Portsmouth Law School

Our PhD students

Abubakar Umar

  • Role Title: PhD Student
  • Address: Richmond Building Portland Street Portsmouth PO1 3DE
  • Telephone: TBA
  • Email: UP690841@myport.ac.uk
  • Department: School of Law
  • Faculty: Portsmouth Business School

Biography

Title: National Treatment Under International Investment Law: Balancing Between Investors Right to National Treatment and Host States Right to Develop Empowerment Laws in the Energy and Natural Resources Sector.

Background

Foreign Direct Investment is largely determined by customary international law, Bilateral Investment Treaties (BITs) and other investment treaties entered into by respective states[1]. Central to these laws are the principles of national treatment, most- favoured- nation treatment, prohibition of arbitrary and discriminatory measures and full protection and security.

These principles were said to have evolved and became intrinsic elements of these investment treaties so as to promote and protect Foreign Direct Investments. Most of these BITs use a wide definition of investment, protecting ‘every kind of asset’, moveable and immovable as well as other rights in rem[2]. However, developing states prefer a more narrow definition of investment in their domestic or national law.

National treatment is a principle of customary international law that has also found favour in virtually all Bilateral Investment Treaties BITs, for example Article 3 of the US 2004 Model BIT.

Research Problem

On the 22nd of April, 2010, Nigeria passed the Nigerian Oil and Gas Industry Content Development Act into law.[3]  The central or main objective of the Act is ensuring the development of indigenous service providers and the effective utilization of Nigerian goods and services in these sectors.

The problem is how should international investment law respond to the conflicting interests and viewpoints between the foreign investors and the host states regarding the determination of ‘national treatment pursuant to states empowerment or local content laws.

 

The Research Questions

  1. How do investment tribunals balance between the protection of national treatment under the BITs and the host state’s measure to develop its local content?
  2. To what extent can the notion of national treatment under international investment law be streamlined with that of the principle of non-discrimination under international trade law?
  3. What are the normative contents of the state’s right to regulate, including the state’s right to enact local content and empowerment laws?
  4. To what extent can the concept of sustainable development be used to re-balance the investor’s view of legitimate expectation and the host state’s drive for sustainable investment?

 

Methodology

  1. Doctrinal Approach:

Using doctrinal approach, the research will critically examine the national treatment provisions under international investment law and international trade law. The research will doctrinally analyze arbitral awards under ICSID, NAFTA and other ad hoc tribunals and arbitral institutions.

 

  1. Comparative Approach:

The research will further use comparative legal analysis to compare the conception of national treatment under international investment law and that of non-discrimination ( and national treatment also) under the WTO jurisprudence with a view to learn from the vast jurisprudence of WTO in this areas.