1 1Dr Muhammed Mustapha Akanbi, LLB (Ife), LLM (Lag), Phd (KCL, London), ACIarb (UK); Dean, Faculty of Law, University of Ilorin, Nigeria and Chairman, Nigeria Bar Association, Ilorin Branch, Kwara, Nigeria; email@example.com; Gbenga Olatunji, LL.B (Ibadan), Post graduate student at Wolfson College, Cambridge University assisted with the sourcing of materials for the article.
1 J.R. Kehl, 'Emerging Markets in Africa', African Journal of Political Science and International Relations Vol. 1, No. 1, May 2007, www.acadcmicjoumals.org/AJPStH accessed on 28/02/09. 2 See C.B. Barry and L.T. Lockwood, "New Directions in Research on Emerging Capital Markets," Financial Markets, Institutions and Instruments, Vol. 4, No. 5, (Oxford: Blackwell Publishers, 1995), p. 15; K. Mwenda, 'Securities Regulation And Emerging Markets: Legal And Institutional Issues For Southern And Eastern Africa', Murdoch University Electronic Journal of Law, Vol 7, No. 1, March 2000. ' Ibid. 4 Reem Heakal, Whatis anEmergingMnrketEconomy? Retrieved from htpp://www.investopedia.com/ articles/03/073003.aspon21-01-2009.
5 Hassan Adamu. 'Nigeria: A Profile' in Bankole Sodipo and Bunmi Fagbemi (eds), Nigeria'sForeignInvestmentLawsandIntellectualPropertyRights (Intellectual Property Law Unit, Queen Mary & Westfield College, University of London, London 1994)16. 6 For the purpose of this paper, the term developing economies means emerging markets. Various definitions have been used to explain what an emerging market means. Antoine Van Agtmael defines emerging market as an economy with low to middle income per capital income. Also in wikipedia, emerging markets is used to describe a nation's social or business activity in the process of rapid growth and industrialisation. 7 Javier Santiso, 'Africa: an emerging markets frontier', OECD Observer, http://www.oecdobserver.org/ news/fullstory.php/aid/2350 accessed on 02/03/09. 8 Mwenda, 'Securities Regulation And Emerging Markets: Legal And Institutional Issues For Southern And Eastern Africa'. v Ibid. 10 This is the basis of the criticism of Kehl against conceptualization of emerging markets. See Kehl, J.R., EmergingmarketsinAfrica. " Javier Santiso, 'Africa: an emerging markets frontier', OECD Observer, op cit. 'z Ibid.
'3 Robin Renee Sanders, 'The Focus of my Administration will not change', interview in The Nigerian Guardian, Wednesday, February 28, 2009, p. 7. �4 Javier Santiso, 'Africa: an emerging markets frontier', op cit. 15 Ibid. '6 Ibid. 17 Ibid. '8 Ibid.
�9 Ibid. 20 It is a joint publication of the OECD Development Centre and the African Development Bank. 21 Javier Santiso, 'Africa: an emerging markets frontier', op cit. 22 bid. z3 See Nigerian Enterprises Promotion (Repeal) Decree 1995; Ogundipe B.O, 'Resolution of Investment Related Disputes under Nigeria's New Investment Policy' (1997) 2(2) Modus International Law and Business Quarterly 6. 24 According to Oyckurde, it would have been perilous for developing nations to be left behind in the rules of the game of international arbitration. Thus they had to review their laws to create a more favourable climate for commercial activities to flourish in their territories and to accommodate foreign entrepreneurs. Sec Oyckuide T, 'International Commercial Arbitration in the Contemporary World from the Point of View of African Countries', (1989) 2(2) Gravitas Review ofBusiness and Property Law, p.68,71. 1. zs International Convention on the Settlement of Investment Disputes. zh W. Reisman, 'The Breakdown of the Control Mechanism in the ICSID Arbitration' (1989) 4 Duke Law Journal 750; K. Mwenda & N.G. Gobir, 'International Commercial Arbitration and the ICSID' (1998) 30 Zambia Law Journal 91. 1 . 27 See OECD (2007), op cit. For example, there is Kofi Bucknor, the Ghanaian who leads the Accra-based fund of Kingdom Zephyr African Management Company. There is also Vincent Le Guennou, the Harvard- educated manager of the largest private equity firm on the African continent: the $1 billion Emerging Capital Partners funds based in Tunis.
=" Ibid. 29 Ibid. 3n Ibid. Ibid. 3= Antoine Van Agtmael is the man who coined the term 'emerging markets' in 1981 and is of the International Finance Corporation of the World Bank. See FT.com/Columnists/John Authors — The Long View: How adventurous are emerging markets? 33 Interview by Emily Brandon, 'Investing in Emerging Markets' in the USNews of October 11, 2007. 34 Emphasis supplied. 3s Queen Mary University of London & PricewaterHouseCoopers, 'International Arbitration: Corporate Attitudes and Practices 2006' being a research done by the School of Intemational Arbitration, Queen Mary, University of London and sponsored by PricewaterCoopers, London. .1h Since this is another topic for discussion under this Workshop, we believe that detail attention will be given to it by the discussant.
