(a) exceptions to paragraph (2); or
(b) the programs referred to in paragraph (7).
A Contracting Party shall keep its report up to date by promptly submitting amendments to the Executive Secretariat of ECOWAS. The Meeting of Energy Ministers shall review these reports periodically.
In respect of subparagraph (a) the report may designate parts of the energy sector in which a Contracting Party accords to Investors the Treatment described in paragraph (3).
In respect of subparagraph (b) the review by the Meeting of Energy Ministers may consider the effects of such programmes on competition and Investments.
(9) Notwithstanding any other provision of this Article, the treatment described in paragraphs (3) and (6) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as specified in the corresponding provisions of the applicable international agreements for the protection of Intellectual Property rights to which the respective Contracting Parties are parties.
(10) For the purposes of Article 26, the application by a Contracting Party of a trade-related investment measure as described in Article 5(1) and (2) to an Investment of an Investor existing at the time of such application shall, subject to Article 5(3) and (4) , be considered a breach of an obligation of the former Contracting Party under this Part.
(11) Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to Investments, investment agreements, and investment authorizations.
Article 11. Key Personnel
(1) A Contracting Party shall, subject to its laws and regulations relating to the entry, stay and work of natural persons, examine in good faith requests by Investors and key personnel who are employed by such Investors or by Investments of such Investors, to enter and remain temporarily in its Area to engage in activities connected with the making or the development, management, maintenance, use, enjoyment or disposal of relevant Investments, including the provision of advice or key technical services.
(2) A Contracting Party shall permit Investors which have Investments in its Area, and Investments of such Investors, to employ any key person of the Investor's or the Investment's choice regardless of nationality and citizenship provided that such key Person has been permitted to enter, stay and work in the Area of the Contracting Party and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person.
Article 12. Compensation for Losses
(1) Except where Article 13 applies, an Investor which suffers a loss with respect to any Investment in the Area of a Contracting Party owing to war or other armed conflict, state of national emergency, civil disturbance, or other similar event in that Area, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, treatment which is the most favourable of that which that Contracting Party accords to any other Investor, whether its own Investor, the Investor of any other Contracting Party, or the Investor of any third state.
(2) Without prejudice to paragraph (1), an Investor which, in any of the situations referred to in that paragraph, suffers a loss in the Area of a Contracting Party resulting from
(a) requisitioning of its Investment or part thereof by the latter's forces or authorities; or
(b) destruction of its Investment or part thereof by the latter's forces or authorities, which was not required by the necessity of the situation,
Shall be accorded restitution or compensation which in either case shall be prompt, adequate and effective.
Article 13. Expropriation
(1) Investments of Investors in the Area of any Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as "Expropriation") except where such Expropriation is:
(a) for a purpose which is in the public interest;
(b) not discriminatory;
(c) carried out under due process of law; and
(d) accompanied by the payment of prompt, adequate and effective compensation.
Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the "Valuation Date").
Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment.
(2) The Investor affected shall have a right to prompt review, under the law of the Contracting Party making the Expropriation, by a judicial or other competent and independent authority of that Contracting Party, of its case, of the valuation of its Investment, and of the payment of compensation, in accordance with the principles set out in paragraph (1).
(3) For the avoidance of doubt, Expropriation shall include situations where a Contracting Party expropriates the assets of a company or enterprise in which an Investor has an Investment, including through the ownership of shares.
Article 14. Transfers Related to Investments
(1) Each Contracting Party shall with respect to Investments made in its Area by Investors guarantee the freedom of transfer into and out of its Area, including the transfer of:
(a) the initial capital plus any additional capital for the maintenance and development of an Investment;
(b) Returns;
(c) payments under a contract, including amortization of principal and accrued interest payments pursuant to a loan agreement;
(d) unspent earnings and other remuneration of personnel engaged from abroad in connection with that Investment;
(e) proceeds from the sale or liquidation of all or any part of an Investment;
(f) payments arising out of the settlement of a dispute;
(g) payments of compensation pursuant to Articles 12 and 13.
