(b) in accordance with any applicable, previously agreed dispute settlement procedure; or
(c) in accordance with the following paragraphs of this Article.
(3) Each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article.
(4) In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:
(a) (i) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington, 18 March 1965 (hereinafter referred to as the "ICSID Convention"), if the country of origin of the Investor and the Contracting Party to the dispute are both parties to the ICSID Convention; or
(ii) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph (a)(i), under the rules governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the "Additional Facility Rules"), if the country of origin of the Investor or the Contracting Party to the dispute, but not both, is a party to the ICSID Convention; or
(b) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (hereinafter referred to as "UNCITRAL"); or
(c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce; or
(d) an arbitral proceeding under the organization for the Harmonization of Trade Laws in Africa (OHADA).
(5) (a) The consent given in paragraph (3) together with the written consent of the
Investor given pursuant to paragraph (4) shall be considered to satisfy the requirement for:
(i) written consent of the parties to a dispute for purposes of Chapter II of the ICSID Convention and for purposes of the Additional Facility Rules;
(ii) an "agreement in writing" for purposes of article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958 (hereinafter referred to as the "New York Convention"); and
(iii) ' 'the parties to a contract [to] have agreed in writing" for the purposes of article 1 of the UNCITRAL Arbitration Rules.
(b) Any arbitration under this Article shall at the request of any party to the dispute be held in a state that is a party to the New York Convention. Claims submitted to arbitration hereunder shall be considered to arise out of a commercial relationship or transaction for the purposes of article I of that Convention.
(6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Protocol and applicable rules and principles of international law.
(7) An Investor other than a natural person which has the nationality of a Contracting Party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a "national of another Contracting Party" and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a "national of another State".
(8) The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the prompt and effective enforcement in its Area of such awards.
(1) Contracting Parties shall endeavour to settle disputes concerning the application or interpretation of this Protocol through diplomatic channels.
(2) If a dispute has not been settled in accordance with paragraph (1) within a reasonable period of time, either party thereto may, except as otherwise provided in this Protocol or agreed in writing by the Contracting Parties, and except as concerns the application or interpretation of Article 6 or Article 19 upon written notice to the other party to the dispute submit the matter to an ad hoc tribunal under this Article.
(3) Such an ad hoc arbitral tribunal shall be constituted as follows:
(a) The Contracting Party instituting the proceedings shall appoint one member of the tribunal and inform the other Contracting Party to the dispute of its appointment within 30 days of receipt of the notice referred to in paragraph (2) by the other Contracting Party;
(b) Within 60 days of the receipt of the written notice referred to in paragraph (2), the other Contracting Party which is a party to the dispute shall appoint one member. If the appointment is not made within the time limit prescribed, the Contracting Party having instituted the proceedings may, within 90 days of the receipt of the written notice referred to in paragraph (2), request that the appointment be made in accordance with subparagraph (d);
(c) A third member, who may not be a national or citizen of a Contracting Party to the dispute, shall be appointed by the Contracting Parties to the dispute. That member shall be the President of the tribunal. If, within 150 days of the receipt of the notice referred to in paragraph (2), the Contracting Parties are unable to agree on the appointment of a third member, that appointment shall be made, in accordance with subparagraph (d), at the request of either Contracting Party submitted within 180 days of the receipt of that notice;
(d) Appointments requested to be made in accordance with this paragraph shall be made by the Executive Secretary of the Executive Secretariat of ECOWAS within 30 days of the receipt of a request to do so;
(e) Appointments made in accordance with subparagraphs (a) to (d) shall be made with regard to the qualifications and experience, particularly in matters covered by this Protocol, of the members to be appointed;
(f) In the absence of an agreement to the contrary between the Contracting Parties, the Arbitration Rules of UNCITRAL shall govern, except to the extent modified by the Contracting Parties to the dispute or by the arbitrators. The tribunal shall take its decisions by a majority vote of its members;
(g) The tribunal shall decide the dispute in accordance with this Protocol and applicable rules and principles of international law;
(h) The arbitral award shall be final and binding upon the Contracting Parties to the dispute;
(i) The expenses of the tribunal, including the remuneration of its members, shall be borne in equal shares by the Contracting Parties to the dispute. The tribunal may, However, at its discretion direct that a higher proportion of the costs be paid by one of the Contracting Parties to the dispute;
(j) Unless the Contracting Parties to the dispute agree otherwise, the tribunal shall sit in Abuja, Nigeria, and use the facilities of the ECOWAS Court of Justice;
(k) A copy of the award shall be deposited with the Executive Secretariat of ECOWAS which shall make it generally available.
