ECOWAS Energy Protocol

"Area" means with respect to a state that is a Contracting Party:

"Community" means the Economic Community of West African States established by Article 2 of the ECOWAS Treaty.

"Contracting Party" means an ECOWAS Member State or Regional Economic Integration Organization which has consented to be bound by this Protocol and for which the Protocol is in force.

"Cost-Effective" or “Cost-Effectiveness” means achievement of a defined objective at the lowest cost or to achieve the greatest benefit at a given cost.

"Economic Activity in the Energy Sector" means an economic activity concerning the exploration, extraction, refining, production, storage, land transport, transmission, distribution, trade, marketing, or sale of Energy Materials and Products except those included in Annex B, or concerning the distribution of heat to multiple premises.

"Energy Cycle" means the entire energy chain, including activities related to prospecting for, exploration, production, conversion, storage, transport, distribution and consumption of the various forms of energy, and the treatment and disposal of wastes, as well as the decommissioning, cessation or closure of these activities, minimizing harmful Environmental Impacts;

"Energy Materials and Products", based on the Harmonized System of the World Customs Organization, means the items included in Annexes A .

"Energy-Related Equipment", based on the Harmonised System of the World Customs Organization, means the items included in a list as adopted by the Meeting of Energy Ministers.

"Environmental Impact" means any effect caused by a given activity on the environment, including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interactions among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors;

"Executive Secretariat" means the Executive Secretariat established under Article 17 of the ECOWAS Treaty.

"Freely Convertible Currency" means a currency which is widely traded in international foreign exchange markets and widely used in international transactions.

"Improving Energy Efficiency" means acting to maintain the same unit of output (of goods or services) without reducing the quality or performance of the output, while reducing the amount of energy required to produce that output;

"Intellectual Property" includes copyrights and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits and the protection of undisclosed information.

"Investment" means every kind of asset, owned or controlled directly or indirectly by an Investor and includes:

A change in the form in which assets are invested does not affect their character as investments and the term "Investment" includes all investments, whether existing at or made after the later of the date of entry into force of this Protocol for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the "Effective Date") provided that this Protocol shall only apply to matters affecting such investments after the Effective Date.

"Investment" refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as "efficiency projects" and so notified to the Executive Secretariat of ECOWAS.

"Investor" means:

"Make Investments" or "Making of Investments" means establishing new Investments, acquiring all or part of existing Investments or moving into different fields of Investment activity.

"Meeting of Energy Ministers" means the meeting of the organ responsible for implementation of the present Protocol composed by the Energy Ministers of ECOWAS.

"Regional Economic Integration Organization" means an organization constituted by Member States to which they have transferred competence over certain matters a number of which are governed by this Protocol, including the authority to take decisions binding on them in respect of those matters.

"Returns" means the amounts derived from or associated with an Investment, irrespective of the form in which they are paid, including profits, dividends, interest, capital gains, royalty payments, management, technical assistance or other fees and payments in kind.

A Contracting Party shall not apply any trade-related investment measure that is inconsistent with the provisions of article III or XI of the GATT 1994; this shall be without prejudice to the Contracting Party's rights and obligations under the WTO Agreement and Article 29 of this Protocol. '

Such measures include any investment measure which is mandatory or enforceable under domestic law or under any administrative ruling, or compliance with which is necessary to obtain an advantage, and which requires:

Nothing in paragraph (1) shall be construed to prevent a Contracting Party from applying the trade-related investment measures described in subparagraphs (2)(a) and (c) as a condition of eligibility for export promotion, foreign aid, government procurement or preferential tariff or quota programmes.

Notwithstanding paragraph (1), a Contracting Party may temporarily continue to maintain trade-related investment measures which were in effect more than 180 days before its signature of this Protocol, subject to the notification and phase-out provisions set out in Annex C.

Each Contracting Party shall work to alleviate market distortions and barriers to competition in Economic Activity in the Energy Sector.

Each Contracting Party shall ensure that within its jurisdiction it has and enforces such laws as are necessary and appropriate to address unilateral and concerted anticompetitive conduct in Economic Activity in the Energy Sector.

Contracting Parties with experience in applying competition rules shall give full consideration to providing, upon request and within available resources, technical assistance on the development and implementation of competition rules to other Contracting Parties.

