(ii) control of environmentally hazardous or toxic chemicals, substances, materials and wastes, and the dissemination of information related thereto;
(iii) protection or conservation of wild flora or fauna, including endangered species, their habitat, and specially protected natural areas in the Member State's territory; implementation of any relevant and subsequent agreements on environment.
3. The Member States further recognise that it is unlawful under this Code to encourage investment by relaxing national health, safety, or environmental measures. Accordingly, no Member State shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its national territory.
4. If a Member State considers that another Member State has offered an encouragement referred to in paragraphs 3, the Member State may request consultations with the other Member State, and the two Member States shall consult with a view to avoiding any such encouragement. In the event that the Member States are unable to resolve their differences under this paragraph through bilateral consultations, either Member State shall submit the matter to the ECOWAS Common Investment Market Council for the resolution thereof.
Article 22. Member States Obligations
1. The Member States recognise the importance of mutually supportive investment, trade, and environmental policies and practices to improve national and regional environmental protection in the furtherance of sustainable, inclusive, and collective economic development.
2. The Member States further recognise the sovereign right of each Member State to establish its own levels of national environmental protection and its own national environmental priorities, and to establish, adopt, or modify its environmental laws and policies accordingly.
3. Each Member State shall strive to ensure that its national environmental laws and policies provide for, and encourage, high levels of environmental protection and to continue to improve its respective levels of environmental protection.
4. Without prejudice to paragraph 2, the Member States understand that it is unlawful to encourage investment or trade in their jurisdictions by reducing the protection afforded in their respective environmental laws. A Member State shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its national environmental laws in a manner that reduces the protection afforded in those laws in order to encourage cross-border investment or trade between and amongst the Member States in the ECOWAS territory.
5. In furtherance of paragraph 4, no Member State shall fail to enforce its national environmental laws through a sustained or recurring course of action or inaction in a manner affecting investment or trade in the ECOWAS territory after the date of entry into legal force and effect of this Code for that Member State.
6. The Member States recognise that each Member State retains the right to exercise discretion and to make decisions regarding: (a) national investigatory, prosecutorial, regulatory, and compliance matters; and (b) the allocation of national environmental enforcement resources with respect to other national environmental objectives determined to have higher priorities. The Member States further recognise that, with respect to the enforcement of national environmental laws, a Member State is in compliance with paragraph 5 if a course of action or inaction reflects a reasonable exercise of administrative discretion, or results from a bona fide decision regarding the allocation of its national resources in accordance with its national priorities for the enforcement of its national environmental laws.
7. For greater clarity, nothing in this Section shall be construed to empower the administrative authorities of any Member State to undertake any environmental law enforcement activities in the national territory of another Member State.
Article 23. Multilateral Environmental Agreements
1. The Member States recognise that multilateral environmental agreements to which they are a party play a strategic role, globally, regionally, and nationally, in protecting the natural environment, and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Each Member State affirms its commitment to implement in its national territory the multilateral environmental agreements to which it is a party.
2. The Member States emphasise the need to enhance the mutual supportiveness amongst investment, trade, and environmental policies and laws through dialogue between the Member States on such issues of mutual interest, particularly with respect to the negotiation and integrated implementation of the relevant multilateral investment, trade, and environmental agreements.
Article 24. Procedural Matters
1. Each Member State shall promote public awareness of its national environmental policies and laws, including enforcement and compliance procedures, by ensuring that relevant information is made available to the general public.
2. Each Member State shall ensure that an interested person residing or established in its national territory may request that the competent national environmental authorities of that Member State investigate alleged violations of its national environmental laws, and that the competent national authorities accord those requests due consideration in accordance with all applicable national laws of the Member State.
3. Each Member State shall ensure that judicial, quasi-judicial, or administrative proceedings for the enforcement of its national environmental laws are available under its law, and that those proceedings are not only fair, equitable, and transparent, but also comply with due process of law. Any hearings in such administrative proceedings shall, in accordance with its applicable national laws, be open to the public, except when the administration of justice otherwise requires.
4. Each Member State shall ensure that persons with a recognised interest under its law in a particular matter have appropriate access to the administrative proceedings referred to in paragraph 3.
5. Each Member State shall provide appropriate sanctions or remedies for any violations of its national environmental laws for the effective enforcement thereof. Such sanctions or remedies may include a right to bring an action directly against the violator to seek damages or injunctive relief, or a right to seek governmental action.
