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 of the economic, social and environmental pillars that are embedded within the concept;
REAFFIRMING the tight 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:
Any legal entity including companies, corporations, commercial associations provided that legal entityis :
“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:
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.
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.
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.
EXCHANGE OF INVESTMENT INFORMATION
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.
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:
NATIONAL TREATMENT AND THE MOST FAVOURED NATION PROVISIONS
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:
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:
MINIMUM STANDARD OF TREATMENT
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:
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 of States 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 of aliens.
EXPRPRIATION AND COMPENSATION
A Party shall not nationalize or expropriate an investment directly or indirectly through measures having an effect equivalent to nationalization or expropriation except:
the determination of whether a measure or series of measures of o Party constitute indirect expropriation requires 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 investment.
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 expropriationuntil the date of payment.
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 :
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
COMPENSATION FOR DAMAGES AND LOSS
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.
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:
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.
The Parties 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.
Each Party shall in accordance with legal system and its international obligations, allow the free transfer of funds related to an investment, namely;
Each Party may prevent or delay a transfer through the equitable, nondiscriminatory and good faith application of its laws and regulations relating to:
TEMPORARY SEFEGUARD MEASURE
It is recognized that particular pressures on the balance of payments of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its program of economic development
INVESTMENT AND ENVIRONMENT
The Parties recognize that each Party retains the right to exercise discretion with respect to regulatory, compliance, investigatory, and prosecutorial matters and to make decisions regarding the allocation of resources to enforcement with respect to other environmental matters determined to have higher priorities.
Nothing in this Agreement shall be constructed to prevent a Party from adopting maintaining or enforcing, in a non-discriminatory manner, any measure otherwise consistent with this Agreement thatit considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental and social concerns.
Investors or the investment shall comply with environmental assessment screening and assessment processes applicable to their proposed investments prior to their establishment, as required by the laws of the host state for such an investment or the laws of the home state for such an investment, whichever is more rigorous in relation to the investment in question.
Investors, their investment and host state authorities shall apply the precautionary principle to their environmental impact assessment and to decisions taken in relation to a proposed investment, including any necessary mitigation or alternative approaches of the precautionary principle by investors and investments shall be described in the environmental impact assessment they undertake.
INVESTMENT, LABOUR AND HUMAN RIGHTS PROTECTION
The parties recognize that it is inappropriate to encourage investment by weakening or reducing the protection accorded in domestic labour laws. Accordingly, each Party shall ensure that it does not waive or otherwise derogate from or offer to waive or otherwise derogate from its labour laws where file waiver or derogation would be inconsistent with the labour rights conferred by domestic laws and international labour instruments in which both are parties are signatories, or fail to effectively enforce its labour laws through a sustained or recurring course of action or inaction.
The Parties recognize that it is inappropriate to encourage investment by relaxing domestic labour, public health or safety. They 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
Where one Party or its designated agency has guaranteed any indemnity against non-commercial risks in respect of an investment by any of its investors in the territory of the other Party and has made payment to such investors in respect of their claims under this agreement, the other Party agrees that the first Party or its designated agency is entitled by virtue of subrogation to exercise the rights and assert the claims of those investors. The subrogated rights or claims shall not exceed the original rights or claims of such investors.
Investors and their Investments shall not, prior to the establishment of an Investment or afterwards, offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a public official of the Host State, or a member of an official’s family or business associate or other person in close proximity to an official, 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, in order to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relations to an investment.
Investments shall, in keeping with good practice requirements relating to the size and nature of the investment, maintain an environmental management system. Companies in areas of resource exploitation and high-risk industrial enterprises shall maintain a current certification to ISO 14001 or an equivalent environmental management standard.
CORPORATE GOVERNANCE AND PRACTICES
ACCESS TO INVESTOR INFORMATION
DENIAL OF BENEFITS
A Party may deny the benefits of this Agreement to an Investor of another Party that is an Investment of such Party and to Investments of such investor if investors of a non-Party own or control the Investment and the denying Party:
A Party may deny the benefits of this Agreement to an Investor of another Party that is an investment of such other Party and to Investments of that Investor if the Investment has no substantial business activities in the territory of the other Party and persons of non-Party, or of the denying Party, own or control the Investment.
RIGHT OF STATE TO REGULATE
In accordance with customary international law and other general principles of international law, the Host State has the right to take regulatory or other measures to ensure that development in its territory is consistent with the goals and principles of sustainable development, and with other legitimate social and economic policy objectives.