Article 28. Non-application of Article 27 to Certain Disputes
A dispute between Contracting Parties with respect to the application or interpretation of Article 5 or 29 shall not be settled under Article 27 unless the Contracting Parties to the dispute so agree.
Chapter VI. Transitional Provisions
Article 29. Interim Provisions on Trade-related Matters
(1) The provisions of this Article shall apply to trade in Energy Materials and Products and Energy-Related Equipment while any Contracting Party is not a member of the WTO.
(2) Trade in Energy Materials and Products and Energy-Related Equipment between Contracting Parties at least one of which is not a member of the WTO shall be governed, subject to the exceptions and rules provided for in Annex D, by the provisions of the WTO Agreement, as applied and practised with regard to Energy Materials and Products and Energy-Related Equipment by members of the WTO among themselves, as if all Contracting Parties were members of the WTO.
(3) Each signatory to this Protocol, and each state or Regional Economic Integration Organization acceding to this Protocol, shall on the date of its signature or of its deposit of its instrument of accession provide to the Executive Secretariat of ECOWAS a list of all customs duties and other charges levied on Energy Materials and Products at the time of importation or exportation, notifying the level of such duties and charges applied on such date of signature or deposit. Any changes to such duties or other charges shall be notified to the Executive Secretariat of ECOWAS, which shall inform the Contracting Parties of such changes.
(4) Each Contracting Party shall endeavour not to increase any customs duty or tariff rate or other charge levied at the time of importation or exportation:
(a) in the case of the importation of Energy Materials and Products listed in Annex A or Energy-Related Equipment listed in the document to be adopted by the Meeting of Energy Ministers under the terms of Article 30 of this Protocol and described in Part I of the Schedule relating to the Contracting Party referred to in article II of the GATT 1994, above the level set forth in that Schedule, if the Contracting Party is a member of the WTO;
(b) in the case of the exportation of Energy Materials and Products listed in Annex A or Energy-Related Equipment listed in the document to be adopted by the Meeting of Energy Ministers under the terms of Article 30 of this Protocol, and that of their importation if the Contracting Party is not a member of the WTO, above the level most recently notified to the Executive Secretariat of ECOWAS, except as permitted by the provisions made applicable by paragraph (2).
(5) A Contracting Party may increase such customs duty or other charge above the level referred to in paragraph (4) only if:
(a) in the case of a customs duty or other charge levied at the time of importation, such action is not inconsistent with the applicable provisions of the WTO Agreement, other than those provisions of the WTO Agreement listed in Annex D; or
(b) it has, to the fullest extent practicable under its legislative procedures, notified the Executive Secretariat of ECOWAS of its proposal for such an increase, given other interested Contracting Parties reasonable opportunity for consultation with respect to its proposal, and accorded consideration to any representations from such Contracting Parties.
(6) In respect of trade between Contracting Parties at least one of which is not a member of the WTO, no such Contracting Party shall increase any customs duty or charge of any kind imposed on or in connection with importation or exportation of Energy Materials and Products listed in Annex A or Energy-Related Equipment listed in the Document to be adopted by the Meeting of Energy Ministers under the terms of Article 30 of this Protocol above the lowest of the levels applied on the date of the decision by the Meeting of Energy Ministers to list the particular item in the relevant Annex or document. A Contracting Party may increase such customs duty or other charge above that level only if:
(a) in case of a customs duty or other charge imposed on or in connection with importation, such action is not inconsistent with the applicable provisions of the WTO Agreement, other than those provisions of the WTO Agreement listed in Annex D; or
(b) in exceptional circumstances not elsewhere provided for in this Protocol, the Meeting of Energy Ministers decides to waive the obligation otherwise imposed on a Contracting Party by this paragraph, consenting to an increase in a customs duty, subject to any conditions the Meeting of Energy Ministers may impose.