6. Each Member State shall ensure that it takes appropriate account of all relevant factors in the establishment of the sanctions or remedies referred to in paragraph 5. Those factors may include the nature and gravity of the violation, damage to the natural environment, and any economic benefit that the violator derived from the violation.
Article 25. Opportunities for Public Participation
1. Each Member State shall seek to accommodate requests for information regarding the implementation of this Section through its national environmental authorities.
2. Each Member State shall make use of existing, or establish new, consultative mechanisms, such as national advisory committees, to seek views on matters related to the implementation of this Section. These mechanisms may include persons with relevant experience, as appropriate, including experience in business, natural resource conservation and management, or other environmental matters.
Article 26. Regional Cooperation Frameworks
1. The Member States recognise the strategic importance of regional co-operation as a facilitative mechanism to implement this Section, to enhance its benefits, and to strengthen the joint and individual capacities of the Member States to protect the natural environment and to promote sustainable, inclusive, and collective economic development in the ECOWAS territory.
2. Taking into consideration their respective national priorities and circumstances and available resources, the Member States shall cooperate to address matters of joint or common interest among them that are related to the implementation of this Section, especially in cases in which mutual benefits from regional co-operation is anticipated. Such co-operation may be carried out on a bilateral or plurilateral basis between and amongst the Member States and, subject to consensus by the participating Member States, may include non-governmental bodies or organisations and non-Member States.
3. Each Member State shall designate the national administrative authority or authorities responsible for any regional co-operation in respect of the implementation of this Section to serve as its national contact point on matters that relate to regional co-operation and co-ordination activities. Each Member State shall notify the other Member States in writing, within ninety (90) days of the date of entry into legal force and effect of this Code for that Member State, of its national contact point.
4. Upon notifying the other Member States of its national contact point, or at any time thereafter through the contact points, a Member State may:
(a) share its priorities for co-operation with the other Member States, including the objectives of that co-operation;
(b) propose co-operation activities related to the implementation of this Section to another Member State or Member States;
(c) report to the ECOWAS Common Market Council all relevant issues raised during the regional co-operation undertaken under this Article;
(d) assist the ECOWAS Common Market Council to formulate regional environmental proposals that are consistent with the ECOWICPF, and that take into consideration the different levels of economic development, capacity, and financial resources of the Member States; and
(e) act as a channel for communication with the general public in its respective national territory.
5. When appropriate, the Member States shall seek to complement and use their existing co-operation mechanisms and take into account the relevant work of regional and international organisations.
6. In furtherance of the preceding paragraphs of this Article, regional co-operation may be carried out through various mechanisms, including dialogue, workshops, seminars, conferences, collaborative programmes and projects, technical assistance and support to facilitate co-operative training, the sharing of internationally-recognised environmental policies, practices, and procedures, and the exchange of experts.
7. In developing co-operative activities and programmes, a Member State shall, if relevant, identify performance measures and indicators to assist in examining and evaluating the efficiency, effectiveness, and progress of specific co-operative activities and programmes and share those measures and indicators, as well as the outcome of any evaluation during or following the completion of any co-operative activity or programme, with the other Member States.
8. Each Member State shall promote public participation in the development and implementation of all regional co-operative activities, as appropriate, under this Article.
Article 27. Investor Environmental Obligations
1. Investors doing business in the ECOWAS territory shall comply with the following environmental obligations under this Code to:
(a) carry out their business activities in strict conformity with the applicable national environmental laws, regulations, and administrative practices of the Member States and other multilateral agreements applicable to their investments;
(b) undertake pre-investment environmental and social impact assessments of their proposed business activities and investments with respect to the natural environment and the local population in the relevant jurisdiction;
(c) apply the precautionary principle to their environmental and social impact assessments and to decisions taken in relation to a proposed investment, including any necessary mitigating or alternative approaches to such investment;
(d) make the investor environmental and social impact assessments available to the general public and accessible to the affected local communities and to any other affected interests in the Member State of the proposed investment;
(e) perform the restoration, using appropriate technologies, for any damage caused to the natural environment and to pay adequate compensation to all affected interested persons;
(f) provide to the competent national environmental authorities, in respect of the products, processes, and services of the investors enterprises, all relevant environmental information, together with measures and costs necessary to avoid and mitigate against any potentially harmful effects; and
(g) implement in the Member States standards of operation with regard to hazardous waste generation and disposal that are equivalent to, or no less stringent than, those in their home country of origin for investments carried out by investors of other Member States, or investors of non-Member States.
