INTRODUCTION:
On 14 August 2024, Nigerians woke up to the news of the seizure of three (3) Nigeria's presidential jets, as ordered by a French court.1 The seizure stems from an application by Zhongshan, a Chinese company whose export processing zone management contract was terminated by the Ogun State government in 2016. Before this time, Nigeria and China had entered a Bilateral Investment Treaty (BIT) in 2001 to encourage investment between both countries. Sometime in 2010, Zhongshan Fucheng Industrial Investment Co. Ltd. (Zhongshan) through its parent company (Zhuhai Zhongfu Industrial Group Co. Ltd), agreed with the Ogun State government to develop the Ogun Guangdong Free Trade Zone (OGFTZ). In 2011,
Zhongshan set up a local entity - Zhongfu International Investment (NIG) FZE (Zhongfu) which was registered by the Nigeria Export Processing Zones Authority, to manage the development of the free trade zone. In 2013, the Ogun State government entered into a Joint Venture agreement with Zhongfu, appointing it as the permanent manager of the OGFTZ and giving it a majority shareholding in the OGFTZ project.2 Thereafter, Zhongfu commenced several works regarding the OGFTZ project.
However, it was reported that the Ogun State government abruptly terminated Zhongfu's appointment and also took actions to expel the company from Nigeria, including harassment of its executives and revocation of immigration papers.2 Consequently, Zhongfu initiated an investment treaty arbitration against Nigeria, citing the bilateral investment treaty between the People's Republic of China and Nigeria. On th 26 March 2021, an arbitral tribunal issued a inal award of $55,675,000 in addition to an interest of $9.4 million and costs of £2,864,445 payable by Nigeria to Zhongshan.4 It is in the realization of this arbitral award that the Nigeria's presidential jets and other assets belonging totheFederalRepublicofNigeria,were seized.
From the above, several questions have been asked by Nigerians regarding the propriety or otherwise of the claim against Nigeria instead of Ogun State being the party that terminated the said agreement resulting in the inal award that Zhongfu now seeks to enforce against Nigeria. Similarly, there are also questions as to whether a foreign country can seize the Federal Republic of Nigeria's assets, which seems to be a violation of Nigeria's sovereign immunity. The latter question will be addressed in full in our subsequent series on this case. However, this article seeks to address the rationale behind holding the Federal Republic of Nigeria accountable for the actions of its organ(s) in international investment arbitration.
ATTRIBUTION IN INTERNATIONAL INVESTMENT ARBITRATION
In the new era of investment arbitration, one aspect of state responsibility that has gained increasing signiicance is the attribution of conduct to states. Attribution can be deined as an operation, whereby an internationally wrongful act or omission is linked to a State, to make that State responsible for such an act or omission, irrespective of the fact that the act or omission was not committed by the "central/federal organ" of that State.5 The rules and principles governing attribution have become essential, particularly because States and their representatives often appear unaware of them. Thus, States are frequently surprised when investors invoke these rules to hold them accountable for certain actions before an arbitral tribunal.
It is essential to note that such invocations of attribution are not automatic, as the arbitral tribunal may have to irst consider whether the actions or omissions of an entity allegedly in violation of an international obligation are attributable to the State regarding that state's responsibility under the Bilateral Investment Treaty (BIT). This consideration is essential because States can only act by or through their agents and representatives.6 The question that may beg for an answer is then, which person(s) should be considered as acting on behalf of the state, or what constitutes an "act of the state." Before proffering an answer to the above question, it is essential to emphasize that the characterization of an act as internationally wrongful is based on international law, irrespective of how such an act is characterized under a State's municipal law.7 This implies that even though a particular act is lawful under the State's municipal law, it may nevertheless constitute a violation of an international obligation of the State.8
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Footnotes
1. Three Nigerian presidential jet seizure abroad as Ogun State, Chinese irm battle, https://www.premiumtimesng.com/news/724391-three-nigerian-presidential-jets-seized-abroad-as-ogunstate-chinese-irm-battle.html accessed on 20th August 2024.
2. Explainer: Why Nigerian Presidential aircraft was seized, https://tribuneonlineng.com/explainer-why-nigerian-presidential-aircraft-was-seized/ accessed on 20th August 2024.
3. See footnote 2.
4. See footnote 1
5. ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries in: II Yearbook of the International Law Commission 2 (2001)
6. ILC Draft Articles, Art. 2, para. 12
7. ILC Draft Articles, Art. 2
8. Kaj Hober, "Part II Substantive Issues, Ch. 14 State Responsibility and Attribution," https://oxia.ouplaw.com/view/10.1093/law:iic/9780199231386.001.1/law-iic-9780199231386-chapter14?prd=OSAIL accessed on 20th August 2024
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