Except where the rights of Host State are expressly stated as an exception to the obligation of this Agreement, a Host State’s pursuit of its rights to regulate shall be understood as embodied within a balance of the rights and obligations of Investors and Investments and Host States, as set out in the Agreement
CORPORATE SOCIAL RESPONSIBILITY
In addition to the obligation to comply with all applicable laws and regulations of the Host State and the obligations in this Agreement, and in accordance with the size, capacities and nature of an investments, and taking into account the development plans and priorities of the Host State and the Sustainable Development Goals of the United Nations, investors and their investments should strive to make the maximum feasible contributions to the sustainable development of the Host State and local community through high levels of socially responsible practices.
ASSISTANCE AND FACILITATION FOR FOREIGN INVESTMENT.
The Home State should assist the Host State in the promotion and facilitation of foreign investment in particular by their own investors. Such assistance shall be consistent with the development goals and priorities of the Host State. Such assistance may include, inert alia :
The procedure for dialogue and bilateral consultation ends by the initiative of any Party upon presentation of summarized report in the subsequent Joint Committee meeting, that shall include :
- Identification of the Party;
- Identification of the Investors;
- Description of the measure under consultation; and
- Position of the Parties concerning the measure.
SETTLEMENT OF DISPUTES BETWEEN A PARTY AND INVESTOR OF THE OTHER PARTY
If disputes cannot be settled according to the provisions of article 26, the Investor concerned may submit at his preference the dispute settlement to :
each Party to the dispute shall appoint one arbitrator, and the two arbitrators thus appointed, shall select by mutual agreement a third arbitrator, who must be a citizen of a third country, and who shall act as Chairman of the Tribunal. All the arbitrators must be appointed within two months from the date of notification by one Party to the other Party of its intention to submit the dispute to arbitration.
the Arbitral Tribunal shall reach its decisions by a majority of vote. These decisions shall be final and legally binding upon the parties and shall be enforced. The decisions shall be taken in conformity within the provisions of this Agreement, the national law of the Host Party and the applicable rules of international law.
No measures of constraint before or after a final award, such as attachment, garnishment or execution, can be taken against the goods of the Party complained against, in particular:
property, including bank accounts, used or intended for use in the exercise of the functions of the diplomatic mission of the Host Party or its consular posts, its special missions, its missions to international organizations, or its delegations in international organizations organs or to international conferences;
SETTLEMENT OF DISPUTES BETWEEN THE PARTIES
The Parties shall strive with good faith and mutual cooperation to reach a fair and quick settlement of any dispute arising between them concerning interpretation or execution of this Agreement in accordance to the provisions of Article 19. In the event the dispute has not been settled, it may be submitted at the request of either Party to an Arbitral Tribunal composed of three members.
Within the periods specified in paragraph (2) of this Article the necessary appointments have not been made, either Party may, in the absence of any other agreement, invites the President of the International Court of Justice to make any necessary appointments. If the President is a national of either Party or otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Party or if the too is prevented from discharging the said function, the member of the International Court of Justice next in seniority who is not a national of either Party shall be invited to make the necessary appointments.
The Arbitral Tribunal shall reach its decisions by a majority of votes. Such decisions shall be final and binding on both Patties. Each Party shall bear the cost of its own member of the Tribunal and of its representation in the arbitral proceedings; the cost of the Chairman and the remaining costs shall be borne in equal parts by the Parties. The Tribunal may, however, decide that a higher proportion of costs shall be borne by one of the two Parties and this award shall be binding on both Parties. The tribunal shall determine its own procedures.
All claims shall be submitted and all hearing session shall be completed within a period of six months from the date the third member is appointed, unless otherwise agreed. The Tribunal shall issue its decision within two months from the date of submitting the final claims or the date of closing the general sessions, whichever is later.
Where two or more claims have been submitted separately to arbitration under Articles 27 and 28 respectively and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order in accordance with this Agreement of all the disputing Parties sought to be covered by the order.
This Agreement may be amended at any time at the request of either Party giving the other Party six (6) months’ notice in writing and such amendment shall enter into force upon notification through Diplomatic Channel by Parties that their respective constitutional requirements for its entry into force have been fulfilled.
PERIODIC REVIEW THIS AGREEMENT
At any time, either of the parties’ may terminate this Agreement by providing written notice of termination to the other party. The termination shall take effect on a date the parties agree on, or, if the parties are unable to reach an agreement, 6 months after the date on which the termination notice is delivered.
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