OVERCOMING FAILURE IN THE DESIGN AND IMPLEMENTATION OF PUBLIC-PRIVATE PARTNERSHIP PROJECTS: LESSONS FROM THE LEKKI TOLL ROAD CONCESSION

George Nwangwu

ABSTRACT

Government external borrowing is no new phenomenon in Africa. Many African countries, including Nigeria, often explore external financing whether to fund domestic projects or out of a need for foreign currency. In fact, Nigeria’s debt history with the World Bank and the International Monetary Fund is common knowledge. However, in addition to loans, governments also adopt instruments such as bonds to raise capital in the international capital market. One of such instruments is the Eurobond. The Eurobond is a type of bond sold to investors in domestic markets outside the country of the currency in which the bond is denominated. In Nigeria, the Eurobond has become a major instrument of external borrowing accounting for up to one-third of Nigeria’s total external debt. Since its adoption by the federal government, many private organisations have also followed suit. The Eurobond is simpler when compared with other instruments, due to the absence of strict regulation. However, despite its attractions, the increasing use of the Eurobond raises several economic implications for the country. With relatively simpler conditions, the frequent use of the Eurobond is increasing the country’s external exposure at a rapid pace. This article provides an overview of the Eurobond, its key features as well as its application in Nigeria. It further discusses the attractions to and identifies legal issues in connection with the Eurobond. Finally, this article presents economic implications of the increased use of the Eurobonds and recommends alternative options of financing.

Keywords: EuroBond; Utility; Global Debt; Government, Nigeria.

THE EUROBOND: A CRITIQUE OF ITS INCREASING UTILITY AS A GLOBAL DEBT INSTRUMENT IN NIGERIA

Bukola Alada

ABSTRACT

Government external borrowing is no new phenomenon in Africa. Many African countries, including Nigeria, often explore external financing whether to fund domestic projects or out of a need for foreign currency. In fact, Nigeria’s debt history with the World Bank and the International Monetary Fund is common knowledge. However, in addition to loans, governments also adopt instruments such as bonds to raise capital in the international capital market. One of such instruments is the Eurobond. The Eurobond is a type of bond sold to investors in domestic markets outside the country of the currency in which the bond is denominated. In Nigeria, the Eurobond has become a major instrument of external borrowing accounting for up to one-third of Nigeria’s total external debt. Since its adoption by the federal government, many private organisations have also followed suit. The Eurobond is simpler when compared with other instruments, due to the absence of strict regulation. However, despite its attractions, the increasing use of the Eurobond raises several economic implications for the country. With relatively simpler conditions, the frequent use of the Eurobond is increasing the country’s external exposure at a rapid pace. This article provides an overview of the Eurobond, its key features as well as its application in Nigeria. It further discusses the attractions to and identifies legal issues in connection with the Eurobond. Finally, this article presents economic implications of the increased use of the Eurobonds and recommends alternative options of financing.

Keywords: EuroBond; Utility; Global Debt; Government, Nigeria.

RECOGNITION AND ENFORCEMENT OF ENERGY ARBITRAL AWARDS

Tolulope Aderemi

ABSTRACT

Commercial disputes as with other facets of human interaction are inevitable. In the early oil and gas market era, unilateral action was the order of resolving disputes. With the exponential growth in the global energy market, disputes have consequently become more incremental and their resolution, more nuanced to ensure minimal or nil disruptions to operational activities. A mechanism that accommodates the character and resolution of such disputes is arbitration. This is so because it accommodates expert determinants in what has become a very technical and complex area, and which requires expert guidance for its resolution. However, the incursion of stringent regulations into settlement of disputes has become a point of challenge to arbitral awards in the energy sector, making the recognition and enforceability of energy awards more complex. This article examines how to effectively navigate the interstices of recognition and enforcement of energy arbitral awards. In particular, it examines the impact of section 50 of the National Power Sector Reform Act 2005 and section 11 of the Petroleum Act on adjudication of energy disputes in Nigeria, especially on the arbitrability of tax disputes in Production Sharing Contracts (PSCs). This article demonstrates that before arbitration clauses are inserted in contracts of parties in the energy sector, recourse should be had to the possible effect of statutory regulations on such disputes which may oust the jurisdiction of the arbitrator(s), and consequently make otiose the enforcement of the arbitral award made pursuant thereto.