(7) Other duties and charges imposed on or in connection with importation or exportation of Energy Materials and Products or Energy-Related Equipment shall be subject to the provisions of the Understanding on the Interpretation of Article II: 1(b) of the GATT 1994 as modified according to Annex D.
(8) Annex E shall apply:
(a) to disputes regarding compliance with provisions applicable to trade under this Article;
(b) to disputes regarding the application by a Contracting Party of any measure, whether or not it conflicts with the provisions of this Article, which is considered by another Contracting Party to nullify or impair any benefit accruing to it directly or indirectly under this Article; and
(c) unless the Contracting Parties to the dispute agree otherwise, to disputes regarding compliance with Article 5 between Contracting Parties at least one of which is not a member of the WTO, except that Annex E shall not apply to any dispute between contracting Parties, the substance of which arises under an agreement that establishes a free-trade area or a customs union as described in article XXIV of the GATT 1994.
Article 30. Energy-related Equipment
The Meeting of Energy Ministers shall approve a list of Energy-Related Equipment to be included in the trade provisions of this Protocol. The list of Energy-Related Equipment may not be exhaustive. If an Investor needs to use equipment not included in the list, it must submit to the Contracting Party of the area in which it is acting an additional list for approval.
Chapter VII. Structure and Institutions
Article 31. Implementation
(1) The Meeting of the Energy Ministers of the ECOWAS Member States shall be the
Organ responsible for implementation of the West African Energy Protocol.
(2) The functions of the Meeting of Energy Ministers shall be to:
(a) carry out the duties assigned to it by this Protocol and any other Agreements under Article 37 of this Protocol;
(b) keep under review and facilitate the implementation of the principles and provisions of this Protocol and other Agreements under Article 37 of this Protocol;
(c) facilitate in accordance with this Protocol and other Agreements under Article 37 of this Protocol the co-ordination of appropriate general measures to carry out the principles of this Protocol;
(d) consider and adopt programmes of work to be carried out by the ECOWAS Executive Secretariat;
(e) consider and approve or adopt the terms of any headquarters or other agreement, including privileges and immunities considered necessary for the Executive Secretariat of ECOWAS;
(f) encourage co-operative efforts aimed at facilitating and promoting market-oriented reforms and modernization of energy sectors in the countries of West Africa;
(g) authorize and approve the terms of reference for the negotiation of protocols, and consider and adopt the texts thereof and of amendments thereto;
(h) authorize the negotiation of declarations, and approve their issuance;
(i) decide on accessions to this Protocol;
(j) authorize the negotiation of and consider and approve or adopt association agreements;
(k) consider and adopt texts of amendments to this Protocol;
(l) consider and approve modifications of and technical changes to the Annexes to this Protocol;
(m) Commit and bind Contracting Parties with respect to obligations for facilitating the creation and execution of energy systems, programmes and projects within the framework of implementation of this Protocol.
(n) Establish regulatory bodies for energy systems, programmes and projects within the framework of implementation of this Protocol.
(3) In the performance of its duties, the Meeting of Energy Ministers, through the Secretariat, shall co-operate with and make as full a use as possible, consistent with economy and efficiency, of the services and programmes of other institutions and organizations with established competence in matters related to the objectives of this Protocol.
(4) The Meeting of Energy Ministers may establish such subsidiary bodies as it considers appropriate for the performance of its duties.
(5) The Meeting of Energy Ministers shall consider and adopt rules of procedure and financial rules.
Article 32. Secretariat
(1) In accomplishing its mission, the Meeting of Energy Ministers shall receive the support of the Executive Secretariat of ECOWAS which is responsible for implementing the decisions of the Community.
(2) The Executive Secretariat of ECOWAS shall provide to the Meeting of Energy Ministers all assistance necessary for accomplishment of its mission and shall exercise the functions assigned to it under this Protocol or any other Agreement under Article 37 of this Protocol and any other functions that may be assigned to it by the Meeting of Energy Ministers.
Article 33. Voting
(1) Decisions of the Meeting of Energy Ministers shall be by consensus, or a simple majority, of members present at the meeting.
(2) Decisions may not be taken unless a minimum of two thirds of the Member States are represented at the meeting.
Chapter VIII. Final Provisions
Article 34. Ratification
This Protocol shall be subject to ratification by signatories. Instruments of ratification, acceptance or approval shall be deposited with the Executive Secretariat of ECOWAS in Abuja, Nigeria.
Article 35. Accession
This Protocol shall be open for accession, from the date on which the Protocol is closed for signature, by states and Regional Economic Integration Organizations which are Member States of ECOWAS on terms to be approved by the Meeting of Energy Ministers. The instruments of accession shall be deposited with the Executive Secretariat of ECOWAS.
Article 36. Amendments and Revisions
(1) Any Contracting Party may submit proposals for amending or revising this Protocol.
(2) All such proposals should be submitted to the Executive Secretariat of the ECOWAS which shall distribute them to the Member States within thirty (30) days after their receipt. The Meeting of the Energy Ministers of ECOWAS will examine the amendments or revisions proposals within three (3) months accorded to the Contracting Parties.
(3) The amendments and revisions shall be adopted by the Meeting of the Energy Ministers of ECOWAS in accordance with the provisions of article 33 of this Protocol and submitted to all the Contracting Parties for ratification according to their respective constitutional procedures. They will enter into force and effect in accordance with the provisions of Article 39 of this Protocol.
Article 37. Energy Protocols, Agreements and Declarations
(1) The Meeting of Energy Ministers may authorize the negotiation of a number of Agreements or declarations in order to pursue the objectives and principles of this Protocol.
(2) Any signatory to this Protocol may participate in such negotiation.
(3) A state or Regional Economic Integration Organization shall not become a party to any agreement referred to in paragraph (1), above, or declaration unless it is, or becomes at the same time, a signatory and a Contracting Party to this Protocol.
(4) Subject to paragraph (3) and subparagraph (6)(a), final provisions applying to a protocol shall be defined in that protocol.
(5) An Agreement shall apply only to the Contracting Parties which consent to be bound by it, and shall not derogate from the rights and obligations of those Contracting Parties not party to the Agreement.
(6) (a) An Agreement may assign duties to the Meeting of Energy Ministers and
Functions to the Executive Secretariat of ECOWAS, provided that no such assignment may be made by an amendment to an Agreement unless that amendment is approved by the Meeting of Energy Ministers, whose approval shall not be subject to any provisions of the Agreement which are authorized by subparagraph (b).
(b) An Agreement which provides for decisions thereunder to be taken by the Meeting of Energy Ministers may, subject to subparagraph (a), provide with respect to such decisions:
(i) for voting rules other than those contained in Article 33;
(ii) that only parties to the Agreement shall be considered to be Contracting Parties for the purposes of Article 33 or eligible to vote under the rules provided for in the Agreement.
Article 38. Association Agreements
(1) The Meeting of Energy Ministers may authorize the negotiation of association agreements with states or Regional Economic Integration Organizations, or with international organizations, in order to pursue the objectives and principles of this Protocol and the provisions of this Protocol or any other Agreements such as those referred to in Article 37.
(2) The relationship established with and the rights enjoyed and obligations incurred by an associating state, Regional Economic Integration Organization, or international organization shall be appropriate to the particular circumstances of the association, and in each case shall be set out in the association agreement.
Article 39. Entry Into Force
(1) This Protocol and the attached annexes which form an integral part thereof shall enter into force on the ninetieth day after the date of deposit of the ninth instrument of ratification thereof, or of accession thereto, by an ECOWAS Member State.
(2) For each state or Regional Economic Integration Organization which ratifies this Protocol or accedes thereto after the deposit of the ninth instrument of ratification it shall enter into force on the ninetieth day after the date of deposit by such state or Regional Economic Integration Organization of its instrument of ratification, or accession.
(3) For the purposes of paragraph (1), any instrument deposited by a Regional Economic Integration Organization shall not be counted as additional to those deposited by Member States of ECOWAS.