(2) Transfers under paragraph (1) shall be effected without delay and (except in case of a Return in kind) in a Freely Convertible Currency.
(3) Transfers shall be made at the market rate of exchange existing on the date of transfer with respect to spot transactions in the currency to be transferred. In the absence of a market for foreign exchange, the rate to be used will be the most recent rate applied to inward investments or the most recent exchange rate for conversion of currencies into Special Drawing Rights, whichever is more favourable to the Investor.
(4) Notwithstanding paragraphs (1) to (3), a Contracting Party may protect the rights of creditors, or ensure compliance with laws on the issuing, trading and dealing in securities and the satisfaction of judgements in civil, administrative and criminal adjudicatory proceedings, through the equitable, non-discriminatory, and good faith application of its laws and regulations.
(5) Notwithstanding subparagraph (1)(b), a Contracting Party may restrict the transfer of a Return in kind in circumstances where the Contracting Party is permitted under Article 29(2) or the WTO Agreement to restrict or prohibit the exportation or the sale for export of the product constituting the Return in kind; provided that a Contracting Party shall permit transfers of Returns in kind to be effected as authorized or specified in an investment agreement, investment authorization, or other written agreement between the Contracting Party and either an Investor or its Investment.
Article 15. Subrogation
(1) If a Contracting Party or its designated agency (hereinafter referred to as the "Indemnifying Party") makes a payment under an indemnity or guarantee given in respect of an Investment of an Investor (hereinafter referred to as the "Party Indemnified") in the Area of another Contracting Party (hereinafter referred to as the "Host Party"), the Host Party shall recognize:
(a) the assignment to the Indemnifying Party of all the rights and claims in respect of such Investment; and
(b) the right of the Indemnifying Party to exercise all such rights and enforce such claims by virtue of subrogation.
(2) The Indemnifying Party shall be entitled in all circumstances to:
(a) the same treatment in respect of the rights and claims acquired by it by virtue of the assignment referred to in paragraph (1); and
(b) the same payments due pursuant to those rights and claims,
As the Party Indemnified was entitled to receive by virtue of this Protocol in respect of the Investment concerned.
(3) In any proceeding under Article 26, a Contracting Party shall not assert as a defence, counterclaim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an insurance or guarantee contract.
Article 16. Relation to other Agreements
Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Chapter III or V of this Protocol,
(1) nothing in Chapter III or V of this Protocol shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and
(2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Chapter III or V of this Protocol or from any right to dispute resolution with respect thereto under this Protocol,
Where any such provision is more favourable to the Investor or Investment.
Article 17. Non-Applicable of Chapter III In Certain Circumstances
Each Contracting Party reserves the right to deny the advantages of the provisions of Chapter III to:
(1) a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organized; or
(2) an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party:
(a) does not maintain a diplomatic relationship; or
(b) adopts or maintains measures that:
(i) prohibit transactions with Investors of that state; or
(ii) would be violated or circumvented if the benefits of this Chapter were accorded to Investors of that state or to their Investments.
Chapter IV. Miscellaneous Provisions
Article 18. Sovereignty Over Energy Resources
(1) The Contracting Parties recognize state sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law.
(2) Without affecting the objectives of promoting access to energy resources, and exploration and development thereof on a commercial basis, this Protocol shall in no way prejudice the rules in Contracting Parties governing the system of property ownership of energy resources.
(3) Each state continues to hold in particular the rights to decide the geographical areas within its Area to be made available for exploration and development of its energy resources, the optimization of their recovery and the rate at which they may be depleted or otherwise exploited, to specify and enjoy any taxes, royalties or other financial payments payable by virtue of such exploration and exploitation, and to regulate the environmental and safety aspects of such exploration, development and reclamation within its Area, and to participate in such exploration and exploitation, inter alia, through direct participation by the government or through state enterprises.
(4) The Contracting Parties undertake to facilitate access to energy resources, inter alia, by allocating in a non-discriminatory manner on the basis of published criteria authorizations, licences, concessions and contracts to prospect and explore for or to exploit or extract energy resources.
Article 19. Environmental Aspects
(1) In pursuit of sustainable development and taking into account its obligations under those international agreements concerning the environment to which it is party, each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts occurring either within or outside its Area from all operations within the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting Party shall act in a Cost-Effective manner. In its policies and actions each Contracting Party shall strive to take precautionary measures to prevent or minimize environmental degradation. The Contracting Parties agree that the polluter in the Areas of Contracting Parties, shall bear the cost of the avoidance, elimination, and clean-up of any pollution, as well as the cost of any other consequences of such pollution, including trans-boundary pollution, with due regard to the public interest and without distorting Investment in the Energy Cycle or international trade. Contracting Parties shall accordingly:
(a) take account of environmental considerations throughout the formulation and implementation of their energy policies;
(b) promote market-oriented price formation and a fuller reflection of environmental costs and benefits throughout the Energy Cycle;
(c) encourage co-operation in the attainment of the environmental objectives of this Protocol and co-operation in the field of international environmental standards for the Energy Cycle;
(d) have particular regard to Improving Energy Efficiency, to developing and using renewable energy sources, to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution;
(e) promote the collection and sharing among Contracting Parties of information on environmentally sound and economically efficient energy policies and Cost-Effective practices and technologies;
(f) promote public awareness of the Environmental Impacts of energy systems, of the scope for the prevention or abatement of their adverse Environmental Impacts, and of the costs associated with various prevention or abatement measures;
(g) promote and co-operate in the research, development and application of energy efficient and environmentally sound technologies, practices and processes which will minimize harmful Environmental Impacts of all aspects of the Energy Cycle in an economically efficient manner;
(h) encourage favourable conditions for the transfer and dissemination of such technologies consistent with the adequate and effective protection of Intellectual Property rights;
(i) promote the transparent assessment at an early stage and prior to decision, and subsequent monitoring, of Environmental Impacts of environmentally significant energy investment projects;
(j) promote international awareness and information exchange on Contracting Parties' relevant environmental programmes and standards and on the implementation of those programmes and standards;
(k) participate, upon request, and within their available resources, in the development and implementation of appropriate environmental programmes in their Areas.
(2) At the request of one or more Contracting Parties, disputes concerning the application or interpretation of provisions of this Article shall, to the extent that arrangements for the consideration of such disputes do not exist in other appropriate international fora, be reviewed by the Meeting of Energy Ministers aiming at a solution.
Article 20. Transparency
(1) Laws, regulations, judicial decisions and administrative rulings of general application which affect trade in Energy Materials and Products or Energy-Related Equipment are, in accordance with Article 29(2), among the measures subject to the transparency disciplines of the WTO Agreement.
(2) Laws, regulations, judicial decisions and administrative rulings of general application made effective by any Contracting Party, and agreements in force between Contracting Parties, which affect other matters covered by this Protocol shall also be published promptly in such a manner as to enable Contracting Parties and Investors to become acquainted with them. The provisions of this paragraph shall not require any Contracting Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any Investor.
(3) Each Contracting Party shall designate one or more enquiry points to which requests for information about the above mentioned laws, regulations, judicial decisions and administrative rulings may be addressed and shall communicate promptly such designation to the Executive Secretariat of ECOWAS which shall make it available on request.
Article 21. Taxation
(1) Except as otherwise provided in this Article, nothing in this Protocol shall create rights or impose obligations on Investors with respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of this Protocol, this Article shall prevail to the extent of the inconsistency.
(2) Article 7(3) shall apply to Taxation Measures other than those on income or on capital, except that such provision shall not apply to:
(a) an advantage accorded by a Contracting Party pursuant to the tax provisions of any convention, agreement or arrangement described in subparagraph (7)(a)(ii); or
(b) any Taxation Measure aimed at ensuring the effective collection of taxes, except where the measure of a Contracting Party arbitrarily discriminates against Energy Materials and Products originating in, or destined for the Area of another Contracting Party or arbitrarily restricts benefits accorded under Article 7(3).
(3) Article 10(2) and (6) shall apply to Taxation Measures of the Contracting Parties other than those on income or on capital, except that such provisions shall not apply to:
(a) impose most favoured nation obligations with respect to advantages accorded by a Contracting Party pursuant to the tax provisions of any convention, agreement or arrangement described in subparagraph (7)(a)(ii) or resulting from membership of any Regional Economic Integration Organization; or
(b) any Taxation Measure aimed at ensuring the effective collection of taxes, except where the measure arbitrarily discriminates against an Investor or arbitrarily restricts benefits accorded under the Investment provisions of this Protocol.
(4) Article 29(2) to (8) shall apply to Taxation Measures other than those on income or on capital.
(5) (a) Article 13 shall apply to taxes.
(b) Whenever an issue arises under Article 13, to the extent it pertains to whether a tax constitutes an expropriation or whether a tax alleged to constitute an expropriation is discriminatory, the following provisions shall apply:
(i) The Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor or the Contracting Party, bodies called upon to settle disputes pursuant to Article 26(2)(c) or 27(2) shall make a referral to the relevant Competent Tax Authorities;
(ii) The Competent Tax Authorities shall, within a period of six months of such referral, strive to resolve the issues so referred. Where non-discrimination issues are concerned, the Competent Tax Authorities shall apply the nondiscrimination provisions of the relevant tax convention or, if there is no non-discrimination provision in the relevant tax convention applicable to the tax or no such tax convention is in force between the Contracting Parties concerned, they shall apply the non-discrimination principles under the Model Tax Convention on Income and Capital of the Organisation for Economic Co-operation and Development or any other model agreed upon by the Contracting Parties;
(iii) Bodies called upon to settle disputes pursuant to Article 26(2)(c) or 27(2) may take into account any conclusions arrived at by the Competent Tax Authorities regarding whether the tax is an expropriation. Such bodies shall take into account any conclusions arrived at within the six-month period prescribed in subparagraph (b)(ii) by the Competent Tax Authorities regarding whether the tax is discriminatory. Such bodies may also take into account any conclusions arrived at by the Competent Tax Authorities after the expiry of the six-month period;
(iv) Under no circumstances shall involvement of the Competent Tax Authorities, beyond the end of the six-month period referred to in subparagraph (b)(ii), lead to a delay of proceedings under Articles 26 and 27.
(6) For the avoidance of doubt, Article 14 shall not limit the right of a Contracting Party to impose or collect a tax by withholding or other means.
(7) For the purposes of this Article:
(a) The term "Taxation Measure" includes:
(i) any provision relating to taxes of the domestic law of the Contracting Party or of a political subdivision thereof or a local authority therein; and
(ii) any provision relating to taxes of any convention for the avoidance of double taxation or of any other international agreement or arrangement by which the Contracting Party is bound.
(b) There shall be regarded as taxes on income or on capital all taxes imposed on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and
Gifts, or substantially similar taxes, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
(c) A "Competent Tax Authority" means the competent authority pursuant to a double taxation agreement in force between the Contracting Parties or, when no such agreement is in force, the minister or ministry responsible for taxes or their authorized representatives.
(d) For the avoidance of doubt, the terms "tax provisions" and "taxes" do not include customs duties.
Article 22. State and Privileged Enterprises
(1) Each Contracting Party shall ensure that any state enterprise which it maintains or establishes shall conduct its activities in relation to the sale or provision of goods and services in its Area in a manner consistent with the Contracting Party's obligations under Chapter III of this Protocol.
(2) No Contracting Party shall encourage or require such a state enterprise to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under other provisions of this Protocol.
(3) Each Contracting Party shall ensure that if it establishes or maintains an entity and entrusts the entity with regulatory, administrative or other governmental authority, such entity shall exercise that authority in a manner consistent with the Contracting Party's obligations under this Protocol.