2. To ensure compliance with the obligations set out in paragraph 1, each Member State shall encourage investors operating within its national territory, without prejudice to Article 34 (Responsible Business Conduct) of this Code, to adopt as part of their responsible business conduct policies, internationally-recognised environmental standards and guidelines that have been endorsed or are supported by that Member State.
Article 28. Voluntary Mechanisms to Enhance Environmental Performance
1. The Member States recognise that flexible and voluntary mechanisms, such as voluntary auditing and reporting, market-based incentives, voluntary sharing of information and expertise, and public-private partnerships, can contribute to the achievement and maintenance of high levels of environmental protection and complement national regulatory measures. The Member States also recognise that those mechanisms should be designed in a manner that maximises their environmental benefits and avoids the creation of unnecessary barriers to investment or trade.
2. In accordance with its national policies, laws, and regulations, and to the extent that it considers appropriate, each Member State shall encourage:
(a) the use of flexible and voluntary mechanisms to protect natural resources and the environment in its national territory; and
(b) its relevant environmental authorities, business organisations, non-governmental organisations, and other interested persons involved in the development of criteria used to evaluate environmental performance, with respect to these voluntary mechanisms, to continue to develop and improve such criteria.
3. In cases in which private sector entities or non-governmental organisations develop voluntary mechanisms for the promotion of products based on their environmental qualities, each Member State shall encourage those entities and organisations to develop voluntary mechanisms that, among other things:
(a) are truthful, are not misleading, and that take into account all relevant scientific and technical information;
(b) if applicable and available, are based on relevant international standards, recommendations, or guidelines;iss|
(c) promote competition and innovation; andigi
(d) do not treat a product less favourably on the basis of its country of origin.
Article 29. Transfer of Environmentally Sound Management Practices
1. Member States and Investors shall recognise environmental management as among the highest corporate priorities and as a key determinant to sustainable development. Accordingly, investors shall take the following amongst other necessary measures:
i) increase the efficiency of resource utilisation, including increasing recycling and reducing waste discharge and especially by providing adequate knowledge and assistance;
ii) report annually on their environmental records, and adopt and implement codes of conduct promoting best environmental practices, by providing adequate and timely information regarding the potential health aspects of all their activities and shall also provide the relevant expertise for the enterprise and support public information and community awareness programmes;
iii) adopt global policies on sustainable development and arrange for environmentally sound technologies to be available to affiliates of parent companies in Member States on fair terms and, where appropriate, the use of environmental auditing;
iv) establish partnership schemes with small and medium-sized enterprises to help facilitate the exchange of experience in managerial skills, market development and technological know-how;
v) increase both domestic and global research and development of environmentally sound technologies and environmental management systems;
vi) ensure responsible and ethical management of products and processes from the point of view of environmental aspects;
vii) adopt and implement, wherever they operate, policies and standards of operation with reference to hazardous waste generation and disposal that are equivalent to or no less stringent than those in their country of origin, including siting decisions, impact on local communities resources and foreseeable environmental and environmentally related health risks of products as well as from the generation, transport and disposal of waste; and
viii) prepare contingency plans for the prevention and mitigation of environmental damages.
Chapter 7. HUMAN CAPITAL
Article 30. Labour and Employment Standards
(1) Member States recognise that it is inappropriate to encourage investment by relaxing domestic labour legislation. Accordingly, each Member State shall ensure that it does not waive or derogate from such legislation as an encouragement for the establishment, maintenance or expansion of an investment in its territory.
(2) Member States shall ensure that national laws and regulations provide for high levels of labour and human rights protection appropriate to its economic and social situation provided that the key principles of the Common Investment Code are not sacrificed in the process.
(3) Member States shall in consultation with investors design employment schemes in accordance with existing ECOWAS Social Security and Labour/Employment Policy, in particular to:
i. conform to government policies designed to extend equality of opportunity and treatment, including on wages, benefits and conditions of work;
ii. observe freely negotiated obligations concerning employment stability and social security in conjunction with the trade unions or other representatives of employees;
iii. not discriminate on the basis of race, colour, sex, religion, language, social, national and ethnic origin or political or other opinion;
iv. maintain the highest standards of health, risks and safety in the workplace;
v. apply the relevant and or to establish industrial dispute resolution mechanisms that provide due process and appropriate procedure to employers and workers, in conformity with domestic laws and policies;
vi. not use child labour and to support efforts for the elimination of all forms of child labour including forced or compulsory labour within the Community;
vii. make every effort to mitigate to the greatest possible extent every adverse effect of any purported investments changes on employees and the economy in the Member State.
