ANALYSIS OF THE BILATERAL INVESTMENT TREATY BETWEEN ETHIOPIA AND BELGIUM-LUXEMBERG ECONOMIC UNION IN LIGHT OF INTERNATIONAL INVESTMENT LAW PRINCIPLES
INTRODUCTION
In developing countries the encouragement and
expansion of investment in their territory has become a concern now a days.
Consequently, it is uncommon to see these countries signing bilateral
investment treaties (here in after BITs) mainly with developed countries. These
BITs are areas of discussion in many investment literatures. Many of these
literatures are general; they do not target a specific treaty. The purpose of
this work is to specifically deal with the BIT between Ethiopia
Belgium-Luxemburg Economic Union. It has been tried to discuss the literature
on BITs briefly and it has been tried to contextualize it to the Ethiopia and
Belgium-Luxemburg BIT.
The paper has six topics. The first deals with
definition of key terms in the application a BIT: the terms ‘investment’ and
‘investor’. The second is about different standards of treatment. Under it the
three types of treatment namely: fair and equitable standard of treatment,
national standard of treatment, and the most favored nation treatment are
discussed at length. The scope of these treatments is addressed in light of the
Ethio-Belgium and Luxemburg BIT. Thirdly, the issue of taking of investment
property is discussed. Under it, the different forms of property taking are
highlighted. It has been also tried to discuss the justification and conditions
of investment property taking in general and expropriation in particular. The literatures on the two standards of
compensation are summarized. Fourthly, the policy spaces left for the
contracting parties to the BIT are identified including the justification for
these policy spaces. The fifth is about, investment dispute settlement. Under
this, the different issues constituting investment are identified. The different mechanisms available for
investment dispute are discussed at length.
Finally, the issue of termination of BITs is
discussed briefly.
1. DEFINITION
OF CONCEPTS
A law document should determine as to what persons
and actions it is to regulate. So, BITs are expected to
answer this question. This is by providing definition for the terms
‘investment’ and ‘investor’. In other
words, the definition of ‘investor’ and ‘investment’ is decisive to the scope
of application of rights and obligations provided under investment agreements
and to the establishment of the jurisdiction of investment treaty-based arbitral
tribunals[1].
1.1.Investment
The
term “investment” is defined as the expenditure of asset in expectation of
return.[2]Three
important elements can be drawn from this definition: expenditure, asset and
return. However, BITs emphasize on the second element (asset). Accordingly,
BITs define investment to refer the assets that constitute the investment.[3]This
is called asset based approach to the defining the term “investment”.[4] An
example for this approach is found in the BIT between Ethiopia and
Belgian-Luxemburg Economic Union (Ethio-Bel.LuxBIT for precision): “the term ‘investment’ shall mean any
kind of assets or any direct or indirect contribution in cash, in
kind or in services, invested or reinvested in any sector of economic activity”(emphasis
mine). Under this provision definition of investment is even broader than asset
based definition and includes any kind of direct or indirect contribution. So,
Portfolio investment is also recognized under this definition. The
Ethio-Bel.lex BIT under Art.2 also illustratively lists some assets
constituting investment. The non exhaustive list of assets and the inclusion of
any kind of contribution under the BIT seem to be designed to protect as wide a
range of investment forms as possible.
1.2.Investor
Investors
are either natural or legal persons carrying out investment. In majority of the
cases, investors are legal persons.[5]
The Ethio-Bel.Lux BIT under Art.1/1/a defined investors as:“the ‘nationals’ (for natural
persons)according to the legislation of the Kingdom of Belgium, of the
Grand-Duchy of Luxembourg or of the Federal Democratic Republic of Ethiopia, is
considered as a citizen of the Kingdom of Belgium, of the Grand-Duchy of Luxembourg
or of the Federal Democratic Republic of Ethiopia respectively” (emphasis
mine). The provision takes nationality as central element to the definition of
the term individual investor. This has much to do with the scope of the BIT. In
other words, the substantive standards of protection provided under the BIT are
applicable to the investors who are the nationals of the contracting states as
per Art.13 of the BIT.
About,
corporate investors, the BIT emphasizes on whether the company in question has
registered office in one of the territory of the contracting state after being
constituted in accordance with the law that contracting state (Art.1/1/b).If
accompany fulfils the registered office and the constituency requirements in
one of the contracting state it will be subject to the BIT in case it invests
in the territory of the other contracting state as per Art.13 of the BIT.
2.
STANDARD OF TREATMENT
States
are required under customary international law to extend “minimum standard of
treatment” to investment by aliens in their territory.[6]However,
the fierce competition to attract foreign investment to ones territory has led
to the inclusion of other three standards of treatment in BITs:Fair and
Equitable treatment (FET), National Standard of Treatment and Most Favored Nation
treatment (MFN). The Ethio-Bel.Lux BIT involves these three standards of
treatment.[7]
2.1. Fair and equitable
standard of treatment
The
term “fair and equitable” is general, vague and elastic. Arbitrative tribunals
have come up with key elements of fair and equitable treatment. Among the
principles most relayed up on by such tribunals when applying the standard is
whether the host state has: (1) failed to protect the investor’s legitimate
expectations; (2) failed to act transparently; (3) acted arbitrarily; (4)
subject the investor to discriminatory treatment; (5) denied the investor’s
access to justice; and (6) acted in bad faith.[8]Again,
it is difficult to define these principles precisely. It is useful to identify
instances that form part of eachprinciple.
