The 2016 Morocco–Nigeria Bilateral Investment Treaty: More Practical Reality in Providing a Balanced Investment Treaty?

The law governing international investment comprises primarily treaties between individual States and regional arrangements focusing on investment provisions that protect and promote foreign investment and the principles of customary international law that govern it. Recently, there has been rapid growth in such agreements, and growing criticism of bilateral investment treaties (BITs) due to their unbalanced content and the vague and broad investment protection standards that can be interpreted in ways that prioritise investment protection over the right of host States to regulate. In this context, the Morocco–Nigeria BIT has been applauded as a balanced and innovative example of the genre and a response to the global backlash against BITs. This article shows how this BIT has taken a bold step towards such reconciliation, by attempting to balance investor protection with series of obligations placed on the investor on human rights, and environmental and social impact assessment, effectively safeguarding the host State’s regulatory space in relation to social and environmental matters. Whether this step has resolved the issue of balancing the interests of investment protection and the preservation of the regulatory interest of the host State is unlikely, given that some substantive provisions are drafted so as not to strike a proper balance between private and public interests. The discussion also shows that many provisions remain vague and, hence, continue to grant discretion to investor–State dispute settlement (ISDS) tribunals to determine the meaning of these provisions.