In this regard, investors shall take the following steps:
i. consult with host country authorities and national employers' and workers' organizations in order to keep manpower plans in harmony with national social development policies, making optimal use of labour available locally and within the Community to provide substantial employment or reduce unemployment;
ii. give priority to the employment and promotion of host country nationals;
iii. use technologies which generate employment; and
iv. Promote, within relevant regulatory regimes and provisions in Member States, employment in the Community by entering into supply contracts with local enterprises and by prioritizing the use and the processing of local raw materials.
(4) Investors shall take into considerations issues submitted by Member States and related to the empowerment of local communities, and adopt measures aimed at facilitating the location of investments in low income or economically depressed areas.
Chapter 8. DEVELOPMENT OBJECTIVES AND SOCIAL RESPONSIBILITY
Article 31. Development Obligations
(1) Member States shall, in accordance with the general principles of international law, have the right to pursue their own development objectives and priorities.
(2) Member States recognize their obligations regarding trade-related investment measures established in other international agreements to which they are a Party.
(3) Investors doing business in the ECOWAS territory shall in pursuit of their economic objectives, proceed in ways that do not conflict with the social and economic development of host countries in particular, they shall be sensitive to changes in the social and economic goals of their hosts. Accordingly, there should be no conflict between the obligations of the parties in the investment agreement and the sovereign right of countries to pursue other key policy objectives.
(4) Member States may impose performance requirements to promote domestic development benefits from investments. Measures adopted prior to the completion of the host state measures prescribing the formalities for establishing an investment shall be deemed to be in compliance with this Code. If such measures are taken after the completion of the host state measures prescribing the formalities for establishing an investment, they shall be subject to the provisions of this Code.
(5) Measures to promote domestic development covered by this Article include requirements to:
a) transfer technology, a production process or other proprietary knowledge to a national or company in the Member State's territory, pursuant to relevant rules and processes duly agreed;
b) carry out a particular type, level or percentage of research and development in the Member State's territory;
c) appoint as executives, managers or members of boards of directors, individuals of any nationality ;
d) train or employ local workers in positions where shortages have been demonstrated, except through due authorisation; and
(6) Member States shall enforce any existing universal service policy or legislation in a transparent and non-discriminatory manner and shall ensure that the application of such universal service policy or legislation is not more burdensome than necessary for the kind of universal service that it prescribed or required.
(7) Member States shall take account of the following criteria, among others, in the assessment of a proposed investment:
(a) importance of the investment;
(b) participation in the implementation of the economic and social plans; (c) creation of employment and vocational training;
(d) use of appropriate technologies and equipment;
(e) priority of use of local raw materials and in general, local products;
(f) registered office established in a Member State and;
(g) environmental and social impact assessment report.
Article 32. Socio-Political Obligations
(1) Investors conducting business in the ECOWAS territory shall adhere to the following principles including but not limited to:
a) respect for national sovereignty and observance of domestic laws, regulations and administrative practices;
b)respect for socio-cultural objectives and values;
c) non-interference in internal political affairs; and
e)non-interference in intergovernmental relations;
(2) Investors shall not influence the appointment of persons to public office or finance political parties or organisations;
(3) The investor shall be bound by the laws and regulations in force in the host state and shall refrain from all acts that may disturb public order or morals or that may be prejudicial to the public interest. The investor is also to refrain from exercising restrictive practices and from trying to achieve gains through unlawful means.
Article 33. Consumer Protection
1. The Member States recognise the importance of consumer protection policy and its enforcement for the purposes of creating efficient and competitive markets and enhancing consumer welfare in the ECOWAS territory.
2. For the purposes of this Article, fraudulent and deceptive commercial activities refer to those fraudulent and deceptive commercial practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example:
(a) a practice of making misrepresentations of material fact, including implied factual misrepresentations, that cause significant detriment to the economic interests of misled consumers;
(b) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or
(c) a practice of charging or debiting consumers' financial, telephone, or other accounts, without any authorisation.
