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Nationalization of foreign investments in international law : the experience of selected African countries

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Kilingo, Ahmad S(Ahmad Salum) (1983) Nationalization of foreign investments in international law : the experience of selected African countries. Coursework Master thesis, University of Tasmania.

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Abstract

This work is divided into four broad chapters. The first,
discusses historical background to the concept and the rules governing
nationalization of foreign-owned property in general, the second
chapter deals with the question. of payment of compensation for
nationalized foreign-owned property, the third is concerned with the
role of foreign investments in African economic development and lastly
the fourth chapter is devoted to case studies of nationalization measures
in respect of selected African countries.
Regarding the rules of international law governing nationalization
measures, it is argued in the first chapter that, before the
Second World War, when nationalization measures were not popular,
international law concerned itself more with general acts of expropriation
of private property. Although expropriation is related to the
concept of nationalization, the two however, are distinct legal
phenomena. It was during the Middle Ages that international law developed
rules to regulate expropriation acts. The rules which emerged,
required that expropriation be carried out in furtherance of public
purpose and upon payment of prompt adequate and effective compensation.
This rule is attributed to natural law, the rationale of which is the
protection of the "acquired rights" (droits acquis).
After the Second World War, when acts of nationalization became
popular, the same rule developed during the Middle Ages to regulate
acts of expropriation was applied to regulate and protect foreign
investors from acts of nationalization by the host states. It was
therefore claimed that like expropriation, nationalization is lawful
if it is carried out in furtherance of public purpose and is accompanied
by payment of adequate, prompt and effective
compensation and without discrimination.
This principle has been stated in all leading text books, in
statements issued by foreign offices of capital exporting nations,
in bilateral commercial treaties, in conventions drafted by international
agencies, in judgments of national courts and in statements
issued by foreign offices of capital exporting nations, and in
statements issued by multinational corporations. Although the requirements of public purpose and non-discrimination
have been readily accepted by the international community,
the rule which requires payment of prompt, adequate and effective
compensation has received a considerable amount of opposition from
capital importing countries. This is so because the norm which
requires payment of prompt adequate and effective compensation is
inconsistent with the definition of nationalization. Reference of
such controversies to international tribunals by deploying concept
of diplomatic protection, would have been the best way of resolving
the conflict. The major obstacle in this regard however is the fact
that the concept of diplomatic protection itself, has not received a
universal acceptance in the international community. The most vocal
opponents of this concept are the countries adhering to the concept
of national treatment. Because of non-acceptability of traditional
norm regarding payment of compensation upon nationalization of
foreign-owned property, new norms were evolved by nationalizing
states.

Item Type: Thesis (Coursework Master)
Keywords: Government ownership, Compensation (Law), Eminent domain (International law), Investments, Foreign
Copyright Holders: The Author
Copyright Information:

Copyright 1983 the Author - The University is continuing to endeavour to trace the copyright
owner(s) and in the meantime this item has been reproduced here in good faith. We
would be pleased to hear from the copyright owner(s).

Additional Information:

Spine title: Nationalization in international law. Bibliography: leaves 161-171. Thesis (LL.M.)--University of Tasmania, 1986

Date Deposited: 19 Dec 2014 02:29
Last Modified: 09 May 2017 06:20
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