a. Legitimate expectations:
refers to the expectations arising from the foreign investor’s reliance on
specific host state conduct, usually oral or written representations or
commitments made by the host state in relation to the investment.[9]
b. Arbitrariness (Discrimination): arbitrary
or discriminatory government conduct against an investor violates the fair and
equitable treatment. It is difficult to determine as to what conduct of a host
state government constitute arbitrary or discriminatory measure. Discrimination
contrary to international human right law, such as sex or race based
discrimination; arbitrary regulatory distinction between things that are like
or treating unlike things in the same way are common instances constituting
arbitrariness or discrimination.[10]
c. Transparency:
this is the obligation of a host state to make its legal frame work apparent.[11]Instances
of this obligation are: publication of applicable laws; notification
requirements with respect to such laws; providing reasonable opportunity to
comment on new laws; and fair application of such laws.[12]
d. Coercion, Threat, and
Harassment: arresting or jailing executives or
personnel; threats or initiation of criminal proceeding; deliberate imposition
of unfortunate tax assessment; criminal or other fines; seizing of physical
assets, bank accounts and equity; interfering with, obstructing or preventing
daily business operations; and deportation from home state or refusal to extend
documents that allow foreigners to live and work in the host state are against
the standard of fair and equitable treatment.[13]
The
host state conduct in response to improper conduct of the investor mayn’t be a
violation of fair and equitable treatment.[14]The
host state’s act of revoking license obtained through bribery can be a nice
example.
The
Ethio-Bel.LuxBIT has incorporated the fair and equitable treatment under Art.3
(1) as follow: “all investments made by
investors of one contracting party shall enjoy affair and equitable treatment
in the territory of the other contracting party”
In
the above provision, there is no qualification indicating as to which stage of
the investment (since pre or pos establishment stage) does the fair and
equitable standard of treatment would start to be applied.In the absence of
qualification the BIT has to be interpreted so as to be applied since pre
establishment stage of investment.
2.2. National Treatment
Standard
National
treatment standard refers to the extension of treatment to foreign investor by
a host state not less favorably than it accords to national investors.[15]The
Ethio-Bel.LuxBIT under Art.4 (2) requires contracting parties treating
investors of others no less favorably
than that they treat their own investors. According to this provision the
foreign investor is granted a possibility of better treatment than national
investors. In other words, the foreign investor will be treated at least in the
same way as national investors in case the BIT is less favorable than the
domestic investment law.
Whether
the foreign investor claiming national treatment standard shall be in similar
position with that of the domestic investor up o whom such foreign investor
based his claim is an issue. Some BITs signed by Ethiopia use qualifying words
such as “like circumstance” and “similar situation.”[16]
However, the Ethio-Bel.LuxBIT doesn’t use these kinds of restrictive words. So,
comparing the foreign and domestic investor in case of applying national
treatment standard under this BIT isn’t an issue.
The
other central issue is whether the national treatment standard embodied in the
Ethio-Bel.LuxBIT starts to apply at the pre establishment stage of the
investment. According to Art.4 (1) of the BIT national treatment is applicable in
all matters relating to investment. This underlined phrase shall be
interpreted to mean that pre establishment requirements to be matters of
investment. So, the standard applicableis unrestrictedly.
2.3. Most Favored
Nations Treatment (MFN)
This
is a standard that requires a host state not to treat investors and investments
of its treaty partner less favorably than investors and investment from third
state.[17]MFN
treatment aims at creating a level playing field among investors from different
home states as pre requisite for equal competition. [18]
The treatment is relative for its application requires comparison between the
original BIT and the BIT with third state[19].
The BIT between Ethiopia and Bel-Lux incorporated the MFN treatment under
Art.4.
Whether
the MFN treatment under the BIT is applicable since admission and to investment
dispute settlement matters is worthy of discussion. The BIT under Art.4 (3) and
4(4) excludes the applicability of MFN treatment on privileges granted to
investors of third states due to regional economic organizations and on tax
matters. About the investment dispute settlement and admission the provision is
silent. It neither excluded nor included the applicability of MFN treatment to
these matters. Art.4 (1) of the BIT provides that:“in all matters relating to the treatment of investment,the
investors of each contracting party shall enjoy ……or MFN treatment in the
territory of the other contracting party.” In my view, the underlined
phrase broad and it shall be interpreted so as to include the matters of
investment dispute settlement and admission. Therefore, MFN treatment under the
Ethio-Bel-Lux BIT is applicable since admission of a foreign investor and also
on mattersof investment dispute settlement.
Whether
comparison among foreign investments or foreign investors becomes an issue in
case a there is a claim based on MFN clause under the Ethio-Bel.LuxBIT arises
is a matter that needs to be discussed. The bit under Art.7(2) provides that: “…each contracting party shall accord, on
its territory, to investor of other contracting party, treatment no less
favorable than that granted to …investors of any other state if the latter is
more favorable.”The above provision is silent on the issue of similarity or
difference between foreign investment or investors. It emphasizes on the extent
of treatment accorded to the investors of a contracting party in relation to
the treatment that is accorded to an investor from a third state. This
deferential treatment among foreign treatment may have two sources: (1) the
host states legislation, regulation, administrative act, and (2) the treaty
between the host state and other host state.[20]
This idea can be illustrated as follow:
Let
us assume that a Belgian investor who made investment in Ethiopia alleges that
the Ethiopian investmentlegislationand the BIT between Ethiopia and Sudan have
guaranteed better protection to Sudanese investors than the Ethio-Bel.LuxBIT.
