Title

RECIPROCAL INVESTMENT PROMOTION AND PROTECTION AGREEMENT BETWEEN THE GOVERNMENT OF THE KINGDOM OF MOROCCO AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA

Preamble

The Government of the Kingdom of Morocco; and the Government of the Federal Republic of Nigeria hereinafter referred to as the "Parties"

DESIRING to strengthen the bonds of friendship and cooperation between the State Parties;

RECOGNIZING the important contribution investment can make to the sustainable development of the state parties, including the reduction of poverty, increase of productive capacity, economic growth, the transfer of technology, and the furtherance of human rights and human development;

SEEKING to promote, encourage and increase investment opportunities that enhance sustainable development within the territories of the state parties;

UNDERSTANDING that sustainable development requires the fulfillment ofthe economic, social and environmental pillars that are embedded within the concept;

REAFFIRMING the right of the State Parties to regulate and to introduce new measures relating to investments in their territories in order to meet national policy objectives and taking into account any asymmetries with respect to the measures in place, the particular need of developing countries to exercise this right;

SEEKING an overall balance of the rights and obligations among the State Parties, the investors, and the investments under this Agreement;

HAVE AGREED AS FOLLOWS:

Body

Article 1. Definitions

For the purpose of this agreement and unless stated otherwise the following words and terms shall have this meanings:

"Investor" refers to:

1. Any individual who is a natural person or a permanent resident of a Party, according to its laws, that makes an investment in the territory of the other Party.

2. Any legal entity including companies, corporations, commercial associations provided that legal entityis :

(a) Established or constituted or organized in accordance with the laws of a Party

(b) Having its headquarters and the center of its economic activity or principal place of business in the territory of that Party

(c) That invests in the territory of the other Party

(d) Legal entities which not constituted under the law of that Party shall be but controlled (1), directly or indirectly by a natural person as defined in 1) or by legal entities as defined in 2).

3. This Agreement shall not apply to investments by natural persons who are nationals of both Parties and who are permanent resident of a Host Party.

"Investment" Investment means an enterprise, within the territory of one State established, acquired, expanded or operated, in good faith, by an investor of the other State in accordance with law of the Party in whose territory the investment is made taken together with the asset of the enterprise which contribute sustainable development of that Party and has the characteristics of an investment involving a commitment of capital or other similar resources, pending profit, risk-taking and certain duration. An enterprise will possess the following assets:

(a) Shares, stocks, debentures and other instruments of the enterprise or another enterprise;

(b) A debt security of another enterprise;

(c) Loans to an enterprise;

(d) Movable or immovable property and other property rights such as mortgages, liens or pledges;

(e) Claims to money or to any performance under contract having a financial value;

(f) Copyrights and intellectual property rights such as patents, trademarks, industrial designs and trade names, to the extent they are recognized under the law of the Host State;

(g) Rights conferred by law or under contract, including licenses to cultivate, extract or exploit natural resources;

For greater certainty, Investment does not include:

(a) Debt securities issued by a government or loans to a government

(b) Portfolio investments

(c) Claims to money that arise solely from commercial contracts for the sale of goods or services by a national or enterprise in the territory of another party, or the extension of credit in connection with a commercial transaction, or any claims to money that do not involve interest set out in sub paragraphs (a) and (g) above.

(d) Letters of bank credit;and

(e) Claims to money with maturities less than three years

"Party" means individually as a Party and collectively as Parties.

"Returns" means output, net of tax, from an investment and money yielded by an investment and includes, in particular although not exclusively, profits, dividends, interest, capital gains, royalties and fees;

"Freely usable currency" means a currency widely used to make payments for international transactions subject to parties laws and investment policies applicable from time to time.

"Environmental Impact Assessment" means the process used to predict the environmental consequences (positive or negative) of a plan, policy, program or project prior to move forward with the proposed action.

"Social Impact Assessment" means the process of assessing or estimating in advance the social consequences that are likely to follow from specific actions project development, particularly in the context of appropriate national, state or provincial environment policy legislation.

"Territory" means;

(a) The land tetritory, internal waters and territorial sea, including the air space above the areas ofthe Party;

(b) be exclusive economic zone of the Party as determined by its domestic law, consistent with the Patt V of the united Nations Convention of Law of the Sea;

(c) The Continental shelf of the Party as determined by its domestic law, consistent with Part VI of the United Nations Convention of Law of the Sea.

"Host Party" means the Party in whose territory the investment is located.

Article 2. Objective of the Agreement

The objective of this Agreement is to promote and protect co-operation between the Parties in order to facilitate and encourage mutual investment. This objective shall be achieved through institutional governance as defined in this Agreement, by the establishment of an agenda on investment co-operation, facilitation and by the development of mechanisms for risk mitigation, prevention and resolution of disputes, among other instruments mutually agreed by the Patties.

Article 3. Scope of the Agreement

This Agreement shall apply to all Investors and Investments made by investors of either Party in the territory of the other Party, accepted or admitted as such in accordance with its laws and regulations, whether made before or after the coming into force of this Agreement, but shall not apply to any dispute raised before the entry into force of this Agreement.

Article 4. Institutional Governance

1. For the purpose of this agreement, the Parties hereby establish a Joint Committee for the administration of this Agreement (hereinafter referred to as "Joint Committee").

2. The Joint Committee shall be composed of representatives as designated by both Parties.

3. The Joint Committee shall meet at such times, in such places and though such means as the Parties may agree. Meetings shall be held, whenever it is necessary, with alternating Chair between the Parties.

4. The joint Committee shall have the following responsibilities:

(a) Monitor the implementation and execution of this Agreement;

(b) Debate and share opportunities for the expansion of mutual Investment;

(c) Request and welcome the participation of the private sector and civil society, when applicable, on specific issues related to the work of the Joint Committee;

(d) Seek to resolve any issues or disputes concerning Parties' investment in an amicable manner

5. The joint Committee shall not replace or impair in any way, any other agreement or the diplomatic channels existing between the Parties.

Article 5. Exchange of Investment Information

1. The Parties shall exchange information concerning investment, particularly through the Joint Committee. Whenever possible, the information shall, reveal, in advance, useful data on procedures and special requirements for investment, business opportunities and expectations for major parties projects.

2. For this purpose, the Party shall provide, when requested, with clarity and respect for the level of protection granted, information, related, in particular, to the following items:

(a) Regulatory conditions for investment.

(b) Specific incentives and legal landmarks that may affect investment;

(c) Public policies and legal landmarks that may affect investment;

(d) Legal framework for investment, including legislation on the establishment of companies and joint ventures;

(e) Related international treaties.

(f) Trade procedures and tax regimes;

(g) Statistical information on the market for goods and services;

(h) Available infrastructure and public services;

(i) Social and labor requirements;

(j) Information on specific economic sectors or segments previously identified by the Parties; and

(k) State and Local government's projects and understandings on investment.

3. The Parties shall also discuss initiatives to strengthen the role of investors in Public-Private Partnerships (PPPs), especially though greater transparency and early access to regulatory information.

4. The Parties shall fully respect the level of protection granted to such information as required by the submitting Party.

5. The Parties shall encourage the involvement of the private sector, as a key player directly interested in the best results derived from this Agreement.

6. The Parties shall disseminate among the relevant business sectors, general information on investment, regulatory frameworks and business opportunities in the territory o f the other Party.

Article 6. National Treatment and the Most Favoured Nation Clause

1. Each Party, as far as possible, shall encourage and create favorable conditions for investors of the other Party to make investments in its territory, and admit such investments in accordance with its laws and regulations in force.

2. Each Party shall allow investors of the other Party to invest and contract business in conditions no less favourable than that accorded, in like circumstances, to investments of its own investors in accordance with its laws and regulations.

3. For greater certainty-, references to "like circumstances" in paragraph 2 requires an overall examination on a case-by-case basis of all the circumstances of an investment including, but not limited to:

(a) Its effects on third person and the local community;

(b) Its effects on the local, regional or national environment, including the cumulative effects ofall investments within a jurisdiction on the environment;

(c) The sector in which the investor is in;

(d) The aim of the measure concerned;

(f) The regulatory process generally applied in relation to the measure concerned;

The examination referred to in this paragraph shall not be limited to or be biased toward anyone factor.

4. Each Party shall allow investors of the other Party to make an investment and conduct business in conditions no less favourable than that accorded, in like circumstances, to investors o f another third state.

5. The treatment granted under 1,2,3 and 4 of this article shall not be construed as to preclude national security, public security or public order nor oblige one Party to extend to the investors of the other Party and their investment the benefit of any treatment, preference or privilege resulting from:

(a) Its membership of, or association with, any existing or future free trade areas, customs union, economic union, common market or monetary union, or

(b) An existing or future free trade agreement

(c) Any international agreement or any domestic legislation relating wholly or mainly to taxation.

(d) Other Agreement for the avoidance of double taxation or by virtue of its participation in customs union and free trade areas, or on basis of reciprocity with a third country.

6. As soon as practicable after a party adopts a measure under this Article that Party shall inform the Other party of the justification for the measures adopted, as well as the scope and relevance o f such measures.

Article 7. Minimum Standard of Treatment

1. Each Party shall accord to investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.

2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of "fair and equitable treatment" and "full protection and security" does not require treatment in addition to or beyond that which is required by that standard, and does not create additional substantive rights. The obligation in paragraph 1 to provide:

(a) "fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle o f due process embodied in the principal legal systems o f a Party.

(b) "full protection and security" requires each Party to provide the level of police protection required under customary international law.

3. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.

4. For greater clarity, the Parties confirm their shared understanding that 'customary international Law' generally and as specifically referred in this Agreement results from a general and consistent practice ofStates that they follow from a sense of legal obligation. The Parties also confirm that the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interest o f aliens.

