creation of intellectual property rights to the extent that the issuance, revocation, limitation, or creation is consistent with the relevant international agreements on intellectual property.
8. For greater certainty, a Member State's decision not to issue, renew, or maintain a subsidy or grant, or its decision to modify or reduce a subsidy or grant:
(a) in the absence of any specific commitment under law or contract to issue, renew, or maintain that subsidy or grant;
(b) in accordance with any terms or conditions attached to the issuance, renewal, modification, reduction, and maintenance of that subsidy or grant,
standing alone, does not constitute an expropriation.
Article 12. Transfer of Funds
(1) Types of Transfers Covered
Member States shall permit all transfers relating to an investment to be made freely and without delay. Such transfers may include:
(a) profits, capital gains, dividends, royalties, interest and other current income accruing from an investment;
(b) the proceeds of the total or partial liquidation of an investment;
(c) repayments made pursuant to aloan agreement in connection with an investment;
(d) license fees in relation to investment ;
(e) payments in respect of technical assistance, technical service and management fees;
(f) payments in connection with contracting projects ;
(g) earnings of nationals of a Member State who work in connection with an investment in the territory of the other Member State ;
(h) compensation, restitution, indemnification or other settlement pursuant to the investments.
(2) Capital Importation
(a) Investment funds may be imported into the Community through any licensed financial institution in a Member State who shall issue a certificate of capital importation to the investor within the time prescribed in national laws.
(b) The certificate of capital importation shall be registered with the appropriate regulatory authority for financial institutions in the Member State.
(3) Nature of the Obligations
(a) Each Member State shall permit transfers to be made in a convertible currency at the market rate of exchange prevailing on the date of transfer.
(b) Unless otherwise agreed by the investor, transfers shall be made in any convertible currency at the rate of exchange applicable on the date of transfer pursuant to the exchange regulations in force.
(4) Exceptions
(a) Capital can only be transferred two years after the investment entered the territory of a Member State unless its national legislation provides for a more favourable treatment.
(b) Proceeds of the investment can only be transferred one year after the investment entered the territory of a Member State.
(c) Notwithstanding paragraphs 1, 2 and 3, a Member State may prevent or delay a transfer through the equitable, non-discriminatory, and good faith application of its national laws relating to:
(i) bankruptcy, insolvency, or the protection of the rights of creditors ;
(ii) issuing, trading, or dealing in securities, futures, options, or derivatives ;
(iii) criminal or penal offences ;
(iv) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(v) ensuring compliance with orders or judgments in judicial or administrative proceedings.
(d) A Member State may adopt or maintain measures not conforming with its obligations relating to cross-border capital transactions:
(i) in the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(ii) in cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.
(e)Measures referred to in paragraph (d) above shall: (i) not exceed those necessary to deal with the circumstances set out above; (ii) be temporary and be eliminated as soon as conditions permit;
(iii) be as approved by the ECOWAS Common Investment Market Council (ECIM Council), and
(iv) be promptly notified to the affected Member State.
Article 13. Denial of Benefits
1. A Member State may deny the benefits of this Code to an investor of another Member State that is an enterprise of such Member State and to the investments of such investor in the event that investors of a non-Member State own or control such enterprise, provided that the denying Member State adopts or maintains measures with respect to the non-Member State that prohibit transactions with such enterprise, or that otherwise would be violated or circumvented if the benefits of this Code were accorded to that enterprise or to its investments.
2. A Member State may deny the benefits of this Code to an investor of another Member State that is an enterprise of such Member State and to investments of such investors if investors of a non-Member State own or control the enterprise and the enterprise has no substantial business activities in the territory of the Member State under whose law it is constituted or otherwise organised.
Article 14. Subrogation
If a Member State, or any agency, institution, statutory body or corporation designated by the Member State, makes a payment to an investor of the Member State under a guarantee, a contract of insurance or other form of indemnity that it has entered into with respect to an investment, the other Member State in whose territory the investment was made shall recognise the subrogation or transfer of any rights the investor would have possessed under this Code with respect to the investment but for the subrogation, and the investor shall be precluded from pursuing these rights to the extent of the subrogation.