Let us further assume that he claimed to be treated equally with the Sudanese
investor. In this case the differential treatment proved by the two sources on
the one hand and the Ethio-Bel.LuxBIT one the other hand will be an issue, not
the similarity between the Sudanese and the Belgian investor.Accordingly,
Comparison of the two sources that are alleged to have treated Sudanese
investors more favorably with that of the Ethio-Bel.LuxBIT becomes important.
3.
PROPERTY
TAKING
An
age old, overriding concern of all foreign investors is that host state
government will seize their assets.[21]
To overcome this fear (uncertainty) and to promote foreign investment BITs come
up with provisions dealing with protection of investment property from taking.[22]Investment
property refers to a determinate thing (tangible or intangible)[23]
used to carry out investment. Property taking may be defined as the act of
seizing (controlling) or dispossessing a determinate thing of someone with or
without intention to return.[24]
These definitions can be contextualized to BITs. Accordingly, property taking
means any measure of a host state such as expropriation, nationalization,[25]confiscation,
forced sale[26]
etc. that has the effect of dispossessing[27]the
foreign investor’s investment property. From this definition, one can extract
the issue of what possible act of a host state constitutes property taking. The
issue will be discussed under the section below.
3.1.Forms of Property Taking
The
Ethio-Bel.Lux BIT under Art.7(1) provides that : “each contracting party undertakes not adopt any measure of
expropriation or nationalization or any other measure having the effect of
directly or indirectly dispossessing the investor of the other contracting
party.” The provision illustratively listed expropriation and
nationalization, without defining them, as acts of contracting states
constituting expropriation.
·
Expropriation VsNationalization
“Expropriation” refers to taking a particular
investment property where as “Nationalization” is the whole taking of the
industry.[28]
Expropriation is more of legal; nationalization is more of political.[29]
In terms of purpose, the property of foreign investor is nationalized to
diminish the domination of foreign investment over the economy of the host
state[30]
where as expropriation is justified by public purpose.
·
Confiscation VsForced Sale
Confiscation
is the capricious taking of property by a host state for personal gain of the
ruling elites (unusual) or for public purpose. Forced sale is a situation where
by a state causes a foreign investor to sale its investment property and leaves
that state.[31]
However,
the above distinction on the different forms of taking is not an issue in
Ethio-Bel.Lux BIT.The above provision (Art.7 (1)) aims at protection against
any kind of investment property of an alien. It emphasizes on, taking and
recognized any forms of taking. Consequently, whether or not taking
(dispossessing the investor) has occurred should be an issue, not the specific
form of taking.
However,
expropriation is the usual form of taking now a day.Therefore, our discussion
in the subsequent section will revolve around it.
3.2.Justification
for Expropriation
According
to the notion of territorial sovereignty, a host state has the right to
expropriate alien’s property.[32]The
Ethio-Bel.Lux BIT also respects this position with requirements. Reasons of
public purpose, security or national interest are grounds for property taking
in general and expropriation in particular according to theBIT.[33]It
doesn’t elaborate these grounds. Northey aredefined in many jurisdictions. One
clear thing is that expropriation should be justified by genuine [34](demonstrable[35])
internal economic, political, or military need of a host state.[36]
In other words, expropriating a foreign investor shouldn’t be for the personal
interest of rulers or third state, [37]but
it must be attributable to the honest interest of the public.
In
practice, however, the issue of justification has rarely arisen in
international expropriation cases.[38]
3.3.Conditions
of Expropriation
The
justifiability of expropriation discussed above is subject to conditions.
According to the Ethio-Bel.Lux BIT, expropriation shall be taken under due
process of law; it shall be neither discriminatory nor contrary to any specific
commitmentsand it shall be accompanied by compensation.[39]Due
process of law is all about giving advance notification to the affected
investor, fair hearing by impartial adjudicator to assess the action in
dispute.[40]Requirement
of non discrimination and specific commitment are discussed above under the sub
section 2.1 on fair and equitabletreatment. Among the conditions, the
requirement of compensation is controversial. It is discussed below.
3.4.Compensation
Determining
compensation for injury requires standards. There are two competing standards
of compensation for expropriation: the Hull standard and appropriate
compensation formula.[41]The
Hull standard requires an expropriating state to pay the affected investor
‘prompt’, ‘effective’ and ‘adequate’ compensation.[42]
‘Prompt’ means payment should be made without undue delay.[43]
‘Effective’ means payment should be made in realizable and readily transferable
currency.[44]
‘Adequate’ means payment should be based on the fair market value of the
investment expropriated.[45]
Market value is all about taking in to account the transaction between a
willing buyer and seller.[46]
In other words, payment shall be made looking at the amount with which a
willing buyer will normally purchase from a willing seller.