Contracting Parties may co-operate in the enforcement of their competition rules by consulting and exchanging information.

If a Contracting Party considers that any specified anti-competitive conduct carried out within the Area of another Contracting Party is adversely affecting an important interest relevant to the purposes identified in this Article, the Contracting Party may notify the other Contracting Party and may request that its competition authorities initiate appropriate enforcement action. The notifying Contracting Party shall include in such notification sufficient information to permit the notified Contracting Party to identify the anti-competitive conduct that is the subject of the notification and shall include an offer of such further information and co-operation as the notifying Contracting Party is able to provide. The notified Contracting Party or, as the case may be, the relevant competition authorities may consult with the competition authorities of the notifying Contracting Party and shall accord full consideration to the request of the notifying Contracting Party in deciding whether or not to initiate enforcement action with respect to the alleged anti-competitive conduct identified in the notification. The notified Contracting Party shall inform the notifying Contracting Party of its decision or the decision of the relevant competition authorities and may if it wishes inform the notifying Contracting Party of the grounds for the decision. If enforcement action is initiated, the notified Contracting Party shall advise the notifying Contracting Party of its outcome and, to the extent possible, of any significant interim development.

Any information provided under the terms of this Article shall be made only with due regard for internal laws of a Contracting Party regarding disclosure of information, confidentiality or business secrecy.

The procedures set forth in paragraph (5) and Article 27(1) shall be the exclusive means within this Protocol of resolving any disputes that may arise over the implementation or interpretation of this Article.

Contracting Parties agree that open and non-discriminatory access to power generation sources and transmission facilities encourages investment in generation and distribution facilities, and thereby increases competition in such sub-sectors of the power industry, in turn leading to reduced cost for power. Contracting Parties agrees therefore to make accessible for all other Contracting Parties and Investors, without any discrimination, power generation sources and transmission facilities sited within their Areas.

Each Contracting Party shall take the necessary measures to facilitate the Transit of Energy Materials and Products consistent with the principle of freedom of transit and without distinction as to the origin, destination or ownership of such Energy Materials and Products or discrimination as to pricing on the basis of such distinctions, and without imposing any unreasonable delays, restrictions or charges.

Contracting Parties shall encourage relevant entities to co-operate in:

Each Contracting Party undertakes that its provisions relating to transport of Energy Materials and Products and the use of Energy Transport Facilities shall treat Energy Materials and Products in Transit in no less favourable a manner than its provisions treat such materials and products originating in or destined for its own Area, unless an existing international agreement provides otherwise. Contracting Parties shall, subject to paragraphs (6) and (7), secure established flows of Energy Materials and Products to, from or between the Areas of other Contracting Parties.

In the event that Transit of Energy Materials and Products cannot be achieved by means of existing Energy Transport Facilities consistent with paragraph (1), the Contracting Parties shall not place obstacles in the way of new capacity being established, except in the case where a Contracting Party can prove that the new capacity or the building of new capacities would endanger the security or efficiency of the existing energy system, including supply security, except as may be otherwise provided in applicable legislation which is consistent with paragraph (1).

A Contracting Party through whose Area Energy Materials and Products may transit shall not be obliged to

which it demonstrates to the other Contracting Parties concerned would endanger the security or efficiency of its energy systems, including the security of supply.

A Contracting Party through whose Area Energy Materials and Products transit shall not, in the event of a dispute over any matter arising from that Transit, interrupt or reduce, permit any entity subject to its control to interrupt or reduce, or require any entity subject to its jurisdiction to interrupt or reduce the existing flow of Energy Materials and Products prior to the conclusion of the dispute resolution procedures set out in paragraph (7), except where this is specifically provided for in a contract or other agreement governing such Transit or permitted in accordance with the conciliator's decision.

The following provisions shall apply to a dispute envisioned by paragraph (6), but only following the exhaustion of all relevant contractual or other dispute resolution remedies previously agreed between the Contracting Parties party to the dispute or between any entity referred to in paragraph (6) and an entity of another Contracting Party to the dispute:

Nothing in this Article shall derogate from a Contracting Party's rights and obligations under international law including customary international law, existing bilateral or multilateral agreements, including rules concerning submarine cables and pipelines.

This Article shall not be so interpreted as to oblige any Contracting Party which does not have a certain type of Energy Transport Facilities used for Transit to take any measure under this Article with respect to that type of Energy Transport Facilities. Such a Contracting Party is, however, obliged to comply with paragraph (4).

For the purposes of this Article:

The Contracting Parties agree to promote access to and transfer of energy technology on a commercial and non-discriminatory basis to assist effective trade in Energy Materials and Products and Investment and to implement the objectives of this Protocol subject to their laws and regulations, and to the protection of Intellectual Property rights.

Accordingly, to the extent necessary to give effect to paragraph (1) the Contracting Parties shall eliminate existing obstacles and create no new ones to the transfer of technology in the field of Energy Materials and Products and related equipment and services, subject to non-proliferation and other international obligations.

The Contracting Parties acknowledge the importance of open capital markets in encouraging the flow of capital to finance trade in Energy Materials and Products and for the making of and assisting with regard to Investments in Economic Activity in the Energy Sector in the Areas of other Contracting Parties. Each Contracting Party shall accordingly endeavour to promote conditions for access to its capital market by companies and nationals of other Contracting Parties, or, any other third state, for the purpose of financing trade in Energy Materials and Products and for the purpose of Investment in Economic Activity in the Energy Sector in the Areas of those other Contracting Parties, on a basis no less favourable than that which it accords in like circumstances to its own companies and nationals or companies and nationals of any other Contracting Party or any third state, whichever is the most favourable.

A Contracting Party may adopt and maintain programmes providing for access to their Investors to public loans, grants, guarantees or insurance for facilitating trade or Investment within the Area of other Contracting Parties. It shall make such facilities available, consistent with the objectives, constraints and criteria of such programmes (including any objectives, constraints or criteria relating to the place of business of an applicant for any such facility or the place of delivery of goods or services supplied with the support of any such facility) for Investments in the Economic Activity in the Energy Sector of other Contracting Parties or for financing trade in Energy Materials and Products with other Contracting Parties.

Contracting Parties shall, in implementing programmes in Economic Activity in the Energy Sector to improve the economic stability and investment climates of the Contracting Parties, seek as appropriate to encourage the operations and take advantage of the expertise of relevant international financial institutions.

Nothing in this Article shall prevent:

Each Contracting Party shall, in accordance with the provisions of this Protocol, encourage and create stable, equitable, favourable and transparent conditions for Investors to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or with respect to an Investment.

Each Contracting Party shall endeavour to accord to Investors, as regards the Making of Investments in its Area, the Treatment described in paragraph (3).

For the purposes of this Article, "Treatment" means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or, indeed, of any third state, whichever is the most favourable.

Each Contracting Party shall, as regards the Making of Investments in its Area, endeavour to:

Each Contracting Party shall, in its Area, accord to Investments of Investors and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to its own Investors or of the Investors of any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.

The modalities of application of paragraph (6) may exclude programmes under which a Contracting Party provides to its own national investors grants or other financial assistance, or enters into contracts, for energy technology research and development. Each Contracting Party shall through the Executive Secretariat of ECOWAS keep the Meeting of Energy Ministers informed of the modalities it applies to the programmes described in this paragraph.

Each state or Regional Economic Integration Organization which signs or accedes to this Protocol shall, on the date it signs the Protocol or deposits its instrument of accession, submit to the Executive Secretariat of ECOWAS a report summarizing all laws, regulations or other measures relevant to:

A Contracting Party shall keep its report up to date by promptly submitting amendments to the Executive Secretariat of ECOWAS. The Meeting of Energy Ministers shall review these reports periodically.

In respect of subparagraph (a) the report may designate parts of the energy sector in which a Contracting Party accords to Investors the Treatment described in paragraph (3).

In respect of subparagraph (b) the review by the Meeting of Energy Ministers may consider the effects of such programmes on competition and Investments.

Notwithstanding any other provision of this Article, the treatment described in paragraphs (3) and (6) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as specified in the corresponding provisions of the applicable international agreements for the protection of Intellectual Property rights to which the respective Contracting Parties are parties.

For the purposes of Article 26, the application by a Contracting Party of a traderelated investment measure as described in Article 5(1) and (2) to an Investment of an Investor existing at the time of such application shall, subject to Article 5(3) and (4), be considered a breach of an obligation of the former Contracting Party under this Part.

Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to Investments, investment agreements, and investment authorizations.

A Contracting Party shall, subject to its laws and regulations relating to the entry, stay and work of natural persons, examine in good faith requests by Investors and key personnel who are employed by such Investors or by Investments of such Investors, to enter and remain temporarily in its Area to engage in activities connected with the making or the development, management, maintenance, use, enjoyment or disposal of relevant Investments, including the provision of advice or key technical services.

A Contracting Party shall permit Investors which have Investments in its Area, and Investments of such Investors, to employ any key person of the Investor's or the Investment's choice regardless of nationality and citizenship provided that such key person has been permitted to enter, stay and work in the Area of the Contracting Party and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person.

Except where Article 13 applies, an Investor which suffers a loss with respect to any Investment in the Area of a Contracting Party owing to war or other armed conflict, state of national emergency, civil disturbance, or other similar event in that Area, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, treatment which is the most favourable of that which that Contracting Party accords to any other Investor, whether its own Investor, the Investor of any other Contracting Party, or the Investor of any third state.

Without prejudice to paragraph (1), an Investor which, in any of the situations referred to in that paragraph, suffers a loss in the Area of a Contracting Party resulting from

shall be accorded restitution or compensation which in either case shall be prompt, adequate and effective.

Investments of Investors in the Area of any Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as "Expropriation") except where such Expropriation is:

Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the "Valuation Date").

Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment.

The Investor affected shall have a right to prompt review, under the law of the Contracting Party making the Expropriation, by a judicial or other competent and independent authority of that Contracting Party, of its case, of the valuation of its Investment, and of the payment of compensation, in accordance with the principles set out in paragraph (1).

For the avoidance of doubt, Expropriation shall include situations where a Contracting Party expropriates the assets of a company or enterprise in which an Investor has an Investment, including through the ownership of shares.

Each Contracting Party shall with respect to Investments made in its Area by Investors guarantee the freedom of transfer into and out of its Area, including the transfer of:

Transfers under paragraph (1) shall be effected without delay and (except in case of a Return in kind) in a Freely Convertible Currency.

Transfers shall be made at the market rate of exchange existing on the date of transfer with respect to spot transactions in the currency to be transferred. In the absence of a market for foreign exchange, the rate to be used will be the most recent rate applied to inward investments or the most recent exchange rate for conversion of currencies into Special Drawing Rights, whichever is more favourable to the Investor.

Notwithstanding paragraphs (1) to (3), a Contracting Party may protect the rights of creditors, or ensure compliance with laws on the issuing, trading and dealing in securities and the satisfaction of judgements in civil, administrative and criminal adjudicatory proceedings, through the equitable, non-discriminatory, and good faith application of its laws and regulations.

Notwithstanding subparagraph (1)(b), a Contracting Party may restrict the transfer of a Return in kind in circumstances where the Contracting Party is permitted under Article 29(2) or the WTO Agreement to restrict or prohibit the exportation or the sale for export of the product constituting the Return in kind; provided that a Contracting Party shall permit transfers of Returns in kind to be effected as authorized or specified in an investment agreement, investment authorization, or other written agreement between the Contracting Party and either an Investor or its Investment.

If a Contracting Party or its designated agency (hereinafter referred to as the "Indemnifying Party") makes a payment under an indemnity or guarantee given in respect of an Investment of an Investor (hereinafter referred to as the "Party Indemnified") in the Area of another Contracting Party (hereinafter referred to as the "Host Party"), the Host Party shall recognize:

The Indemnifying Party shall be entitled in all circumstances to:

as the Party Indemnified was entitled to receive by virtue of this Protocol in respect of the Investment concerned.

In any proceeding under Article 26, a Contracting Party shall not assert as a defence, counterclaim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an insurance or guarantee contract.

nothing in Chapter III or V of this Protocol shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and

nothing in such terms of the other agreement shall be construed to derogate from any provision of Chapter III or V of this Protocol or from any right to dispute resolution with respect thereto under this Protocol,

a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organized; or

an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party:

The Contracting Parties recognize state sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law.

Without affecting the objectives of promoting access to energy resources, and exploration and development thereof on a commercial basis, this Protocol shall in no way prejudice the rules in Contracting Parties governing the system of property ownership of energy resources.

Each state continues to hold in particular the rights to decide the geographical areas within its Area to be made available for exploration and development of its energy resources, the optimization of their recovery and the rate at which they may be depleted or otherwise exploited, to specify and enjoy any taxes, royalties or other financial payments payable by virtue of such exploration and exploitation, and to regulate the environmental and safety aspects of such exploration, development and reclamation within its Area, and to participate in such exploration and exploitation, inter alia, through direct participation by the government or through state enterprises.

The Contracting Parties undertake to facilitate access to energy resources, inter alia, by allocating in a non-discriminatory manner on the basis of published criteria authorizations, licences, concessions and contracts to prospect and explore for or to exploit or extract energy resources.

In pursuit of sustainable development and taking into account its obligations under those international agreements concerning the environment to which it is party, each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts occurring either within or outside its Area from all operations within the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting Party shall act in a Cost-Effective manner. In its policies and actions each Contracting Party shall strive to take precautionary measures to prevent or minimize environmental degradation. The Contracting Parties agree that the polluter in the Areas of Contracting Parties, shall bear the cost of the avoidance, elimination, and clean-up of any pollution, as well as the cost of any other consequences of such pollution, including trans-boundary pollution, with due regard to the public interest and without distorting Investment in the Energy Cycle or international trade. Contracting Parties shall accordingly:

At the request of one or more Contracting Parties, disputes concerning the application or interpretation of provisions of this Article shall, to the extent that arrangements for the consideration of such disputes do not exist in other appropriate international fora, be reviewed by the Meeting of Energy Ministers aiming at a solution.

Laws, regulations, judicial decisions and administrative rulings of general application which affect trade in Energy Materials and Products or Energy-Related Equipment are, in accordance with Article 29(2), among the measures subject to the transparency disciplines of the WTO Agreement.

Laws, regulations, judicial decisions and administrative rulings of general application made effective by any Contracting Party, and agreements in force between Contracting Parties, which affect other matters covered by this Protocol shall also be published promptly in such a manner as to enable Contracting Parties and Investors to become acquainted with them. The provisions of this paragraph shall not require any Contracting Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any Investor.

Each Contracting Party shall designate one or more enquiry points to which requests for information about the above mentioned laws, regulations, judicial decisions and administrative rulings may be addressed and shall communicate promptly such designation to the Executive Secretariat of ECOWAS which shall make it available on request.

Except as otherwise provided in this Article, nothing in this Protocol shall create rights or impose obligations on Investors with respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of this Protocol, this Article shall prevail to the extent of the inconsistency.

Article 7(3) shall apply to Taxation Measures other than those on income or on capital, except that such provision shall not apply to:

Article 10(2) and (6) shall apply to Taxation Measures of the Contracting Parties other than those on income or on capital, except that such provisions shall not apply to:

Article 29(2) to (8) shall apply to Taxation Measures other than those on income or on capital.

For the avoidance of doubt, Article 14 shall not limit the right of a Contracting Party to impose or collect a tax by withholding or other means.

For the purposes of this Article:

Each Contracting Party shall ensure that any state enterprise which it maintains or establishes shall conduct its activities in relation to the sale or provision of goods and services in its Area in a manner consistent with the Contracting Party's obligations under Chapter III of this Protocol.

No Contracting Party shall encourage or require such a state enterprise to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under other provisions of this Protocol.

Each Contracting Party shall ensure that if it establishes or maintains an entity and entrusts the entity with regulatory, administrative or other governmental authority, such entity shall exercise that authority in a manner consistent with the Contracting Party's obligations under this Protocol.

No Contracting Party shall encourage or require any entity to which it grants exclusive or special privileges to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under this Protocol.

For the purposes of this Article, "entity" includes any enterprise, agency or other organization or natural person.

Each Contracting Party is fully responsible under this Protocol for the observance of all provisions of the Protocol, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its Area.

The dispute settlement provisions in Chapters II, IV and V of this Protocol may be invoked in respect of measures affecting the observance of the Protocol by a Contracting Party which have been taken by regional or local governments or authorities within the Area of the Contracting Party.

This Article shall not apply to Articles 12, 13 and 29.