Keywords: Energy Arbitration; Production Sharing Contracts; Arbitral Awards; Recognition; Enforcement.

TOWARDS A LEGAL FRAMEWORK FOR DEPLOYING CARBON TECHNOLOGIES TO ADDRESS THE ENVIRONMENTAL IMPACTS OF GAS FLARING IN NIGERIA

Fatima Bello

ABSTRACT

In 2019, Nigeria contributed 7, 825 million cubic meters (mln m3/yr) to global greenhouse gas emissions. A legal framework has been developed to curb gas flaring and create the incentive to utilise flare gas, which is derived in part from existing legislation, and from market-based incentives. This developed a mechanism to convert waste gas into wealth while protecting health and the environment – a winning formula. Given that the objective of the framework is to guard against waste and protect the environment, it has wasted an opportunity to convert flare emissions into wealth by creating a framework for the deployment of carbon technologies to guard against the environmental impact of gas flaring. This is pertinent because as the industry transits to low carbon, and as oil exploration is expected to continue in the immediate future, critical stakeholders are now investing in carbon technologies. The legal framework mostly channels its technologydriven approach towards utilising flare gas. However, this article finds that the mechanism for converting flare gas to wealth in the legal framework presents an opportunity to harness the potential carbon technologies to develop mechanisms for capturing and utilising carbon from flare facilities, building other industry ecosystems, and developing other environmentally sustainable value chains. As Nigeria continues to explore its petroleum resources, a framework to encourage its deployment is missing. This article analysis carbon technologies highlighting how they are deployed to tackle emissions and utilise emitted carbon. It also reviews the legal framework for curbing gas flaring in Nigeria and proposes by way of recommendation a legal framework for the deployment of carbon technologies to curb the environmental impact of gas flaring in Nigeria that paves the way for incentivising and developing other environmentally sustainable industrial ecosystems that utilise captured emissions from flare sites.

Keywords: gas flaring, carbon technologies, carbon capture, investment, waste gas to wealth

POPULATION GROWTH, GENDER AND SUSTAINABLE DEVELOPMENT GOALS (SDGs) IN NIGERIA

Oludayo Olorunfemi

ABSTRACT

The global population has more than tripled since the middle of the twentieth century, rising from roughly 2.5 billion in 1950 to nearly 7.9 billion in 2021. According to United Nations (UN) projections, the global population will reach about 11 billion people by the end of the twenty-first century, when it is predicted to stabilise. The population of Nigeria follows the same patterns as the rest of the world. Her population continues to rise at a rapid rate. To achieve the UN Sustainable Development Goals (SDGs), particularly those linked to reproductive health, education, gender equality, climate change, and the environment, comprehensive law and policy frameworks are required to slow population increase and advance gender equality in decision-making at family and community levels. This paper examines the current law and governance frameworks on gender equality in Nigeria to evaluate gaps that continue to exacerbate the population explosion. We offer several drivers of women's marginalisation at family and community levels, such as an imbalance in power relations, limited education for girls and women, financial inequality, and marginalisation in decision making, that continue to worsen population increase in Nigeria, therefore, slowing down progress on the SDGs' successful implementation and population control. On a multidimensional approach, we examine SDGs 5, 6, 7, 11, and 13 as tools for population control, women empowerment, and gender equality. The SDGs dynamics provide a model for environmentally healthy and long-term population control. This article analyses this from a feminist perspective as integral to sustainable development policies and activities.

Keywords: population growth, SDGs, environment, Nigeria

NORMATIVE ROLE OF THE ECOWAS COURT OF JUSTICE IN TRANSNATIONAL CORPORATE ACCOUNTABILITY

Akinwumi Ogunranti

ABSTRACT

There are growing cases and literature on the accountability of multinational corporations for their human rights abuses in developing countries and the overall implications of such violations for sustainable development. Courts in developed countries continue to declare corporate responsibility, using various approaches either under tort law or international human rights principles. These cases point to a growing corporate accountability norm that is changing the narrative that MNCs are not responsible for the actions of their subsidiaries in developing countries. This article examines how the Community Court of Justice of the Economic Community of West African States (ECCJ) can, through creative and purposeful interpretation of international guidance instruments, influence the obligatory implications of corporate responsibility in international human rights law. In doing this, it argues that the ECCJ must reconsider its stance on the status of State-owned Enterprises before the court.