The
appropriate standard on the hand, appropriate standard suggests that payment of
compensation must consider the circumstances of the expropriating country
and mayn’t necessarily be made
immediately.
The
Ethio-Bel.Lux BIT prefers the ‘Hull standard’. The BIT requires payment of
adequate and effective compensation (Art.7 /2). The amount of the compensation
to be paid shall amount to the market value of the investment on the day before
the measure was taken or became public (Art.7/3). The same provision requires
compensation to be paid in any convertible currency; to be freely transferable
and to be paid without undue delay. Delay would results in payment of interest
as per Art. 7/3.
4.
LIMITS
TO REGULATORY POWER
Waiver
of a host state’s right to regulate foreign investment in its territory is
unlikely. This right is justified by sovergnity.[47]
BITs nowadays provide for the right of entry and establishment of investment to
the nationals of contracting states.[48]
So, BITs are expected to leave policy space for contracting states throughout
the majority of their provisions.
4.1.Regulation
of entry
Customary
international law recognizes that the entry of foreign investment was entirely
a matter for sovereign prerogative of a state.[49]The
Ethio-Bel.Lux BIT also respects this position. As per Art.2 of the BIT, each
contracting party shall accept investment by investors of other country in
accordance with its legislation. Accordingly, the Ethiopian investment
proclamation No.769/2012 has provided requirements for admission:sectoral
requirement (Art.6-9), minimum capital requirement (Art.11), permission
requirement (Art.12)
The
Ethio-Bel.Lux BIT also constrains right to regulate entryto some extent. A nice
illustration may be MFN treatment is applicable up on admission as discussed in
section 2.3.
4.2.Labor
Matters
TheEthio-Bel.LuxBIT
underArt.1 (6) recognizedthe domestic labour legislation of the contracting
states with respect to internationally recognized labour rights such as right
to association, collective bargaining, and minimum wageetc. The BIT takes in to
account the interests of Ethiopian employees. Unfortunately, minimum wage is
not set under the Ethiopian labour law.So, the Ethiopian legislature shall
amend labour proclamation no 377/2003 to come up with minimum wage.
4.3.Environmental
matters
Recently,
environmental matter becomes a global issue. The Ethio-Bel.Lux BIT is drafted
accordingly. It recognizes the concern of the international environmental. It
imposed on contracting states, duty of ensuring high level of environmental
protection through their legislation (Art.5/1). The BIT under Art.5/1 also
recognizes the right of each contracting party to establish its own levels of
domestic environmental protection and environmental development policies and
priorities and to adopt and modify accordingly its environmental legislation.
4.4.Tax
matters
Generally
tax matters fall under outside the scope of investment treaties and instead in
separate bilateral tax treaties.[50]Nothing
in international law prevents the guarantying of tax holidays to and incentives
to foreign investors but this within the discretion of state authorities.[51]
The granting of incentives to desirable investor on economic factors is not
discrimination.[52]The
Ethio-Bel.Lux BIT also adopts this position. Under Art 4/4, it excepts the
application of MFN and NT to tax matters.
5.
INVESTMENT
DISPUTE SETTLMNT
Investment
dispute can arise between contracting parties (state-state dispute) or between
a foreign investor and a host state (investor-state dispute).
5.1.Issues of investment dispute
This
relates to identifying matters that may give rise to investment dispute. As per
Art.12 of the Ethio-Bel.Lux BIT, disputes relating to the interpretation and application
of the BIT are matters of state-state dispute.
The
BIT doesn’t specifically identify issues of investor-state dispute.
Investor-state dispute may arise from seizure of foreign investor’s factory,
the promulgation of new law affecting the interest of investor, simple refusal
a host state to grant visa etc.[53]Generally,
investor-state dispute may arise from a contested violation of the standard of
treatment provided under the BIT.
5.2.Mechanisms
of Investment Dispute Settlement
a.
State-state
dispute settlement mechanisms: the Ethio-Bel.Lux BIT
under Art.12 provides 3 mechanisms of settling state-state dispute: settlement
through diplomatic channel, settlement by joint commission and
settlement by arbitration. The BIT prefers diplomatic channel as the first
way of settling dispute between contracting states (Art.12/1). Settlement by
joint commission is the second preferred way if the first mechanism is
unsuccessful (Art.12/2). In the absence of settlement after these two
mechanisms used, the dispute shall be submitted to arbitration, at the request
of either of the parties (Art.12/3).
Arbitration:
is the last resort as per the Ethio-Bel.Lux BIT. The contracting parties to a
dispute must try to settle the dispute through diplomatic channel firstly
failing which, by joint commission (Art.12/1 and 2).The term ‘shall’ under
these two Articles shows that the contracting states in dispute can’t simply
jump to arbitration. The other relevant point is settlement by arbitration
doesn’t need the mutual agreement of the disputing states. The matter shall be
submitted to arbitration court at the request of either of the disputing states
(Art.12/3).
The
arbitration court is constituted by two arbitrators appointed by each disputing
states and one chairman appointed by these two arbitrators (Art12/3). The
arbitration court shall determine its own rules of procedure (Art.12/4). The
BIT doesn’t provide as to which substantive rule is applicable. Since the scope
of state-state dispute is on the interpretation and application of the BIT,
basically the BIT will be applicable. Other BITs specify rules/principles of international
law to be applied in addition to the rules of the BIT.[54]
The
decision of the arbitration court is taken by Majority vote and such decisions
are final and binding on contracting parties (Art 12/4 of the BIT).
b.