3. Each Member State shall adopt or maintain consumer protection laws or other laws or regulations that proscribe fraudulent and deceptive commercial activities. Such laws and regulations shall be compatible and consistent with the ECOWAS Supplementary Act on Competition.
4. The Member States recognise that fraudulent and deceptive commercial activities increasingly transcend national borders, and that cooperation and coordination between the Member States is desirable to address these activities effectively.
5. In accordance with paragraph 4, the Member States shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to fraudulent and deceptive commercial activities, including in the enforcement of their national consumer protection laws in accordance with the ECOWAS Supplementary Act on Competition .
6. The Member States shall endeavour to cooperate on the matters set out in this Article under the auspices of the ECOWAS Regional Investment Competition Authority through coordination between the regional authority and the competent national public bodies or officials responsible for national consumer protection policies, laws, and enforcement as determined by each Member State.
7. Investors doing business in the ECOWAS region shall when dealing with consumers act in accordance with fair business, marketing and advertising practices and should take all reasonable steps to ensure the safety and quality of the goods or services they provide. They shall in particular, give full and adequate attention to the following key areas:
a) Ensure that the goods or services they provide meet all agreed or legally required standards for consumer health and safety, including health warnings and product safety and information labels.
b) As appropriate to the goods or services, provide accurate and clear information regarding their content, safe use, maintenance, storage, and disposal sufficient to enable consumers to make informed decisions.
c) Provide transparent and effective procedures that address consumer complaints and contribute to fair and timely resolution of consumer disputes without undue cost or burden.
d) Not make representations or omissions, nor engage in any other practices, that are deceptive, misleading, fraudulent, or unfair.
e) Respect consumer privacy and provide protection for personal data.
f) Co-operate fully and in a transparent manner with public authorities in the prevention or removal of serious threats to public health and safety deriving from the consumption or use of their products.
Article 34. Corporate Governance and Responsible Business Conduct
1. Investors shall comply with all international best practices, regional, and national laws and regulations applicable to corporate governance in the ECOWAS territory in order to promote improved corporate accountability and transparency in the region.
2. Investors conducting business in the ECOWAS territory shall endeavour to promote and engage in corporate social responsibility in accordance with international best practices, taking into account the peculiar development plans and priorities of Member State and in particular the needs of for the local communities.
3. The Member States shall adopt or maintain, as the case may be, national legal and regulatory frameworks applicable to corporate governance in accordance with the internationally-recognised standards referred to in this Code.
4. In this regard, investors are required to adopt and implement, inter alia, the following provisions:
a. ensure equitable treatment of all shareholders, including minority and third party shareholders;
b. encourage active cooperation between corporations and stakeholders in creating wealth, jobs and the sustainability of financially sound enterprises;
c. ensure that timely and accurate disclosure is made of all materials facts relevant to, inter alia, the financial situation, performance, ownership, and governance of the company, risks related to environmental liabilities, and any other matters in accordance with the relevant regulations and requirements;
d. ensure similar disclosure of information relating to human resource policies, such as programmes for human resource development; and
e. respect any other requirement agreed to, and adopted, by the Member States pursuant to this Code and the ECOWICPF.
f. adhere to the financial reporting, disclosure, accounting, and audit practices satisfying the requirements of the International Financial Reporting Standards (IFRS)
Chapter 9. CORRUPTION AND UNETHICAL PRACTICES
Article 35. General
1. Member States affirm their resolve to eliminate bribery, fraud, and corruption in respect of international investment and trade in the ECOWAS territory.
2. The scope of this Section is limited to measures to eliminate bribery, fraud, and corruption with regard to any matter covered by this Code.
3. Member States recognise that the description of offences adopted or maintained in accordance with this Section, and of the applicable legal defences or legal principles controlling the lawfulness of conduct, is expressly reserved to the national laws of each Member State, and that those offences shall be prosecuted and punished in accordance with such national laws.
4. Each Member State shall ratify or accede to the United Nations Convention against Corruption, done at New York on October 31, 2003 (UNCAC), within one hundred and eighty (180) days after the entry into legal force and effect of this Code for that Member State. For those Member States that have already ratified the UNCAC, such Member States shall continue to maintain their membership status thereto in conformity with this Code.
Article 36. Measures to Combat Corruption
1. Each Member State shall adopt or maintain legislative and other measures as may be necessary to establish as criminal offences under its national laws certain conduct, acts, or omissions that, when committed intentionally by any person subject to its jurisdiction, can affect cross-border international investment or trade, including: