(a) the promise, offering, or giving to a public official, directly or indirectly, of a gift, favour or an undue advantage for the official or another person or entity in order that the official act or refrain from acting in relation to the performance of, or the exercise of, his or her official duties;
(b) the solicitation or acceptance by a public official, directly or indirectly, of a gift, favour or an undue advantage for the official or another person or entity in order that the official acts or refrains from acting in relation to the performance of, or the exercise of, his or her official duties;
(c) the promise, offering, or giving to a foreign public official or an official of a public international organisation, directly or indirectly, of an undue advantage for the official or another person or entity in order that such official acts or refrains from acting in relation to the performance of, or the exercise of, his or her official duties in order to obtain or retain business or other undue advantage in relation to the conduct of international business;
(d) any promise or declaration by any person that he can exercise some influence on decisions or actions of persons occupying positions in the public or private sector, whether the influence had been exercised or not and whether or not the supposed influence had the desired result;
(e) the diversion by a public official of any assets whether moveable or immovable, deeds or securities of a State in his possession either for his own benefit or for the benefit of another person; and
(f) the aiding or abetting or conspiracy in the commission of any of the offences described in subparagraphs (a) through (e).
2. Each Member State shall make the commission of an offence described in Article 37paragraphs a to e liable to sanctions, in accordance with its national laws, that take into account the gravity of that offence.
3. Each Member State shall adopt or maintain national measures as may be necessary, consistent with its legal principles, to establish the liability of juridical persons for offences described in Article 37, paragraphs a to e, whether or not the offence is committed in whole or part in its territory or the offender is one of its nationals, or an investor or its agent, or any other person acting in relation to an investment in a Member State. In furtherance of this provision, each Member State shall ensure that juridical persons held liable for offences described in paragraph 1 or 5 are subject to effective, proportionate, and dissuasive criminal or non-criminal sanctions, which can include monetary sanctions, seizure and forfeiting of assets and other proceeds of such crime.
4. No Member State shall allow a person subject to its jurisdiction to deduct from any tax liability expenses incurred in connection with the commission of an offence described in Article 37 paragraphs a to e .
5. In order to prevent fraud and corruption, each Member State shall adopt or maintain national measures as may be necessary, in accordance with its national laws and regulations, regarding the maintenance of books and records, financial statement disclosures, and accounting and auditing standards to prohibit the following acts carried out for the purpose of committing any of the offences described in Article 37 paragraphs (a-e) :
(a) the establishment of off-the-books accounts;
(b) the making of off-the-books or inadequately identified transactions;
(c) the recording of false expenditures;
(d) the book entry of liabilities with incorrect classifications;
(e) the use of false documents; and
(f) the intentional destruction of bookkeeping documents before the time limit established by applicable national law.
6. Each Member State shall consider adopting or maintaining national measures to protect against any unjustified or retaliatory treatment any person who, in good faith and on reasonable grounds, reports to the competent national authorities any facts concerning any offences described in Article 37, paragraphs a to e.
Article 37. Promoting Integrity Amongst Public Officials
1. To regulate and effectively control fraud and corruption in matters that affect cross- border investment and trade, each Member State shall promote, among other attributes, integrity, honesty, and responsibility among its public officials. In furtherance of this goal, each Member State shall endeavour, in accordance with the fundamental principles of its national legal system, to adopt or maintain:
(a) national measures to provide adequate procedures for the selection and training of individuals for public positions considered particularly susceptible to fraud and corruption, and the rotation, if appropriate, of such individuals to other public positions;
(b) national measures to promote transparency in the behaviour of public officials in the exercise of their public functions;
(c) effective and transparent national policies and procedures to identify and manage actual or potential conflicts of interest of public officials;
(d) national measures that require senior and other appropriate public officials to make declarations to the competent national authorities regarding, among other potential conflicts, their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials; and
(e) national measures to encourage the reporting by public officials of any acts of fraud or corruption to the competent national authorities in cases in which such officials, in the discharge of their public functions, become aware of any such acts as committed by any other public official or by any other person subject to its jurisdiction.
2. Each Member State shall endeavour to adopt or maintain national codes or standards of conduct to encourage the correct, honourable, and proper performance of public functions, as well as national measures providing for disciplinary or other measures, if warranted, against public officials who violate such codes or standards.
3. Each Member State, to the extent consistent with the fundamental principles of its national legal system, shall consider establishing procedures through which a public official accused of an offence described in Article 37may, where appropriate, be removed, suspended, or reassigned by the competent national authority, provided that the principle of the presumption of innocence is respected in all cases in accordance with the national laws of a Member State.
4. Each Member State shall, in accordance with the fundamental principles of its national legal system and without prejudice to the independence of its judicial courts, adopt or maintain national measures to strengthen public official integrity and to prevent opportunities for fraud and corruption among members of the judiciary in matters that affect international investment or trade in the ECOWAS territory. Such measures may include any rules governing the conduct of the members of the judiciary of any Member State.
Article 38. Obligations of Investors
1. Investors doing business in ECOWAS territory shall not, prior to the establishment of an investment or there after offer, promise or give any undue pecuniary or any undue advantage to a public official of a Member State or to a member of an official's family, business associate or other person in close proximity to an official or another person or any entity in order that the official acts or refrains from acting in relation to the performance of, or the exercise of, his or her official duties in order to achieve any favour or compromise in relation to the proposed investment.
2. The investors shall cooperate with Member States in eliminating corruption in public governance and shall accordingly, not encourage, incite, aid, abet or conspire with any official or another person or any entity to commit or authorise the commission of acts described in Article 37 above.
Article 39. Regional Co-operation
1. The Member States recognise the importance of co-operation and coordination among States to eliminate bribery, fraud, and corruption in respect of international investment and trade in the ECOWAS territory. In recognition of this principle, each Member State shall:
(a) cooperate in the area of investment-related crime of bribery, fraud, and corruption by exchanging information on such crimes in accordance with the ECOWIPCPF ;
(b) cooperate, as appropriate, on issues of cross-border enforcement, including through notification, consultation and exchange of information.
(c) cooperate, as appropriate, on issue of mutual legal assistance and other law enforcement cooperative measures necessary to facilitate the investigation, prosecution and extradition of offenders for any act of corruption and other offences created pursuant to this Code in their national laws.
(d) ensure that investigation and prosecution for acts of corruption shall not be influenced by consideration of national economic interest, the potential effect upon relations with a Member State or a third country or the identity of the natural or legal person involved; and
(e) promote transparency in banking practices and transactions within its national jurisdictions and ensure that bank secrecy does not impede or hinder criminal investigations or other legal proceeding relating to fraud, bribery, corruption or related illicit practices in business practices and transactions
3. The offences created pursuant to the provisions of this Code shall be considered as crimes leading to extradition under existing ECOWAS Convention on Extradition or any other existing treaties on extradition between Member States or with other countries. Where such offences are not mentioned in existing treaties, Member States shall ensure that they are included.
Article 40. Trans-National Bribery
(1) Member States shall adopt such legislative and other measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with Chapter 9 of this Code where:
(a) the offence is committed in whole or in part in its territory;
(b) the offender is one of its nationals, or an investor or its agent ,or any other person acting in relation to an investment in a Member State ;
(2) Member States shall pursue effective enforcement of existing laws prohibiting corruption in international commercial transactions, to encourage the adoption of laws for those purposes where they do not exist, and to call upon private and public corporations, including investors and trans-national corporations and individuals within their jurisdiction engaged in international commercial transactions to promote the objectives set out in this Chapter.
(3) Member States shall deny, the tax deductibility of bribes paid by any private or public corporation or individual of a State to any public official or elected representative of another country and, to that end, to examine their respective modalities for achieving these objectives.
(4) Member States shall ensure that bank secrecy provisions do not impede or hinder criminal investigations or other legal proceedings relating to corruption, bribery or related illicit practices in business practices and transactions.
(5) Member States legislation on corruption shall prohibit and punish corruption by measures which include:
i. deprivation of liberty for natural persons
ii. payment of fines or monetary sanction for non natural legal persons
iii. seizure and forfeiture of assets and other proceeds of crime.
(6) The offences created pursuant to the provisions of this Code shall be considered as crimes leading to extradition under existing ECOWAS Convention on Extradition or any other existing treaties on extradition between Member States or with other countries. If the offences are not mentioned in existing extradition treaties, Member States shall ensure that they are included.
(7) Member States undertake to assist each other with mutual legal assistance and other law enforcement cooperation measures necessary to facilitate the investigation and prosecution of acts of corruption and other offences created pursuant to this Code in national laws
(8) Member States may impose additional civil or administrative sanctions upon a person subject to prosecution for act of corruption
(9) Investigation and prosecution for acts of corruption shall not be influenced by considerations of national economic interest, the potential effect upon relations with a Member State or a third country or the identity of the natural or legal persons involved.
Chapter 10. TRANSFER PRICING
Article 41. Obligation to Comply with International Transfer Pricing Standards
(1) Investors and their investments shall ensure that all transactions with related or affiliated parties ("controlled transactions") shall be conducted in accordance with the arm's length principle.
(2) The relevant international standard is the Organisation for Economic Cooperation and Development (OECD) "Transfer Pricing Guidelines for Multinational Persons and Tax Administrations".
(3) Where there is any inconsistency between Member States domestic transfer pricing regulations and OECD Guidelines, the regulations shall prevail.
Article 42. Investor Obligations to Provide Transfer Pricing Documentation
(1) Investors must have in place contemporaneous transfer pricing documentation that verifies that the conditions in its controlled transactions for the relevant tax year are consistent with the arm's length principle.
(2) Transfer pricing documentation shall include, but is not limited to:
a) an overview of the investor's business operations,
b) a description of the corporate organisational structure of the group,
c) general written description of the investor's business,
d) a description of controlled transactions (amounts, connected persons, copies of material intercompany agreements).
(3) The obligation of the investor to provide this documentation is established without prejudice to the power of the Member State to request additional information that in the course of audit procedures it deems necessary to carry out its functions.
Article 43. Member State Obligations to Cooperate on Transfer Pricing Issues
(1) To avoid any further harmful fiscal competition within the Community, Member States shall ensure that their national laws are compatible with international standards on transfer pricing.
(2) Furthermore, Member States shall cooperate in the detection and prevention of transfer pricing manipulation by investors, including in the provision of information necessary to identify and prevent such practices, and opportunities for joint tax audit.
Article 44. Investor Obligations Not to Engage In Base Erosion and Profit Shifting
Investors and their investments shall conduct their operations in a manner that fully complies with all applicable tax laws and international standards relating to ensuring tax benefits are not reduced through base erosion and profit shifting practices. Investors and their investments shall provide the financial information required by the Member State to ensure compliance with the applicable laws.
Chapter 11. TAXATION
Article 45. Jurisdiction to Tax
(1) This Code shall not affect the rights and obligations of a Member State under Double Taxation Agreements.
(2) Member States shall have the right to enter into double tax treaties, provided that whenever a harmonised ECOWAS tax regime is concluded it shall supersede existing double tax arrangements amongst Member States.
(3) Member States shall endeavour to conclude regional and international treaties to avoid double taxation and to allow for the exchange of information between the fiscal authorities from the various jurisdictions.
(4) Member States shall adequately examine the structure of their respective taxes over the income and profit of taxpayers, including identifying tax havens and examining their taxable basis, rates and fiscal administration through the establishment of a regional body in accordance with the ECOWAS Revised Treaty.
(5) In the design and negotiation of Double Tax Agreements, Member States should take special care to maintain the right to collect the tax revenue income earned/sourced within the jurisdiction.
(6) Member States shall develop rules and regulations to deter any attempt by a third-country resident or any person or entity to obtain benefits from an income tax treaty for which it was not intended or qualified or to act as a conduit for profits.
(6) Member States are encouraged to put in place measures for transparency, streamlining, due process and good governance in their fiscal legislations and regulations, in particular, to financial reporting, disclosure, accounting, and audit practices satisfying the requirements of the International Financial Reporting Standards (IFRS).
Chapter 12. HOME STATE MEASURES
Article 46. Home State Operational Measures
(1) Definition
Home country measures are measures that are used to promote the flow of investments within the community.
(2) Member States Obligations
Member States undertake to adopt a harmonized ECOWAS Investment incentives regime to promote the flows of investments by Community citizens across the region and from third countries.
(3) Home State incentives
(a) A Home State shall refrain from frustrating the effects of development relief granted by Host Country in respect of new investment. Third country governments are encouraged to support investment flows to the region by facilitating such flows through incentives and other measures.
(b) Home Country shall not obstruct flows of investment from its territory to Member States and is encouraged to adopt appropriate measures to facilitate such flows, including taxation agreements, investment guarantees, technical assistance, and the provision of information.
(4) Cooperation on Information Sharing
(a) Member States undertake to cooperate and to share information on the operations of investors from their territories and to implement the outcome of judicial or administrative decision made by host state with regards to the operations of investors in host state.
(b) Member states shall, on request, and in a timely manner, provide to a requesting member state such information as is requested and available for the purposes of the Member State to meet its obligations and perform its duties in relation to an investor. Home states shall protect confidential business information in this regard.
(c) Third country governments are encouraged to cooperate with Member States in the sharing of information on the operations of investors from their territories.
Chapter 13. TECHNOLOGY TRANSFER
Article 47. Promotion of Technology Transfer
(1) Member States can provide incentives in their territories for the purpose of promoting and encouraging the transfer of appropriate technology in their territory.
(2) Investors shall ensure that the technology being transferred complies with the science, technology and innovation policies and plans of the Member States in which they operate, and is appropriate and will contribute to the development of local and national innovative capacity.
(3) Investors shall adopt, where practicable in the course of their business activities, practices that permit the transfer and rapid diffusion of technologies and know-how, with due regard to the protection of intellectual property rights, on reasonable terms and conditions and in a manner that contributes to the long term development prospects of the host country.
(4) In order to facilitate the implementation of these provisions, Member States and investors shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of requesting Party.
(5) Member States undertake to cooperate and facilitate the international transfer of technology by various measures such as:
a) getting access to available information regarding description, location and, as far as possible, approximate cost of technology,
a) establishing or strengthening of technology transfer centres;
b) providing training for research, engineering, design and other personnel engaged in the development of national technologies or in the adaptation and use of technologies transferred;
c) providing assistance in the development and administration of laws and regulations with a view to facilitating the transfer of technology;
d) granting credits on terms more favourable than the usual commercial terms for financing the acquisition of capital and intermediate goods in the context of approved development projects involving transfer of technology transaction;
e) assisting in the development of technological capabilities of the companies and their personnel.
Article 48. Technology Diffusion
(1) Investors shall diffuse technology and upgrades as well as improvements thereof through various mechanisms such as the demonstration and competition effects, the movement of labour from foreign affiliates to local firms and through the creation of linkages between foreign and local companies and their customers.
(2) Investors are encouraged to establish linkages with local firms, industries and institutions towards assisting the development of local technological capabilities.
Article 49. Treatment of Intellectual Property Rights
(1) Scope and Coverage
(a) For purposes of this Code, intellectual property covers copyright and related rights; industrial property rights; plant breeders rights; rights to traditional knowledge, folklore and genetic resources; and other rights and flexibilities recognised under the TRIPS Agreement, the Convention on Biological Diversity and the International Agreement on Plant Genetic Resources.
(b) Member States affirm their existing rights and obligations under the Trade Related Intellectual Property Services (TRIPS) Agreement and intellectual property agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) to which they are a party.
(c) Each Member State shall make available to right holders civil judicial procedures concerning the enforcement of intellectual property rights.
(2) Traditional Knowledge and Folklore
(a) For purposes of this Code, the term "traditional knowledge" or "folklore" means the practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artefacts and cultural spaces associated therewith - that communities and groups in Member States recognize as part of their heritage which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. Traditional knowledge or folklore includes but is not limited to -
i. oral traditions and expressions;
ii. the performing arts;
iii. social practices, rituals and festive events;
iv. knowledge and practices concerning nature and the universe; and
v. traditional craftsmanship.