Investor-State
Dispute settlement mechanisms: Art 11 of the
Ethio-Bel.Lux BIT provides three mechanisms for settling investor-state
dispute: negotiation (amicable settlement), settlement, settlement by local
court or by international arbitration. The BIT prefers amicable settlement as
the first way of investor-state dispute settlement (Art11/1). In the absence of
amicable settlement, the foreign investor is given the right to submit the
dispute to either to local court of the host state or to international
arbitration at his choice. (Art.11/2). Exhaustion of domestic administrative or
judiciary remedy is not requirement as per Art.11/2 of the BIT. This may be due
to the fear that the judiciary of the host state may not be impartial,
independent, competent or flexible.[55]
Moreover,
the BIT gives the investor an option to submit the dispute for settlement to
U.N.C.I.T.R.A.L, or I.C.S.I.D, or the arbitral court of the international
chamber of commerce in Paris, or the arbitration institute of the chamber of
commerce in Stockholm (Art.11/3). The arbitral award of these organizations is
final and binding (Art.11/5).
6.
TERMINATION
AND EXTENSION OF BITs
Investment
agreements are generally long-term transactions[56].
There is noreported case of a country actually terminating an investment treaty
to which it has agreed.[57]
This is important to give assurance of predictability and stable legal
framework. Investment treaties usually establish an initial period for which
the treaty will be in force without providing for a right to terminate the
treaty during that period and specify how long the treaty will continue
following the expiration of the initial period or termination. The
Ethio-Bel.Lux BIT shall remain in force for a period of 10 years
(Art.14/1). As a rule,the parties may
terminate a treaty only after the end of the initial period or after submitting
advance written notice. The
Ethio-Bel.Lux BIT recognizes tacit extension of the BIT each time for further
period of ten years, unless either contracting party does not serve notice of
termination at least six months before the expiry of the BIT’s period of
validity (Art.14/1).
The
fate of investments made, acquired or approved prior to the date of termination
is an issue. Most treaty-termination provisions have continuing effect clause,
which extend the applicability of the BIT as regards these investment at stake.[58]
The Ethio-Bel.Lux BIT under Art.14/2 extends the applicability of the BIT on
investments made prior to termination after termination.
CONCLUSION AND RECOMMENDATION
The
scope of the Ethio-Bel.Lux BIT is designed to include almost all forms of
investment. It is applicable on all kinds of assets and direct or indirect
contributions in cash, in kind or in service, invested or reinvested by
investors of contracting party in another contracting party. The BIT has almost
unrestrictive MFN and NT clause. Ethiopia is currently in need of investors
mainly in areas of manufacturing to strength the domestic production capacity.
The MFN and NT clauses of the BIT should have except portfolio and other
indirect contribution. This would have given Ethiopia the opportunity of
specially treating investors investing in the countries area of
concern.Therefore, the country shall notify its treaty partners to modify the
treatment clause of the BIT.
Property
taking means any measure of a host state such as expropriation,
nationalization, confiscation, forced sale etc. that has the effect of
dispossessing the foreign investor’s investment property. The distinction on
the different forms of taking is not an issue in Ethio-Bel.Lux BIT. The BIT
aims at protection against any kind of investment property of an alien. It
emphasizes on, the issue whether the investor is disposed by recognizing any
forms of property taking. The BIT also gives the foreign investora right to
submit disputes with the host state for settlement to international
arbitration, without the requirement of exhausting domestic remedy. The
arbitral award is binding. Theseare important to increase the confidence of the
foreign investors andreduce their fear towards investing in Ethiopia.
The
BIT also respects the position of international environmental and labor laws.
It reaffirms the important international principles of environmental and labor
law. It also recognizes a host states right to regulate admission of
investment.
BIBLOGRAPHY
A.
BOOKS
1.
Andrew Newcombe and LiuisParadell,law and practice of investment treaties;
standard of treatment, (Kluwer law international,2009)
2.
G.schawrzenbereg,foreign investment and international law,1969
3.
Gray,International
trade ,Investment and payment, 1979
4.
JeswalldW.Salacuse,the law of investment treaties, (Oxfored university press,2010)
5.
M.Sornarajah,the international law on foreign investment,(3rded,
Cambridge University Press, 2004).
6.
Martha Belete, teaching materials on economic and legal aspects of foreign direct
investment localization for Ethiopia,investment policy of Ethiopia, (UNCATED
Virtual Institute,2013)
7.
Ralpha.H. Folson,international trade and investment,2000.
8.
Rudolf Dolzer and ChristophScheruer, principles of international investment law,
(2nded, Oxford university press, 2012)
9.
Stephen
W. Shill, the multi-lateralization of
international investment law, (Cambridge university press, 2009)
B.
LAWS
1.
The Bilateral investment treaty between
Ethiopia and Belgium-Luxemburg economic union, 2006
2.
Investment incentives and investment
areas reserved for domestic investors council of minister regulation Federal
negaritGazeta no 270/2012.