37 Reem Heakal, IT7iatisanEmergingA9arketEconomy? .18 A good example of how EnnES can be high-risk investment opportunities can be seen in the 1997 Asian crisis during which international portfolio flows into these countries began to reverse themselves. 3" Interview by Emily Brandon, 'Investing in Emerging Markets'. .0 See generally, Mwenda, K., SecuritiesRegulationAndEmergingMarkets:LegalandInstitutionalIssuesforSouthernandEasternAfrica. Electronic Journal of Law, Vol. 7, No. 1, March 2000, at the following webpage: http://w>tvw.nnmdoch.edu.au/elaw�/issucs/v71/mwenda7lnfhtrnl. See also Barry, C.B., and Lockwood, L.J., NewDirectionsinRescarrh011EmergingCapitalR9arkeG,FirrancialMarkets,InstitutionsandInstruments, Vol. 4, No. 5, p. 17 (Oxford: Blackwell Publishing).
°r Emily Brandon's interview, supra. 42 Akpamgbo C.O., 'The Legal And Administrative Framework For Technological And Economic Development in Nigeria' in Bankole Sodipo and Bunnu Fagbcmi (eds), Nigeria'sForeignInvestmentLawnsandIntellectualPropertyRights (Intellectual Property Law Unit, Queen Mary & Westfield College, University of London, London 1994) p. 33. °; Irene Chigbue, 'The Effect of Commercialisation, Privatisation, Mergers, Acquisitions and Liberalisation in promoting the private sector and the use of Arbitration & Atm in Dispute settlement' in C.J. Amasikc (ed), ArbitrationandAlternativeDisputeResolutioninAfrica, (Dr C.J. Amasike & Associates, Abuja, Nigeria ZOOS) p. 177. 11 This refers to a broad range of options for involving the private sector in infrastructural services, from management contracts and leases to concessions, demonopolisation and full divestiture (sale) of enterprises. See Kerf and Smith, 'Privatising Africa's infrastructure: Promise and Challenge', The World Bank, Washington, DC, 1996. s P.O. Idornigie, 'Project Finance and Foreign Direct Investment in Africa: Need to create a legal and regulatory framework', being a paper delivered at the 4th International Arbitration and Alternative Dispute Resolution )ADR.] in Africa Workshop: 29-31 July, 2UUB: Conrad-Hilton, Cairo, Egypt.
46 In the eighties, the exchange rate of the Naira to the pound was almost at par. 47 See Omolayole M, `Wcalth Creation in A Free Enterprise Economy' (1998) 3(4) Modus International Law and Business Quarterly 90; According to the Vision 2010 Report, by 1996 aggregate Federal Government investment in public enterprises was about N100 billion, with an average annual rate of return of only about 2 percent. as According to Hamza R. Zayyad, the Chairman of the Technical Committee on Privatisation and Cornmcrcialisation, the investments of the Federal Government of Nigeria as at 30th November, 1990 was N36 billion and the returns from these investments never exceeded 2% per annum, which is less than 25% of the annual subventions from the government to the public enterprise sector. See H.R. Zayyad, 'Privatisation and Comnercilisation in Nigeria', lmp:/ /unpan_l.un.org/intradoc/groups/public/documents/ AAPAM/UNPAN028228.pdf, accessed on 14 February 2009; Jawando, 'Privatisation and Professionals' (1988) GRBFL 28. 49 Akanle, 0, 'The Background and the Decree' (1988) Gravitas Review ofBusiness and Property Law 31. 11 Fafowora, 0, 'Privatisation of Nigerian Utilities: Barriers & Constraints' (1998) 3(4) Modus International Law and Business Quarterly 37. 5' By the promotion and regulation of economic activities through appropriate legislation, for instance in the provision of a legal framework regulating the practice of arbitration in the settlement of disputes. 5'- See Adelaja and Adeycmi, 'Tripartite Solution to Small and Medium Scale Manufacturing Industries in Developing Countries: Nigeria Case Study', http://isis.fastmail.usf.cdu/ibIlManutech%20papers/ Adelaja%20&% 20Adeyemi.pdf accessed on 25 November 2005; see also D.A. Guobadia, 'Issues in Facilitating Foreign Investments For National Development in Nigeria' (1998) 2(4) Modern Practice Journal of Finance and Investment Law 38.
