(3) Where a host Member State or home Member State believes that an investor or its investment has breached Article 13 or has persistently failed to comply with its obligations under Article 14 or 15, and such investor or investment has been notified by the host Member State or home Member State, as appropriate, either the host Member State or the home Member State may initiate proceedings before a tribunal established by this Supplementary Act.
(4) Where a persistent failure to comply with Article 14 or 15 is raised by a host Member State defendant or an intervener in a dispute settlement proceeding under this Supplementary Act, the tribunal hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or off-setting effects this may have on the merits of a claim or on any damages award in the event of such award.
(5) A host Member State may initiate a counterclaim before any tribunal established pursuant to this Supplementary Act for damages resulting from an alleged breach of the Supplementary Act.
(6) In accordance with the applicable domestic law, a host State or private person or organization, may initiate actions for damages under the domestic law of the host Member State, or the domestic law of the home Member State where such an action relates to the specific conduct of the investor, for damages arising from an alleged breach of the obligations set out in this Supplementary Act. The proceedings in the domestic law Court shall conform to the procedures applicable in the Community Court of Justice.
Chapter IV. Host State Obligations
Article 19. Procedural Fairness
In accordance with the requirements of Article 7
(1) Host Member States shall ensure that their administrative, legislative and judicial processes do not operate in a manner that is arbitrary or that does not deny administrative and procedural fairness to investors and their investments. Investors or investments shall be notified in a timely fashion of administrative or judicial proceedings and changes thereof directly relating to them, unless such notice is contrary to domestic law on an exceptional basis.
(2) Hosts Member States shall act in a manner that does not create a denial of justice injudicial and administrative proceedings.
(3) Administrative decision-making processes shall include the right of administrative appeal of decisions, commensurate with the level of development of the host Member State. Judicial review of administrative decisions should also be available through domestic or regional judicial review processes.
(4) Notwithstanding the differences in administrative, legislative and judicial systems, Member States shall strive to improve the transparency, efficiency, independence and accountability of their legislative, regulatory, administrative and judicial processes, and shall provide review or appeal procedures to ensure that they operate in accordance with applicable domestic laws.
(5) Judicial and administrative review processes shall be open to the public and documents shall be accessible by the public unless prohibited in accordance with domestic and regional laws. Decisions of such bodies shall however be available to the public.
Article 20. Maintenance of Environmental and other Standards
Member States recognize that it is inappropriate to encourage investment by relaxing domestic labour, public health, safety or environmental measures and thus shall not 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 in their territories, of an investment.
Article 21. Minimum Standards for Environmental, Labour and Human Rights Protection
(1) Each Member State shall ensure that its laws and regulations provide for appropriate levels of environmental protection and shall strive to continue to improve those laws and regulations.
(2) Each Member State shall ensure that its laws and regulations provide for high levels of labour and human rights protection appropriate to existing regional and international treaties that it enters into, and shall strive to continue to improve these laws and regulations.
(3) All Member States shall have a domestic social, health and environmental impact assessment laws that meet the minimum standards adopted by the Community on these matters.
(4) All Member States shall ensure that their domestic laws and policies are consistent with the ILO Declaration on Fundamental Principles and Rights of Work, 1998.
(5) All Member States shall ensure that their laws, policies and actions are consistent with the international human rights agreements to
Which they are a Party and at a minimum, with the list of human rights obligations and agreements already adopted.
Article 22. Publication of Information
Host Member States shall make available to the public any investment contracts or agreements with an investor involved in the investment authorization process, subject to the release of confidential business information.
Article 23. Incentives
Potential host Member States should avoid competition for the attraction of investment or investments through incentives or other means that distort regional competition for investments. To this effect, Member States shall initiate negotiations to harmonise the adequate incentive schemes aimed at implementing sensitization and mobilization activities.
Chapter V. Host State Rights
Article 24. Performance Requirements
(1) Member States recognize their obligations regarding trade-related investment measures established in other international agreements to which they are a Party.
(2) Subject to Paragraph (1), host 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 Supplementary Act. 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 Supplementary Act.
(3) Measures covered by this Article may include requirements:
a) to export a given level or percentage of goods or services;
b) to achieve a given level or percentage of domestic content;
c) to purchase, use or accord a preference to goods produced or services provided in its territory;
d) to purchase goods or services from persons in its territory;
e) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange flows associated with such investment;
f) to restrict sales of goods or services in its territory that such investment produces by relating such sales to the volume or value of its exports or foreign exchange earnings; and
g) similar measures intended to promote domestic development.
Article 25. Implementation of Community Rules on Investment Promotion and Facilitation of Investment
(1) The Community shall create regional structures for the implementation of the Community Investment Rules Member States in the area of the promotion and the facilitation of investments.