3.
proclamation no 769/2012 to provide for investment regulation, Federal
negaritGazeta , 2012
[1]Catherine
Yannaca-Small, “definition of investor and investor in international investment
agreements” 2008, http://www.oecd.org/def/inv/, accessed on December 26, 2014
[2]FantuFaris,
lecture note on investment law, 2014
[3]
Martha Belete, Teaching Material on
Economic and Legal Aspects of Foreign
Investment Localization for Ethiopia, (2013), P.2
[4] ibid
[5]
Rudolf Dolzer and ChristophSchereuer, principles of international investment law(
2nded, Oxford University Press, .2012), p.44
[6]
Andrew Newcomb and LLUIS Pardell, Law and practice of investment treaties(Kluerlaw
international, 2008), p.235
[7]
BIT between Ethiopia and Belgian-Luxemburg Economic Union, Arts.4 and 5
[8]JeswaldW.Salacuse,
the law of investment treaties (oxford
university press, 2010), p.230
[9]
Supra note 6, p.279
[10]
id, p.289
[11]
Supra note 3, p.22
[12]
Supra note 6, p.291
[13]
Supra note 3, p.23
[14]
Supra note 8, p.244
[15]
Supra note 8, p.245
[16]
Supra note 3, p.15
[17]
Supra note 8, p.251
[18] Stephen W. Shill, the multi-lateralization of international investment law, (Cambridge
university press, 2009), p.76
[19]ibid
[20]
Supra note 8, p.252
[21]
id, p.285
[22]ibid
[23]Henry Campbell Black, Black’s law dictionary, (9th ed.2009)
,see the term “property”
[24]
Id, see the term property and the term taking.
[25] Supra note 7, Art.7(1)
[26] M. Sornarajah, The International Law on Foreign Investment, (2nd ed.
Cambridge university press, 2004), p.348
[27] Supra note 25
[28]
Supra note 8, P.285
[29]Phone
Interview with Solomon Hailu on 20 December 2014, land administration officer
in north wollo
[30]
Supra note 26
[31]id,p.356
[32]
Supra note 5, p.98
[33]
Supra note 7, Art.7(2)
[34]
Supra note 6, P.370
[35]
Id, p.372
[36]
Supra note 34
[37]
Supra note35
[38]
Supra note6, p.371
[39]
Supra note 6, Art.7(2) (a) and (b)
[40]
Supra note 7,p.322
[41]Supra
note 3, p.25
[42]
Supra note 8, p.322
[43]
ibid
[44]
ibid
[45]
ibid
[46]
Supra note 5,p.298
[47]
Supra note 26, p.97
[48]
ibid
[49]
Id, p.311
[50]
Supra note 8,p. 349
[51]
Supra note 26,p.115
[52]
Id, p.116
[53]
Supra note8, p.354
[54]
Supra note 3, p.28
[55]
Supra note 3, p.29
[56]
Supra note 7,p.251
[57]
Id, p. 252
[58]ibids
Views on land ownership in Ethiopia
Right of Access to Justice in Ethiopia
This essay contains three sections. Firstly, the concept of access to justice is explained for
convenience of discussion in the subsequent sections. The second section is about the role of
government and non government organizations for effective realization of the right to access to
justice. Finally, the Ethiopian law on the right to access to justice is discussed.
click below for pdf
Consequences of Violating Essential Conditions of Marriage in Ethiopia
The law requires a marriage to fulfill essential conditions. These are: requirement of consent (Art.6 of RFC), requirement of majority (Art.7 of RFC) etc. violation of some of the condition could be curable after lapse of time. For example, marriage concluded by a man or a woman under the age of eighteen years shall dissolve on the application of any interested person or the public prosecutor (Art.31/1). But, it may no longer be applied for after the age required by law for marriage is satisfied (Art.31/2). Marriage concluded in violation of this kind of essential conditions is voidable. In other words, there is a possibility of dissolution if application is made within the time required by the law. If that time lapses, the marriage becomes valid.
However, application for violation of some of the essential conditions doesn’t require time limit. One example can be marriage concluded in violation of consanguinity relationship. The law requires the dissolution of this marriage to be ordered on the application of any interested Person or the public prosecutor (Art.32). It doesn’t put time limit for the application. In case of violation of these kinds of essential conditions, the marriage is void ab initio meaning the marriage is invalid from the very beginning.
In case of voidable marriage, there is no problem once the marriage becomes valid after it becomes cured. The issue here is what if a voidable marriage becomes dissolved up on application made before it becomes valid? In case of void ab initio marriage, what other jurisdictions do is they consider the marriage as if not concluded and nullify it. That means the marriage wouldn’t have pecuniary effect and no liquidation of property after dissolution.
How Does Poor Economic Development Contribute ToHealth-Related Concerns; How Can Law Help?
This essay discusses the connection between poor economic development and health problems in general and the relation between poor Economic development and determinants of health (that are identified by international conventions) in particular. It also explains the role the law plays in overcoming these problems. Accordingly, the essay is divided into two sections. The first section examines the contribution of poor economic development to health related concerns. Section two is about the role of law in remedying these problems.