(4) No Contracting Party shall encourage or require any entity to which it grants exclusive or special privileges to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under this Protocol.
(5) For the purposes of this Article, "entity" includes any enterprise, agency or other organization or natural person.
Article 23. Observance by Sub-national Authorities
(1) Each Contracting Party is fully responsible under this Protocol for the observance of all provisions of the Protocol, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its Area.
(2) The dispute settlement provisions in Chapters II, IV and V of this Protocol may be invoked in respect of measures affecting the observance of the Protocol by a Contracting Party which have been taken by regional or local governments or authorities within the Area of the Contracting Party.
Article 24. Exceptions
(1) This Article shall not apply to Articles 12, 13 and 29.
(2) The provisions of this Protocol other than
(a) those referred to in paragraph (1); and
(b) with respect to subparagraph (i), Chapter III of the Protocol
Shall not preclude any Contracting Party from adopting or enforcing any measure
(i) necessary to protect human, animal or plant life or health;
(ii) essential to the acquisition or distribution of Energy Materials and Products in conditions of short supply arising from causes outside the control of that Contracting Party, provided that any such measure shall be consistent with the principles that
(A) all other Contracting Parties are entitled to an equitable share of the international supply of such Energy Materials and Products; and
(B) any such measure that is inconsistent with this Protocol shall be discontinued as soon as the conditions giving rise to it have ceased to exist; or
(iii) designed to benefit Investors who are aboriginal people or socially or economically disadvantaged individuals or groups or their Investments and notified to the Secretariat as such, provided that such measure
(A) has no significant impact on that Contracting Party's economy; and
(B) does not discriminate between Investors not included among those for whom the measure is intended,
Provided that no such measure shall constitute a disguised restriction on Economic Activity in the Energy Sector, or arbitrary or unjustifiable discrimination between Contracting Parties or between Investors or other interested persons of Contracting Parties. Such measures shall be duly motivated and shall not nullify or impair any benefit one or more other Contracting Parties may reasonably expect under this Protocol to an extent greater than is strictly necessary to the stated end.
(3) The provisions of this Protocol other than those referred to in paragraph (1) shall not be construed to prevent any Contracting Party from taking any measure which it considers necessary:
(a) for the protection of its essential security interests including those
(i) relating to the supply of Energy Materials and Products to a military establishment; or
(ii) taken in time of war, armed conflict or other emergency in international relations;
(b) relating to the implementation of national policies respecting the non-proliferation of nuclear weapons or other nuclear explosive devices or needed to fulfil its obligations under this Protocol or any other treaty on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers Guidelines, and other international nuclear non-proliferation obligations or understandings; or
(c) for the maintenance of public order.
Such measure shall not constitute a disguised restriction on Transit.
(4) The provisions of this Protocol which accord most favoured nation treatment shall not oblige any Contracting Party to extend to an Investor any preferential treatment resulting from that Contracting Partys membership of a free-trade area or customs union.
Article 25. Economic Integration Agreements
(1) The provisions of this Protocol shall not be so construed as to oblige a Contracting Party which is party to an Economic Integration Agreement (hereinafter referred to as "EIA") to extend, by means of most favoured nation treatment, to another Contracting Party which is not a party to that EIA, any preferential treatment applicable between the parties to that EIA as a result of their being parties thereto.
(2) For the purposes of paragraph (1), "EIA" means an agreement substantially liberalizing, inter alia, trade and investment, by providing for the absence or elimination of substantially all discrimination between or among parties thereto through the elimination of existing discriminatory measures and/or the prohibition of new or more discriminatory measures, either at the entry into force of that agreement or on the basis of a reasonable time frame.
(3) This Article shall not affect the application of the WTO Agreement.
Chapter V. Dispute Settlement
Article 26. Settlement of Disputes between an Investor and a Contracting Party
(1) Disputes between a Contracting Party and an Investor relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Chapter III shall, if possible, be settled amicably.
(2) If such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:
(a) to the courts or administrative tribunals of the Contracting Party to the dispute;