The provisions of this Protocol other than

The provisions of this Protocol other than those referred to in paragraph (1) shall not be construed to prevent any Contracting Party from taking any measure which it considers necessary:

Such measure shall not constitute a disguised restriction on Transit.

The provisions of this Protocol which accord most favoured nation treatment shall not oblige any Contracting Party to extend to an Investor any preferential treatment resulting from that Contracting Party’s membership of a free-trade area or customs union.

The provisions of this Protocol shall not be so construed as to oblige a Contracting Party which is party to an Economic Integration Agreement (hereinafter referred to as "EIA") to extend, by means of most favoured nation treatment, to another Contracting Party which is not a party to that EIA, any preferential treatment applicable between the parties to that EIA as a result of their being parties thereto.

For the purposes of paragraph (1), "EIA" means an agreement substantially liberalizing, inter alia, trade and investment, by providing for the absence or elimination of substantially all discrimination between or among parties thereto through the elimination of existing discriminatory measures and/or the prohibition of new or more discriminatory measures, either at the entry into force of that agreement or on the basis of a reasonable time frame.

This Article shall not affect the application of the WTO Agreement.

Disputes between a Contracting Party and an Investor relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Chapter III shall, if possible, be settled amicably.

If such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:

Each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article.

In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:

A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Protocol and applicable rules and principles of international law.

An Investor other than a natural person which has the nationality of a Contracting Party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a "national of another Contracting Party" and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a "national of another State".

The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the prompt and effective enforcement in its Area of such awards.

Contracting Parties shall endeavour to settle disputes concerning the application or interpretation of this Protocol through diplomatic channels.

If a dispute has not been settled in accordance with paragraph (1) within a reasonable period of time, either party thereto may, except as otherwise provided in this Protocol or agreed in writing by the Contracting Parties, and except as concerns the application or interpretation of Article 6 or Article 19 upon written notice to the other party to the dispute submit the matter to an ad hoc tribunal under this Article.

Such an ad hoc arbitral tribunal shall be constituted as follows:

The provisions of this Article shall apply to trade in Energy Materials and Products and Energy-Related Equipment while any Contracting Party is not a member of the WTO.

Trade in Energy Materials and Products and Energy-Related Equipment between Contracting Parties at least one of which is not a member of the WTO shall be governed, subject to the exceptions and rules provided for in Annex D, by the provisions of the WTO Agreement, as applied and practised with regard to Energy Materials and Products and Energy-Related Equipment by members of the WTO among themselves, as if all Contracting Parties were members of the WTO.

Each signatory to this Protocol, and each state or Regional Economic Integration Organization acceding to this Protocol, shall on the date of its signature or of its deposit of its instrument of accession provide to the Executive Secretariat of ECOWAS a list of all customs duties and other charges levied on Energy Materials and Products at the time of importation or exportation, notifying the level of such duties and charges applied on such date of signature or deposit. Any changes to such duties or other charges shall be notified to the Executive Secretariat of ECOWAS, which shall inform the Contracting Parties of such changes.

Each Contracting Party shall endeavour not to increase any customs duty or tariff rate or other charge levied at the time of importation or exportation:

A Contracting Party may increase such customs duty or other charge above the level referred to in paragraph (4) only if:

In respect of trade between Contracting Parties at least one of which is not a member of the WTO, no such Contracting Party shall increase any customs duty or charge of any kind imposed on or in connection with importation or exportation of Energy Materials and Products listed in Annex A or Energy-Related Equipment listed in the document to be adopted by the Meeting of Energy Ministers under the terms of Article 30 of this Protocol above the lowest of the levels applied on the date of the decision by the Meeting of Energy Ministers to list the particular item in the relevant Annex or document.

A Contracting Party may increase such customs duty or other charge above that level only if:

Other duties and charges imposed on or in connection with importation or exportation of Energy Materials and Products or Energy-Related Equipment shall be subject to the provisions of the Understanding on the Interpretation of Article II: 1(b) of the GATT 1994 as modified according to Annex D.

Annex E shall apply:

The Meeting of the Energy Ministers of the ECOWAS Member States shall be the organ responsible for implementation of the West African Energy Protocol.