(b) Where traditional knowledge or folklore is sought, used or exploited by investors in a Member State, or is otherwise relevant to their contracts, practices and other operations in such Member State, the investors undertake to protect traditional knowledge under the generally accepted international legal standards and best practices and to adhere to the following minimum standards.
i. Local communities in Member States have rights of ownership over their innovations, practices, knowledge and technologies acquired through generations and have a right to collectively benefit from the utilization of such resources.
ii. These community rights are to be protected in accordance with norms, practices and customary law found in, and recognized by the local communities in Member States whether such law is written or not.
iii. Access by an investor to biological resources and knowledge or technologies of local communities in a Member State is conditioned on the prior informed consent of the local community with rights over the resources. Access carried out without such local consent is invalid.
iv. Local communities in Member States may withdraw their consent to access or place restrictions on activities relating to access where such activities are likely to be detrimental to their socio-economic life, or their natural or cultural heritage.
v. An investor seeking in the territory of a Member State a patent relating to biological materials or to traditional knowledge or to folklore must provide, as a condition of patent rights, (i) the disclosure of the source and country of the biological resource and traditional knowledge used in the invention; (ii) evidence of prior informed consent through approval of authorities in the source Member State; and (iii) evidence of fair and equitable sharing of benefits with relevant local communities in the source Member State.
(3) Registration of Intellectual Property Rights
The registration of intellectual property rights, including the protection of traditional knowledge by a regional Intellectual Property Rights Registration Agency shall be recognized by Member States without a further requirement of registration of those rights.
Chapter 14. COMPETITION
Article 50. Restrictive Business Practices
(1) The following shall be prohibited as incompatible with the ECOWAS Common Market: all agreements between enterprises, decisions by associations of enterprises and concerted practices which may affect trade between ECOWAS Member States and the object or effect of which are or may be the prevention, restriction, distortion or elimination of competition within the Common Market, and in Particular those which:
(a) directly or indirectly fix purchase or selling prices, terms of sale, or any other, trading conditions;
(b) limit or control production, markets, technical development, or investment; (c) share markets, customers, or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties; thereby placing them at a competitive disadvantage; or
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(2) Any agreement or decision prohibited under the sub-paragraph 1 of this Article shall be automatically void and of no legal effect in any Member State of the ECOWAS Community
(3) Member States also undertake to prevent the abuse of intellectual property rights such as resort to practices which unreasonably restrain, adversely affect or set barriers to trade in intellectual property rights or intangible goods including the transfer of technology.
(4) Harmonization Measures
In order to facilitate the implementation of this chapter of this Code, Member States undertake to implement the provisions of the ECOWAS Supplementary Acts on Competition rules and the establishment of Competition Authority.
Chapter 15. TRADE-RELATED INVESTMENT MEASURES
Article 51. Trade-Related Investment Measures
(1) | Member States shall adopt investment related trade measures to enhance regional economic integration in accordance with the provisions of Article 31.
(2) Sectorally-Managed Trade Arrangements Due attention shall be paid to the relevant regional and multilateral instruments, with a view to fulfilling development priority needs of Member States.
(3) Regional Trade Agreements
Nothing in this Article shall be construed so as to oblige a Member State to extend to investments or investors of a Third Country advantages resulting from any existing or future association or participation in a free trade area, customs union, common market, economic and monetary union or any other similar institution of economic integration or to extend to investments or investors of third countries deductions, fiscal exemptions or any other similar advantages resulting from double taxation agreements or any other agreement regarding tax matters negotiated by Member States among themselves or with any other third country.
(4) Export Promotion Devices
Member States are encouraged to design a framework to harmonize the functions and operations of export processing zones (EPZ) in order to attract investment and to prevent abuse of the scheme. In this regard, the operational guidelines for EPZs shall be included in the ECOWAS Investment Policy.
(5) Establishment of Special Economic Zones in the ECOWAS Territory
1. The Member States may establish any class or kind of special economic zones anywhere in their national territories in conformity with the ECOWICPF, this Code, and the national laws of the Member States.