Keywords: Corporate responsibility, sustainable development, MNCs, ECOWAS, Strategic litigation

WHEN FOREIGN INVESTMENT AND ITS DISPUTE MECHANISMS WORK AGAINST AFRICAN ECONOMIC ADVANCEMENT: REVENUE AND SUSTAINABLE DEVELOPMENT IMPLICATIONS

Marie-Louise Aren & Louis Koen

ABSTRACT

This article explores the importance of the disclosure of beneficial ownership in states revenue collection efforts and its implications for sustainable development. It critically analyses the concealment of beneficial ownership and investment tribunals uncritical acceptance of jurisdiction in such cases. The article suggests that this uncritical acceptance increases the risk of money laundering and could potentially breach fundamental principles of transnational policy. These tribunals have also been hesitant to consider the investors failure to pay taxes when awarding damages. In so doing, the tribunal offers a powerful enforcement tool for investors but leaves the state with only limited recourse.

Keywords: Taxation; Beneficial Ownership; Investment Arbitration; Revenue Law Exception; Counterclaims.

THEORIES AND PRACTICES ON DEPOSIT BONDS USE FOR ENVIRONMENTAL MANAGEMENT AND SUSTAINABLE DEVELOPMENT IN KENYA’S TITANIUM MINING PROJECTS

Geoffrey Omedo*,Kariuki Muigua**, Richard Mulwa** & Robert Kibugi**

ABSTRACT

This article analyses the use of economic incentives, particularly the Environmental Performance Deposit Bonds (EPDBs) in enhancing sustainable environmentally sound mine operations and closure. This is through a review of the environmental challenges and management practices at the Kwale Mineral Sands project. The article reviews the legal challenges around the effective regulation and application of the bonds for environmental management in upstream mining, as well as how the titanium mining project is undertaking environmental management as the mine approaches its closure deadline in 2023. It is important to note that Base Titanium, the company undertaking this project voluntarily deposited environmental reclamation deposit bonds of USD 512,000 to the environmental regulator, as financial assurance for good environmental practices. The data used in the analysis is from literature review, key informant interviews, interview schedules, and focus group discussions. Results indicate that Base Titanium is working hard to comply to the environmental standards and practices, applying the mitigation hierarchy approaches, as well as a robust mine reclamation process. The lack of a proper legal and regulatory framework governing Environmental Performance Deposit Bonds (EPDBs), as well as a non-existent deposit bonds registry systems and guidelines is a challenge to their effective institutionalization. The public and key stakeholders are also unaware of the existence of the bonds, unlike the well-laid down public participation principles in the Environmental (and Social) Impact Assessments (ESIAs) and Environmental Audits (EAs). While the study acknowledges that Base Titanium is greatly expanding the discourse on sustainable finance models for environmental management in Kenya, the lack of legal clarity and coherence is a major impediment for progressive growth in this area.

Keywords: Environmental Performance Deposit Bonds (EPDBs); Sustainable Development; Remediation; Environmental and Social Impact Assessments (ESIAs).

FOREIGN FICTIONS: ‘RESEARCH’ ABOUT ETHIOPIAN LEGAL REFORM IN A TOP-TIER ACADEMIC JOURNALS

Logan Cochrane*

ABSTRACT

Top tier academic journals claim to publish the most rigorous, peer reviewed research. This evidence based found therein is utilized to support decision making for sustainable development. In parallel, many journals that are published in the Global South are accused of written about Ethiopia and published in a top tier academic journal. The narratives and evidence from that top tier journal are contrasted with research published in Ethiopian journals. This case study shows that Ethiopian scholars have produced important research and contributed evidence, but have largely been ignored, or silenced, perpetuating foreign fictions. This is important because policy and law seeking to enable development are informed and influenced by the research produced in top tier journals. Based upon this, this journals, and further about the continued colonial power imbalances that exist within knowledge production systems. This has implications for universities and scholars, which continue to privilege a particular set of journals that are largely based in the Global North and wherein contributing authors are also largely based in the Global North. The reproduction of colonial relationships within global knowledge production systems calls for much broader critical reflection about whose voices are privileged as authentic conveyors of knowledge and how these privileges are institutionalized.