1. The Contribution of Poor Economic Development to Health Related Concerns
It is conventional to start by defining concepts. Accordingly, Poor Economic development is a broad concept that includes the overall inefficiency in economic social, political and cultural environment of a given state. For the sake of convenience of discussion, in this essay I defined the term as low level of income and consumption; non improvement in health, education, nutrition and living standards etc. Throughout this essay I used the term to represent the general socio-economic condition in developing countries. The term 'poverty' is also interchangeably used.
It is a widely held notion that ill-health and poverty are directly related.[1] The poor suffer worse health and die younger and have higher than average child and maternal mortality, higher levels of disease, and more limited access to health care and social protection.[2]Many national population health surveys of countries show that poor economic development affects health status of the people. For example, the National Canadian Population Health Survey indicates that in 1996-1997, 73% of Canadians in the highest income group rated their health as excellent, while only 47% of Canadians in the lowest income group reported excellent health.[3] At macro level, in 2012 the general government expenditure on health as % of total government expenditure of South East Asia and eastern Mediterranean countries are 5.8 and 8.0 respectively where as Europe and the American region are 14.7 and 17.3 respectively.[4] These shows developing countries pay less attention to health concerns and invest less on the health than the developed ones. This has adverse effect on the realization of right to health in developing nations.
The Committee on Economic social and Cultural Rights interprets the right to health as an inclusive right including timely and appropriate health care and the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions.[5]
Now, let us specifically discuss the link between these determinants of health and poor economic development.
1.1. Health care service
The Committee on Economic social and Cultural rights (here in after CESCR) broadly interprets the right to health (Health care system) so as to include elements of accessibility, affordability quality and quantity.[6] These all are essentially economic concepts. In other words, achieving the accessibility, affordability quality and quantity of health care depends on the economic development of a state and the individual's economic situation. A state with adequate fund will be able to have trained manpower, purchase necessary equipments (computers, vehicles), fulfill adequate infrastructure (water, electricity, communication) to meet the desired health care. According to WHO 2015World health statics, in Africa physician population bond in 2014 is 2.7 to 10,000 which is about 10 times below the European.[7]
Low-income countries will be unable to meet the health-related millennium development goal by their own due to lack of money to buy vaccines and drugs, to build and equip facilities, to ensure adequate staffing, to manage the health system, and to increase investments in other sectors important for health.[8] There are also cultural problems in developing countries that hinder health care service. There is negative attitude towards modern medicinal care. The proportions of women receiving antenatal care in 2015 in several regions are only 51% in the WHO African Region and in low-income countries'[9]. Many developing countries health care systems are weak and fragmented.[10] This has the effect of denying access to the public health services and care. Therefore, poor economic development affects health care delivery.
1.2. Sanitation problems
The problem of sanitation is deep rooted with the political, social and economic problems. Poor countries are not in a position to prepare sewage system, and other sanitary materials. It is also difficult for them to import necessary trucks and other equipments due to financial constraints.
So, capacity for the progress of sanitation has direct relation with economic development of a nation. 58 per cent of population in the least developed countries has not gained access to improved drinking water sources since 1990.[11]
Even at individual level, the poor are more exposed to sanitation problems than the rich. Poor people often live in low-quality urban settlements, or in remote villages on marginal lands.[12] As a result, they will have limited access to safe water and sanitation, and are exposed to indoor as well as outdoor air pollution.[13] The above information clearly shows how poor economic development causes problem of sanitation and limits access to clean water in developing nations.
1.3. Food Insecurity and Malnutrition
Poor economic development and starvation are linked to developing countries. From Africa and Asia to Latin America and the Near East, there are 795 million people in the world who do not get enough food to lead a normal, active life.[14]Many developing countries lack key agricultural infrastructure, such as enough roads, warehouses and irrigation.[15] People in these countries cannot afford modern tools, fertilizers, water to effectively undertake modern investment in agriculture. These lead to limited access to food.
1.4. Housing problems
Adequate house is understood in manner it is basic to health. Adequate house shall include the 'availability of services, materials, facilities and infrastructure'.[16] A house is not adequate if its occupants do not have safe drinking water, adequate sanitation, and energy for cooking, heating, lighting, food storage.[17] These all are not possible if there is poor economic development. A house should be located far from 'polluted or dangerous areas'[18]. However, Poor people often live in low-quality urban and polluted settlements as mentioned in subsection 1.2. This shows poverty is the main source of inadequate housing.
2. The Role of the Law on health related issues
In this section, the term 'law' is used to refer International instruments and different national legislations. The adoption of legal instruments on health matters has much significance. These laws serve as means of educating the public, initiate and guide governments on health matters. Laws on health matters also sanction harmful actions against health and regulate the behaviour of the society. Many International instruments are important to integrate the international community and to build cooperation between developed and developing nations to achieve right to health. These will be discussed briefly in the following subsections
2.1. Educational Role
International human right instruments define right to health broadly. They emphasize the fundamental importance and relation of health with other socio economic factors. According to Art.25 of UDHR, the right to health includes adequate standard of living (adequate food, clothing, housing and medical care, necessary social services, and social security).[19] Art. 12/1 of ESCR also provides the right to enjoyment of the highest attainable standard of physical and mental health.[20] The right is further defined under sub Art.2 and includes reduction of still birth rate, and of infant mortality rate; healthy development of the child; the improvement of all aspects of environmental and industrial hygiene; the prevention, treatment, and control of epidemic, endemic, occupational and other diseases etc.[21] Detail analysis and explanation on health matters are given by the committee on ESCR. These and other laws about health matters have educational role. Health literatures may appeal to these instruments and indoctrinate the society there by initiate change.