Article 15. Transparency
(1) Governmental Information
(a) A Member State shall endeavour to ensure that its laws, policies, regulations, procedures, administrative rulings and judicial decisions of general application, as well as international agreements after their entry into force, which may affect investments in its territory, including among others, exchange regimes and those of fiscal nature, are promptly published, or otherwise made publicly available. Such information shall be regularly updated and published at least annually.
(b) A Member State shall provide to the other Member State aggregated information on foreign investment and investment opportunities in its territory with respect to origin, economic activities benefited, investment modalities and other information which may be available.
(c) Upon request of an investor, a Member State shall provide information to enable investors to fully assess the legal status of investment assets.
(d) A Member State shall designate a contact point or points to facilitate communications between the Member States on any matter covered by this Code.
(2) Corporate Information
Member States have the right to seek information from a potential investor or its home state about its corporate governance history and its practices as an investor in its home state or in a third country. Member States oblige themselves to protect confidential business information they receive in this regard.
(3) Exchange of Information
(a) A Member State shall upon request by another Member State, promptly respond to specific questions and provide that other Member State with information on matters set out above.
(b) The provisions of paragraph (a) of this Article shall not be construed so as to oblige a Member State to disclose confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice privacy or legitimate commercial interests.
(4) Duty to Disclose Investment Information
(a) As and when prescribed by the ECIM Council, investors shall make available to the public in the Member State where they are operating information relating to payments made to the Member State's public authorities, including taxes, royalties, surcharges, fees and all other payments relating to the investment contract or agreement.
(b) Information related to any investment contract or agreement involved in the investment authorization process shall also be made available to the public, subject to the protection of confidential business information.
(5) Answering Requests for Information
An investor shall provide such information to a Member State concerning the investment in question for purposes of decision-making in relation to that investment or solely for statistical purposes.
(6) Notification Requirements
a) An investor or a Host State may request a review of an investment agreement on terms that are mutually agreed by parties;
b) An investor shall comply with such audit as may be requested by a Host State in order to ascertain compliance with the terms of the investment agreement;
c) An investor shall not, without prior consultation with the Host State, fix or alter the prices of products or services in sectors identified by that Member State to be critical to economic and social development.
(7) Confidentiality
(a) Member States shall protect any confidential business information from any disclosure that would prejudice the investor or the investment.
(b) Nothing in paragraph (a) above shall be construed to prevent a Member State from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its relevant domestic laws and regulations.
(C) Nothing in this Code requires any Member State to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public and policy interest, or which would prejudice legitimate economic interests of particular enterprises, public or private.
(8) Enforcement
(a) Member States recognize that it is inappropriate to encourage investment by relaxing domestic measures and regulations of investments on the protection and enforcement of rights and duties pertaining to the investments as well as on the prevention of their abuse.
(b) No Member State should waive or derogate from, or offer to waive or otherwise derogate from investment measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment.
(c) If a Member State considers that another Member State has derogated from investment measures in violation of paragraph (a) and (b) above, it may report the matter to ECIM Council. The ECIM Council shall take appropriate measures as necessary to address the issue.
Chapter 3. STATE CONTRACTS
Article 16. Nature, Negotiation and Renegotiation
1. Member States and investors shall negotiate and implement State contracts in good faith. In such contracts, especially long-term ones, review or renegotiation clauses should normally be included.
2. In the absence of such clauses and where there has been a fundamental change of the circumstances on which the contract or agreement was based, trans-national corporations, acting in good faith, should co-operate with Member States for the review or renegotiation of such contract or agreement
3. Review or renegotiation of such contracts or agreements should be subject to the laws of the Member State(s) and international legal principles.
Chapter 4. HOST COUNTRY OPERATIONAL MEASURES
Article 17. Coverage and Duration
1) Member States may introduce measures to promote domestic investments and local content. Measures covered by this Paragraph include, inter alia:
(a) measures to grant preferential treatment to any enterprises qualifying under the domestic law of a Member State in order to achieve national, sub-national or regional development goals;
(b) measures to support the development of local entrepreneurs;
(c) measures to enhance productive capacity, increase employment, increase human resource capacity and training, research and development including of new technologies, technology and skills transfer, innovation and other benefits of investment through the use of specified requirements on investors;
(d) measures to address historically based economic disparities suffered by identifiable ethnic or cultural groups due to discriminatory or oppressive measures against such groups prior to the adoption of this Protocol. (2) With a view to ensuring that these instruments may be maintained by Member States till such time that their developmental needs demand, there will be a transition period to provide Member States the necessary flexibility to implement development policies intended to address, among others, social, regional, economic, and technological concerns that may help reduce the disparities they face.