Keywords: Ethiopia, Foreign Fictions, Knowledge Production, Power, Narrative; Sustainable Development; SDGs

College of Public Policy, Hamad Bin Khalifa University, Doha, Qatar. Email: lcochrane@hbku.edu.qa

Institute of Policy and Development Research, Hawassa University

AMERICA OR INDIA: IDENTIFYING A SUITABLE OFF-GRID RURAL ELECTRIFICATION MODEL FOR NIGERIA

Eti Best Herbert

ABSTRACT

Most Nigerian living in the rural areas lack access to electricity due to lack of connectivity to the national grid network. The national grid expansion strategy to rural areas has not yielded much result due to financing and centralised approach. Off-grid electricity is considered more suitable for rapid electrification of rural areas. This paper examined the American and Indian approach to rural electrification and derived suitable lessons for Nigeria. While America ensured a robust national grid network to service rural areas, India adopted the renewable energy based off-grid options, thereby becoming the fastest developing country in rural electrification.

Keywords: Rural Electrification, Off-grid, National Grid, Renewable Energy, Financing, Decentralisation.

WHAT IS THE PROBLEM WITH STABILIZATION CLAUSES IN PETROLEUM AGREEMENTS?

Victoria R. Nalule*

ABSTRACT

International Oil Companies (IOCs) continue to invest in countries which do not have stabilization clauses. Why is this so? What is the essence of these clauses? One of the curiosities of stabilization clauses in petroleum agreements, is that most developed countries will not offer them to investors. So, why do developing countries with stable political, fiscal and regulatory climate offer them? Additionally, history shows that these stabilization clauses have not deterred host governments from expropriating petroleum investments. While governments may be able to make commitments of their own, as a matter of national sovereignty they may not be able to bind the legislative competence of the State into the future. These concerns are the main driver behind this article, which is influenced by the various questions asked by policymakers in the Global South on the importance of stabilization clauses for the sustainable development and management of natural resources.

Keywords: Stabilization; sustainable development; natural resources; oil and gas

Ph.D. (Dundee), Senior Research Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development (OGEES Institute).

TOWARDS THE INTERNATIONAL STANDARDIZATION OF CARBON DIOXIDE CAPTURE, TRANSPORTATION, UTILIZATION AND STORAGE (CCUS) TECHNOLOGIES: CURRENT CHALLENGES AND FUTURE DIRECTIONS.

Alexandre Gallo 1
Eduardo G. Pereira 2
Alberto Fossa 3
Hannah Hylton-Edwards 4
Thomas Muinze5
Edmilson Moutinho dos Santo 6
Clara Dybwad 7
Cylon Liaw*

INTRODUCTION

Climate change poses a serious threat to the development of the current and future generations. Therefore, Carbon Dioxide Capture, Transportation, Utilization and Storage (CCUS) has emerged as an essential tool to mitigate such impacts of global warming along with other initiatives and strategic decisions such as energy transition and conservation, sustainable practices amongst others. This article is focused on the CCUS practices and more specifically the peculiarities of CCUS vis-à-vis the standardization rules at the International Organization for Standardization (ISO). The main question this article aims to address is to determine if CCUS should have its own standing technical committee (TC) or if it should be somehow related to the existing Carbon Capture and Storage (CCS) technical committee.

Keywords: Climate Change; Energy Transition; CCS, CCUS, ISO, CO2, GHG and Standards.

DOI-https://dx.doi.org/10.4314/jsdlp.v12i2.2

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1 Alexandre Gallo (University of São Paulo – Research Centre for Gas Innovation)
2 Dr. Eduardo G. Pereira (University of São Paulo – Research Centre for Gas Innovation, University of West Indies and Siberian Federal University)
3 Dr. Alberto Fossa (University of São Paulo – Research Centre for Gas Innovation)
4 Dr. Thomas Muinzer (University of Aberdeen)
5 Hannah Hylton-Edwards (University of West Indies)
6 Dr. Edmilson Moutinho dos Santos (University of São Paulo – Research Centre for Gas Innovation)
7 Clara Dybwad (University of São Paulo – Research Centre for Gas Innovation)
* Cylon Liaw (University of São Paulo – Research Centre for Gas Innovation)