Article 40. Provisional Application
(1) Each signatory agrees to apply this Protocol provisionally pending its entry into force for such signatory in accordance with Article 39, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.
(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the
Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.
(b) Neither a signatory which makes a declaration in accordance with subparagraph
(a) nor Investors of that signatory may claim the benefits of provisional application under paragraph (1).
(c) Notwithstanding subparagraph (a), any signatory making a declaration referred to in subparagraph (a) shall apply Chapter VII provisionally pending the entry into force of the Protocol for such signatory in accordance with Article 39, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.
(3) (a) Any signatory may terminate its provisional application of this Protocol by
Written notification to the Depository of its intention not to become a Contracting Party to the Protocol. Termination of provisional application for any signatory shall take effect upon the expiration of 60 days from the date on which such signatory's written notification is received by the Depository.
(b) In the event that a signatory terminates provisional application under subparagraph (a), the obligation of the signatory under paragraph (1) to apply Chapters III and V with respect to any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination.
(4) Pending the entry into force of this Protocol the signatories shall meet periodically in the provisional Meeting of Energy Ministers, the first meeting of which shall be convened by the ECOWAS Executive Secretariat.
(5) A state or Regional Economic Integration Organization which, prior to this Protocol's entry into force, accedes to the Protocol in accordance with Article 35 shall, pending the Protocols entry into force, have the rights and assume the obligations of a signatory under this Article.
Article 41. Reservations
No reservations shall be made to this Protocol.
Article 42. Withdrawal
(1) At any time after five years from the date on which this Protocol has entered into force for a Contracting Party, that Contracting Party may give written notification to the Depository of its withdrawal from the Protocol.
(2) Any such withdrawal shall take effect upon the expiry of one year after the date of the receipt of the notification by the Depository, or on such later date as may be specified in the notification of withdrawal.
(3) The provisions of this Protocol shall continue to apply to Investments made by Investors in the Area of a withdrawing Contracting Party for a period of 20 years from such date of withdrawal.
(4) All Agreements referred to in Article 37(1) to which a Contracting Party is party shall cease to be in force for that Contracting Party on the effective date of its withdrawal from this Protocol.
Article 43. Energy Efficiency
(1) Basic Provisions
(a) Contracting Parties shall co-operate and, as appropriate, assist each other in developing and implementing energy efficiency policies, laws and regulations.
(b) Contracting Parties shall establish energy efficiency policies and appropriate legal and regulatory frameworks which promote, inter alia:
(i) efficient functioning of market mechanisms including market-
Oriented price formation and a fuller reflection of environmental costs and benefits;
(ii) reduction of barriers to energy efficiency, thus stimulating investments;
(iii) mechanisms for financing energy efficiency initiatives;
(iv) education and awareness;
(v) dissemination and transfer of technologies;
(vi) transparency of legal and regulatory frameworks.
(c) Contracting Parties shall strive to achieve the full benefit of energy efficiency throughout the Energy Cycle. To this end they shall, to the best of their competence, formulate and implement energy efficiency policies and co-operative or coordinated actions based on Cost-Effectiveness and economic efficiency, taking due account of environmental aspects.
(d) Energy efficiency policies shall include both short-term measures for the adjustment of previous practices and long-term measures to improve energy efficiency throughout the Energy Cycle.
(e) When co-operating to achieve the objectives of this Protocol, Contracting Parties shall take into account the differences in adverse effects and abatement costs between Contracting Parties.
(f) Contracting Parties recognize the vital role of the private sector. They shall encourage action by energy utilities, responsible authorities and specialised agencies, and close co-operation between industry and administrations.
(g) Co-operative or coordinated action shall take into account relevant principles adopted in international agreements, aimed at protection and improvement of the environment, to which Contracting Parties are parties.
(h) Contracting Parties shall take full advantage of the work and expertise of competent international or other bodies and shall take care to avoid duplication.
(2) Division of Responsibility and Coordination: Each Contracting Party shall strive to ensure that energy efficiency policies are coordinated among all of its responsible authorities.
(3) Domestic Programmes
(a) In order to achieve the policy aims formulated according to Article 5, each