(2) Member States shall establish or maintain appropriate National structures for the same purpose.
(3) The Member States shall take appropriate steps to facilitate Diaspora investment into the region.
(4) Member States shall adopt relevant regional initiatives to promote investments in the region including investment guarantee mechanisms, integration of capital and other measures.
Article 26. Access to Investor Information
(1) Host 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, including in its home State.
(2) Host States shall protect confidential business information they receive in this regard.
(3) Host States may make the information provided available to the public in the community where the investment may be located, subject to the protection of confidential business information and to other applicable domestic laws.
Chapter VI. Home State Rights and Obligations
Article 27. Assistance and Facilitation for Cross-border Investment
(1) Home States may facilitate cross border investment to other States in the Community in line with ECOWAS Treaty. However such assistance shall be consistent with the development goals and priorities of the receiving States of such investment and must not violate the commitments of Members States to the Community. Such assistance may include:
a) capacity building with respect to host State agencies and programmes on investment promotion and facilitation;
b) insurance programmes based on commercial principles;
c) technology transfer; and
d) periodic trade missions, support for joint business councils and other cooperative activities to promote sustainable investments.
(2) Home States shall inform host States of the form and extent of available assistance as appropriate for the type and size of different investments.
Article 28. Information
(1) Home States shall, on request and in a timely manner, provide to a potential host State such information as is requested and available for the purposes of the host State to meet its obligations and perform
Its duties in relation to an investor or investment under this Supplementary Act and the host State's domestic law. Home States shall protect confidential business information in this regard.
(2) Home States shall, on request, and in a timely manner, provide information relevant to the home State standards that might apply under like circumstances to the investment proposed by its investor, including but not limited to the home State's environmental and social publichealth impact assessment process.
Article 29. Investor Liability In Home State
Home States shall ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, the bringing of court actions on their merits before domestic courts relating to the civil liability of investors for damages resulting from alleged acts or decisions made by investors in relation to their investments in the territory of other Member States. The host State laws on liability shall apply to such proceedings.
Article 30. Offences and Sanctions
(1) Member States shall consider as criminal the following offences and investigate, prosecute and punish the said offences with appropriate sanctions
(a) the offering, solicitation or acceptance of an offer, promise or gift of any pecuniary or other nature, whether directly or through intermediaries, to any public official of the host State, for that official or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties to achieve any favour in relation to a proposed investment or any licenses, permits, contracts or other rights in relation to an investment; and
(b) any acts constituting any of the acts described in Paragraph (A) including incitement, aiding and abetting, conspiracy to commit or authorization of such acts;
Shall be made criminal offences in the host Member State and subject to appropriate criminal enforcement and sanctions.
(2) All home States shall ensure that any money or other forms of benefits encompassed in Paragraph (1) shall not be recoverable or deductible in any fiscal or tax policies.
(3) Home States shall, when possible, provide all available information that might assist a dispute settlement tribunal under this Supplementary Act in determining whether there has been a breach of an anti-corruption obligation.
Chapter VII. Relation to other Agreements
Article 31. Relation to other Investment Agreements and Obligations
(1) All investment agreements entered into by Member States prior to entry into force of this Supplementary Act, shall to the extent that the provisions of such Agreements are inconsistent with the provisions of this Supplementary Act, renegotiate those agreements within a transition period of twenty four (24) months to make them consistent with the present Community Investment Supplementary Act.
(2) Member States shall ensure that all future investment agreements to which they may become Party are fully consistent with this Supplementary Act on Investment; particularly with the balance of rights and obligations it establishes, and the principal features of the dispute settlement system. Member States may be called upon to assess compliance with these obligations.
Article 32. Relation to other International Agreements
(1) Member States shall ensure that the provisions of other international trade agreements to which they are a party are consistent with the provisions of this Supplementary Act. Member States shall collaborate to ensure the effective application of the provisions of this Act within the international trade agreements.
(2) In the event of any dispute arising on this issue, the Member States shall seek to resolve such dispute within the framework of this Supplementary Act as a first step.
Chapter VIII. Dispute Settlement
Article 33. Dispute Settlement Procedures
(1) In the event of a dispute between Member States, or between a Member State and an investor, or between an investor and a host State, the party wishing to raise the dispute shall issue a notice of intention to initiate arbitration to the other potential disputing Party or Parties using a dispute settlement procedure prescribed below.
(2) There shall be a minimum period of six months between the date of a notice of intention to initiate a dispute settlement process under this Supplementary Act, and the date a Party or investor as the case may be, may formally initiate a dispute. During this period, Member States make efforts to reach an amicable settlement of possible disputes. The use of good offices, conciliation, mediation or any other agreed dispute resolution process may also be applied.
(3) Where mediation is adopted as the dispute resolution process, the disputants shall use an approved mediator for this purpose.