Article 8. Expropriation and Compensation

1. A Party shall not nationalize or expropriate an investment directly or indirectly through measures having an effect equivalent to nationalization or expropriation except:

(a) For a public purpose;

(b) In a non discrimination manner;

(c) On payment of prompt, adequate, and effective compensation; and

(d) In accordance with due process oflaw

2. For the purpose of this Agreement,

(a) Indirect expropriation results from a series of measures of a Party having an equivalent effect of direct expropriation without formal transfer of title or outright seizure

(b) The determination of whether a measure or senes of measures of a Party constitute indirect expropriation requites a case-to-case, fact based inquiry into various factors including, but not limited to he scope of the measures or series of measures and their interference with the reasonable and distinguishable concerning the investmenl:

3. The compensation referred to in paragraph 1 shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place and must not reflect a change in value occurring because the intended expropriation had become known earlier.

4. Compensation shall be paid without delay and shall be fully realizable and freely transferable

5. If the fair market value is denominated in a freely convertible currency, the compensation referred to in paragraph 3 shall be no less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.

6. If the fair market value is denominated in a currency that is not freely usable, the compensation referred to in paragraph 3 - converted into the currency of payment at the market rate of exchange prevailing on the date of payment, shall be no less than;

(a) The fair mru:ket value on the date of expropriation, converted into freely usable currency at the market rate ofexchange prevailingon that date, plus

(b) Interest, at a commercially reasonable rate for that freely usable currency, occurred from the date of expropriation until the date of payment.

7. The affected investor shall have a right under the law of the expropriating party to a review of its case and the valuation of its investment by a judicial or other independent authority of that party in accordance with the principles set out in this article.

8. This Article does not apply to the issuance of a compulsory licence granted in relation to intellectual property rights or to the revocation, limitation or creation of an intellectual property right, to the extent that the issuance, revocation, limitation or creation is consistent with the WTO Agreement.

Article 9. Compensation for Damages and Loss

1. Investors of one Party whose investments in the territory of the other Party suffer losses due to war, armed conflict, revolution, state of national emergency, insurrection, civil disturbances or other similar events, shall be accorded by the latter Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable treatment than that which the latter Party accords to its own investors or to investors of a third State.

2. Without prejudice to paragraph 1 of this Article, investors of one Party who, in any of the situations referred to in that paragraph suffer losses in the territory of the other Contracting Party resulting from:

(a) Requisitioning of their property by its forces or authorities; or

(b) Destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation;

Shall be accorded restitution or adequate compensation.

Article 10. Transparency

1. In line with the principles of this Agreement, each Party shall ensure that all measures that affect investment are administered in a reasonable, objective and impartial manner, in accordance with its legal system.

2. Each Party shall, wherever possible, ensure that its laws, regulations and administrative rulings of general application with respect to matters covered by this Agreement, are published in the shortest possible time and be accessible, if possible, by electronic means, so as to enable interested people and the other Party to become acquainted.

3. The Parties shall give due publicity of this Agreement to their respective and private financial agents, responsible for technical evaluation of risks and the approval of loans, credits, guarantees and related insurances for investment in the territory of the other Party.

4. The Parries agree to consult periodically on ways to improve the transparency practices set out in this Article, publication of laws and decisions relating to investment.

5. The Parries agree that in the event of resort to arbitration, the arbitral proceedings shall be transparent. For greater clarity, the notice of arbitration, the pleadings memorials, brief submitted to the tribunal, written submissions, minutes of transcripts of hearings, orders, awards and decisions of the tribunal shall be available to the public. The tribunal shall conduct hearings open to the public provided that any protected information that is submitted to the tribunal shall be protected in accordance with the applicable law.

Article 11. Transfers

1. Each Party shall in accordance with legal system and its international obligations, allow the free transfer of funds related to an investment, namely;

(a) Capital and additional capital amounts used to maintain and increase investment;

(b) Profits, dividends, interest, capital, gains, royalty payments, management fees, technical assistance and other fees, returns in kind

(c) Repayments of any loan including interest thereon, relating directly to the investment.

(d) Proceeds from sales of their shares;

(e) Proceeds received by investors in case of sale or partial sale or liquidation;

(f) Payments arising from an investment dispute/ award;

(g) The amount of compensation in case of expropriation;

(h) Salaries and other remuneration going to nationals of one Contracting Party who have been allowed to work in the territory of the other Contracting Party in connection with an investment.

2. Each Party may prevent or delay a transfer through the equitable, non-discriminatory and good faith application of its laws and regulations relating to:

(a) Bankruptcy, insolvency, or the protection of rights of creditors;

(b) Issuing, trading, or dealing in securities, features, options or derivatives;

(c) Criminal or penal offences;

(d) Financial reporting or record keeping or transfers when necessary to assist law enforcement or financial regulatory authorities; or

(e) Ensuring compliance with orders or judgments in judicial or administrative proceedings.

3. Each Party shall permit transfers relating to a covered investment to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.

4. It is understood that this Agreement does not prevent a Party from requiring, prior to transfers relating to an investment, from investors to fulfill their tax obligations related to the investment in question.