2.2. Regulating and Sanctioning role of national legislations
Laws and policies of a government can influence some of the variables affecting poverty and Health.[22] A health policy that provides for the private entities participation enhances accessibility of health care service. Laws and policies of state that is liberal towards the involvement of NGOs in health care provision are important to minimize the impact of poor economic development on health. Now let us discuss how diverse categories of national laws are important to address health related concerns.
· Environmental law: This can be used to control environmental pollution by imposing duty of environmental impact assessment on an entity which is to undertake any projects that will affect the environment. Through Environmental legislations, it is possible to provide waste management mechanisms.
· Labour law: The labor law of a state can improve the income and health of workers by regulating minimum labor conditions such as minimum wage, maximum working hours, annual, maternity and sick leaves, weekly rest days, safe working environment etc.
· Criminal and tort law: Criminal law can be used to punish and deter acts of persons who, pollute the environment, infringe preventive and protective public health measures, sale injurious food stuffs traffic in or use poisonous substances. Criminal law is also important to sanction misconduct of medical professionals. Tort law is also a key to remedy the above listed issues by way of compensation.
· Tax law: A government may enact legislation that provides for tax free importation of drugs, health equipments, sanitary materials etc. so as to improve the health of its citizens.
· Subsidiary legislations issued by health departments: Different subsidiary legislations enacted by health department of a state are important to regulate standard health care provision by private entities, provide for health professionals code of conduct.
2.3. Integrating and Cooperating role of International and Regional Treaties
Different international instruments recognize the importance of cooperation among state (particularly cooperation between the developed and the developing nations) to realize the achievement of human right. ESCR urges state parties to cooperate and give international assistance specially economic and technical to the maximum of its available resource to achieve human rights.[23] The Universal declaration of human right emphasizes universal efforts to secure promotion, observance and recognition of human rights and recognizes progressive national and international measures[24]. These are important to reduce factors beyond the control of developing States that impede the full realization of right to health.
Conclusion
In this essay, I have tried to show the impact of poor economic development on health related concerns under section one. It is a widely held notion that ill-health and poverty are directly related. The poor suffer worse health and die younger and have higher than average child and maternal mortality, higher levels of disease, and more limited access to health care and social protection. Many national population health surveys of countries indicate that poor economic development affects health status of the people. The right to health includes timely and appropriate health care and the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions. These all determinants of health depend on Economic development.
Law has positive contribution to health. Law regulates behavior. Hence, it is important to correct the cultural problems people in countries of poor economic development. International human right instruments are important to create universal attention for right to health and other rights.
These laws serve as means of indoctrinating the society and improve life. These instruments also provide for cooperation among developed and developing nations to achieve right to health and provide for mechanisms of controlling state parties. Law is important to provide for the establishment of institutions which would undertake health related concerns. . Criminal Laws on health matters also sanction harmful actions against health. Laws and policies of a country on health matters serve as a plan to guide the action and motivate the interest of governments. The labor law of a state can improve the income and health of workers. Environmental law is important to protect healthy environment. A state with sufficient law on the different health issues is highly likely to achieve more in health.
[1] Bernard C.Nwaiwu, 'possible relationships between poverty and poor health-identifying some factors limiting access to health care by the poor' (Child Education development and empowerment trust fund (CEDE)Working Paper 1.3 24 August 2012) p.4 < www.cedetf.org/.../1.3%20possible%20relationship%20between %20pov.pdf.> accessed 28 Nov.2015
[2] Organization For Economic Co-Operation and Development world Health Organization (OECD) 'poverty and health' (DAC guide lines and references series 2003) p.15
[3] Shelley Phipps, The impact of poverty on health, (A paper submitted to Canadian Institute for Health Information June 2003) pp. 21 available at https://secure.cihi.ca/free_products/CPHIImpactonPoverty_e.pdf
[4] WHO, 'World Health statics Series 2015'(WHO Library Cataloguing-in-Publication Data ISBN 978 92 4 0694439) p.134
[5] Committee on ESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000(Contained in Document E/C.12/2000/4), paragraph 11
[6] id, paragraph 12
[7] Supra note 4, p.122 (emphasis added)
[8] supra note 2
[9]Supra note 4, p.18
[10] Supra note 2, P.22
[11] WHO ' 25 years Progress on sanitation and drinking water – 2015 update and MDG assessment' (2015 WHO Library Cataloguing-in-Publication Data ISBN 978 92 4 150914 5) p.4
[12] Supra note 2, P. 16
[13] Supra note 2, p.16
[15] ibid
[17] ibid
[18] ibid
[19]. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Art. 25(1)
[20] International covenant on Economic social and political rights (adopted 1966 UNGA Res 2200A(XXI) (ESCR) entered in to force Jan.3,1976) Art.12/1
[21] Id, Art. (12/2/a-d)
[22] Penelope Carroll etal, 'the widening gap: perceptions of poverty and income inequalities and implications for health and social outcomes' Social policy journal of New Zealand issue 37 June 2011, p.4 (emphasis added)
[23] Supra note20, Art.2(1)