(3) Member States shall within 5 years of the coming into force of this Investment Code define objective criteria on the basis of which a phase-out period can be considered and approved by the ECIM Council according to their development needs.
Article 18. Contact Point
(1) Each Member State shall establish a National Authority or designate one of its departments or agencies as a contact point for purposes of the implementation of this Code. The functions of the focal point shall include:
a) liaising with the ECIM Council;
b) facilitating regular communication and coordination between Member States concerning issues arising under the Code, including requesting or transmitting information from or to another Member State;
c) providing a contact for assistance in investment promotion and facilitation;
d) maintaining statistics about inward and outward investment of the Member State ;
a) handling enquiries in relation to the conduct of investments or investors of a Member State ;
b) investigating and seeking to resolve concerns or conflicts raised by individuals or civil society groups in relation to the conduct of investors or investments concerning their obligations under this Code or the additional responsibilities set out in this Code;
c) reporting on any matters dealt with under Paragraph f; and
d) any other functions the Member State incorporates into its work.
(2) The focal point shall operate in a visible, accessible, transparent and accountable manner. It shall receive and consider information, statements of concern or other information from government officials, nongovernmental groups or individuals from the Member State in which it is established, or from any other Member State or third country.
Chapter 5. INCENTIVES
Article 19. Nature and Character of Incentives
(1) Member States may introduce incentives in accordance with ECOWAS Investment Policy (ECOWIP) to attract investments. Such incentives may include:
a) financial incentives in the forms of investment insurance, grants or loans at concessionary rates;
b) fiscal incentives such as tax holidays, pioneer status and reduced tax rates;
c) subsidised infrastructure or services, market preferences;
d) development-oriented incentives, to encourage preferential markets schemes and specific investors within the region;
e) incentives for technical assistance, or technology transfer;
f) Investment guarantees.
(2) Member States shall harmonise incentives for investments which are of strategic interest to the region. Member States undertake to harmonise incentives in accordance with standards to be prescribed from time to time by ECIM Council. In prescribing harmonisation of incentive, ECIM Council shall give due consideration to the peculiarities of the investments concerned and, without prejudice to the generality of the foregoing, may provide for the following:
a) national incentives to investment designed to promote sustainable, export-led industrial and service-oriented development;
b) investment facilitation through the removal of bureaucratic impediments; and
c) non-discrimination in the granting of incentives among Community nationals
(3) For the purpose of such harmonisation, Member States shall exchange information concerning all incentives related to investments that they provide to their domestic investors.
(4) Member States shall notify the ECIM Council and other Member State of their incentives in order to enable ECIM Council and other Member States to evaluate their economic effects and to understand the operation of the notified measures and programmes.
Article 20. Non-Discrimination
(1) The rights and obligations under Articles 6 &7 (National Treatment and Most Favoured Nation Treatment principles) do not apply to subsidies or grants provided to a government or a State enterprise, including government-supported loans, guarantees and insurance.
(2) Exceptions and exemptions from the most-favoured nation and from the national treatment obligations within the context of incentives shall apply only if Member States make due commitments in this respect in their Annexes schedules of excluded sectors.
(3) The rights and obligations under Articles 6 & 7 (National Treatment and Most Favoured Nation Treatment principles) do not apply with regard to taxation measures aimed at ensuring the effective collection of taxes, except where this results in arbitrary discrimination duly noted and reported by the investor.
Chapter 6. ENVIRONMENT AND SUSTAINABLE DEVELOPMENT
Article 21. General Protection of the Environment
1. The Member States re-affirm their commitment to promote within the ECOWAS territory mutually supportive environmental-related investment policies, encourage high levels of environmental protection, facilitate the effective enforcement of national environmental laws, and enhance the capacities of the Member States to address environmental-related investment issues through regional co-operation.
2. For the purpose of this section, "environmental legislation" means any legislation of Member States, or provision thereof, the primary purpose of which is the protection of the environment, or the prevention of harm to human, animal, or plant life or health, including but not limited to legislation related to the:
(i) prevention, abatement or control of the release, discharge, or emission of pollutants or environmental contaminants;