(4) If no mediator is chosen by the disputing parties prior to three months before the expiration of the amicable settlement period, a mediator who is not a national of one of the State parties to the dispute shall be appointed. The conditions for the appointment of the said mediator shall be set out in the relevant regulation.
(5) Member States may also establish national mediation centres to facilitate the resolution of disputes between Parties and investors or investments, taking into account regional rules, customs and traditions on investment. Mediators officially appointed to such centres shall be incorporated into the Agency's list through the national mediation centres.
(6) Any dispute between a host Member State and an Investor, as envisaged under this Article that is not amicably settled through mutual discussions may be submitted to arbitration as follows:
(a) a national court;
(b) any national machinery for the settlement of investment disputes;
(c) the relevant national court of the Member States.
(7) Where in respect of any dispute envisaged under this Article, there is disagreement as to the method of dispute settlement to be adopted; the dispute shall be referred to the ECOWAS Court of Justice.
Article 34. Transparency of the Dispute Settlement Procedures
(1) All documents relating to a notice of intention to arbitrate, the settlement of any dispute, the initiation of a panel or appeal, or the pleadings, evidence and decisions in them shall be available only to the parties to the disputes.
(2) Procedural and substantive oral hearings shall be open to the public also.
Article 35. Enforceability of Final Awards/decisions
(1) The Final Awards/Decisions on Investment disputes made by mediations, arbitrations and judicial bodies shall be enforceable
(2) Member States parties to the Supplementary Act shall abide by the decisions of mediation, arbitration and judicial bodies on investment disputes. Notwithstanding this provision, disputant parties may seek redress from competent jurisdictions.
Article 36. Governing Law In Disputes
When a claim is submitted to a panel or an appeal tribunal, it shall be decided in accordance with this Supplementary Act, and subsidiarily, any other national, Community, and international law/rules agreed upon by the parties.
Chapter IX. General Exceptions
Article 37. National Security
Nothing in this Supplementary Act shall be construed:
a. to require a Member State to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interest; or
b. to preclude a Member State from applying measures that it considers necessary for the fulfillment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 38. General Reservations and Exceptions
(1) The provisions of this Supplementary Act, except Article 8, do not apply to any law or other measure of a host State the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, disadvantaged by long-term historic discrimination in its territory, provided that such law or other measure is compatible with the requirements of Article 19.
(2) State Parties may take such measures as are necessary to avoid or abate a balance of payments emergency. Such measures shall be kept in force for as short a time as possible to address the emergency situation. Such measures shall not be subject to this Supplementary Act.
Chapter X. Final Provisions
Article 39. Regional Co-operation
Member States may conclude co-operation agreements on matters covered by this Supplementary Act, as well as on the development of regional capacities in this field.
Article 40. Amendment and Revision
(1) Any Member State, the Council of Ministers, the ECOWAS Parliament and the ECOWAS Commission may submit proposals for the amendment or revision of this Supplementary Act.
(2) Proposals not emanating from the ECOWAS Commission shall be submitted to it. The Commission shall forward all proposals for amendment and revision to the Member States not later than thirty (30) days after their receipt. Upon expiration of the thirty (30) days notice given to Member States, the Authority of Heads of State and Government shall examine the proposals for amendment or revision of the Supplementary Act.
(3) The amendments or revisions shall be adopted by the Authority of Heads of State and Government in accordance with the provisions of Article 9 of the ECOWAS Treaty. The adopted amendments and revisions shall enter into force upon their publication in the Official Journal of the Community.
Article 41. Publication
This Supplementary Act shall be published by the ECOWAS Commission in the Official Journal of the Community within Thirty (30) days of its signature by the Chairperson of the Council of Ministers. It shall also be published by each Member State in its National Gazette within thirty (30) days after notification by the Commission.
Article 42. Entry Into Force
1. This Supplementary Act shall enter into force upon its publication. Consequently, signatory Member States and the Institutions of ECOWAS undertake to commence the implementation of its provisions on its entry into force,
2. This Supplementary Act is annexed to the ECOWAS Treaty of which it is an integral part.
Article 43. Depository Authority
This Supplementary Act shall be deposited with the Commission which shall transmit certified true copies thereof to all Member States and shall register it with the African Union, the United Nations and such other organizations as Council may determine.
Conclusion
IN WITNESS WHEREOF, WE, THE HEADS OF STATE AND GOVERNMENT OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES, HAVE SIGNED THIS SUPPLEMENTARY ACT
DONE AT ABUJA THIS 19 DAY OF DECEMBER 2008
IN SINGLE ORIGINAL IN THE ENGLISH, FRENCH AND PORTUGUESE LANGUAGES, ALL THREE (3) TEXTS BEING EQUALLY AUTHENTIC