5' Cap. 369, Lhv2004. 54 Akpamgbo, 'The Legal And Administrative Framework For Technological And Economic Development in Nigeria' in Bankole Sodipo and Bunmi Fagbemi (eds), Nigeria'sF"re(�1IInvestmentLaw.sandIntellectualPropertyRights, p. 33. 55 Ibid; Hassan Adamu, 'Nigeria: A Profile' in l3ankole Sodipo and Bunmi Fagbemi (eds), NiAeria'sForer;qnInvestmentLawnsandIntellectual PropertyRights, p. 20. 56 Fafowora, 'Privatisation of Nigerian Utilities: Barriers & Constraints', p. 33. " See Part II of the First schedule of the Privatisation Act of 1988. 5s See Part I of the First schedule of the Privatisation Act of 1988. 59 See Part u of the Second schedule of the Privatisation Act of 1988. so See Part i of the Second schedule of the Privatisation Act of 1988. br Headed by Chief Olusegun Obasanjo. 62 Federal Government of Nigeria, 'Our Economic Agenda 1999-2003' (2000) 5(1) MILBQ 53, 54.
63 In recognition of the government's success the World Bank in 2004 endorsed the Bureau of Public Enterprise (BPE)'S management of the privatisation programme and its implementation of the Privatisation Support Project (Psp) of the Bank. See Ibe Paul, 'Privatisation: World Bank Endorses BPE, Others' This Day Newspaper (Nigeria 16 August 2004) http://www.thisdayonline.com/archive.php accessed on 03 January 2006. h; Hereinafter referred to as P&C. ss See Irene Chigbue, 'The Effect of Commercialisation, Privatisation, Mergers, Acquisitions and Liberalisation in promoting the private sector and the use of Arbitration & AuK in Dispute settlement', p.180. �� See the cases of NENA and NITEL in Nigeria. re Idornigie, 'Project Finance and Foreign Direct Investment in Africa: Need to create a legal and regulatory framework'. 6H Ibid.
bv H.R. Zayyad, 'Privatisation and Commercialisation in Nigeria'. 0 Ibid. r Czech Republic is in Central Europe. The examination is based on the research works ofJan Hanousek, Evzcn Kocenda and Jan Svejnar, Divestitures,PrivatizationsandCorporatePerformanceinEmergingMarkets retrieved from http: //www. test. aup. edu/lacca2005 /syste tii/step2_php/papers/svej nar-Svej.pdf. on 21-01-2009 and Hanousek, Jan, Evzen Kocenda and Jan Svejner, 2004. "Ownership, Control and Corporate Performance after Large-Scale Privatization" WilliamDavidsonInstituteWorkingPaper No. 562, University of Michigan Business School. See also Kocenda, Evzen, 1999, "Residual State Property in the Czech Republic", EastenrEuropeanEconomics, Vol. 37(5), pp. 6-35. 72 A country in Latin America. 73 Jan Hanousek, Evzen Kocenda and Jan Svejnar, Divestitures,PrivatizationsandCorporatePerformanceinEmergingMarkets retrieved from http://www.test.aup.edu/lacea2005/system/step2-php/papers/svcjnar_svej.pdf. on 21-01-2009 and Hanousek, Jan, Evzen Kocenda and Jan Svejner, 2004. 'Ownership, Control and Corporate Performance after Large-scale Privatization', WilliamDavidsonInstituteWorkingPaper No. 562, University of Michigan Business School. See also Kocenda, Evzen, 1999, "Residual State Property in the Czech Republic", EasternEuropeanEconomiu, Vol. 37(5), pp. 6-35.
" Some years back the country started as an almost completely state-owned, controlled and trade-protected economy, with its corporate sector being dominated by large SOE conglomerates. It rapidly opened itself to trade, liberalized prices and by 1995, it was transformed into an overwhelmingly privately-owned market economy through privatization. In the process, most of the large SOE conglomerates were broken up and the number of the medium and large industrial firms more than tripled on account of numerous spin-ofls, as well as entry of newly created firms. �5 Hanousek, Jan, Evzen Kocenda and Jan Svejner, 2004. 'Ownership, Control and Corporate Performance after Large-Scale Privatization', WilliamDavidsonInstituteWorkingPaper No. 562, University of Michigan Business School. 76 This paid off in Czech Republic because when transition countries (of which Czech Republic is one) declared their commitment to move towards a standard market economy, many countries, including Czech Republic succeeded in joining OECD countries soon after the start of the transition. 77 Burkhard, N.S., Three Essays on Investment and Risk Assessment in Emerging-Market countries, unpublished Doctoral Thesis, The Fletcher School of Law and Diplomacy, Tufts University, Medford, MA (2002).
78 Ibid. 79 Ibid.
$o Ibid. An important conclusion drawn in the research result is that the privatization of the Telefonos deChile in 1990 which came along with a large American depository receipt share tranche that was targeted towards US investors opened the first important pathway for developing countries to tap western capital markets in privatizing context. p� Javier Santiso, 'Africa: an emerging markets frontier'. Rz Ibid.