The functions of the Meeting of Energy Ministers shall be to:

In the performance of its duties, the Meeting of Energy Ministers, through the Secretariat, shall co-operate with and make as full a use as possible, consistent with economy and efficiency, of the services and programmes of other institutions and organizations with established competence in matters related to the objectives of this Protocol.

The Meeting of Energy Ministers may establish such subsidiary bodies as it considers appropriate for the performance of its duties.

The Meeting of Energy Ministers shall consider and adopt rules of procedure and financial rules.

In accomplishing its mission, the Meeting of Energy Ministers shall receive the support of the Executive Secretariat of ECOWAS which is responsible for implementing the decisions of the Community.

The Executive Secretariat of ECOWAS shall provide to the Meeting of Energy Ministers all assistance necessary for accomplishment of its mission and shall exercise the functions assigned to it under this Protocol or any other Agreement under Article 37 of this Protocol and any other functions that may be assigned to it by the Meeting of Energy Ministers.

Decisions of the Meeting of Energy Ministers shall be by consensus, or a simple majority, of members present at the meeting.

Decisions may not be taken unless a minimum of two thirds of the Member States are represented at the meeting.

Any Contracting Party may submit proposals for amending or revising this Protocol.

All such proposals should be submitted to the Executive Secretariat of the ECOWAS which shall distribute them to the Member States within thirty (30) days after their receipt. The Meeting of the Energy Ministers of ECOWAS will examine the amendments or revisions proposals within three (3) months accorded to the Contracting Parties.

The amendments and revisions shall be adopted by the Meeting of the Energy Ministers of ECOWAS in accordance with the provisions of article 33 of this Protocol and submitted to all the Contracting Parties for ratification according to their respective constitutional procedures. They will enter into force and effect in accordance with the provisions of Article 39 of this Protocol.

The Meeting of Energy Ministers may authorize the negotiation of a number of Agreements or declarations in order to pursue the objectives and principles of this Protocol.

Any signatory to this Protocol may participate in such negotiation.

A state or Regional Economic Integration Organization shall not become a party to any agreement referred to in paragraph (1), above, or declaration unless it is, or becomes at the same time, a signatory and a Contracting Party to this Protocol.

Subject to paragraph (3) and subparagraph (6)(a), final provisions applying to a protocol shall be defined in that protocol.

An Agreement shall apply only to the Contracting Parties which consent to be bound by it, and shall not derogate from the rights and obligations of those Contracting Parties not party to the Agreement.

The Meeting of Energy Ministers may authorize the negotiation of association agreements with states or Regional Economic Integration Organizations, or with international organizations, in order to pursue the objectives and principles of this Protocol and the provisions of this Protocol or any other Agreements such as those referred to in Article 37.

The relationship established with and the rights enjoyed and obligations incurred by an associating state, Regional Economic Integration Organization, or international organization shall be appropriate to the particular circumstances of the association, and in each case shall be set out in the association agreement.

This Protocol and the attached annexes which form an integral part thereof shall enter into force on the ninetieth day after the date of deposit of the ninth instrument of ratification thereof, or of accession thereto, by an ECOWAS Member State.

For each state or Regional Economic Integration Organization which ratifies this Protocol or accedes thereto after the deposit of the ninth instrument of ratification it shall enter into force on the ninetieth day after the date of deposit by such state or Regional Economic Integration Organization of its instrument of ratification, or accession.

For the purposes of paragraph (1), any instrument deposited by a Regional Economic Integration Organization shall not be counted as additional to those deposited by Member States of ECOWAS.

Each signatory agrees to apply this Protocol provisionally pending its entry into force for such signatory in accordance with Article 39, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

Pending the entry into force of this Protocol the signatories shall meet periodically in the provisional Meeting of Energy Ministers, the first meeting of which shall be convened by the ECOWAS Executive Secretariat.

A state or Regional Economic Integration Organization which, prior to this Protocol's entry into force, accedes to the Protocol in accordance with Article 35 shall, pending the Protocol’s entry into force, have the rights and assume the obligations of a signatory under this Article.

At any time after five years from the date on which this Protocol has entered into force for a Contracting Party, that Contracting Party may give written notification to the Depository of its withdrawal from the Protocol.

Any such withdrawal shall take effect upon the expiry of one year after the date of the receipt of the notification by the Depository, or on such later date as may be specified in the notification of withdrawal.

The provisions of this Protocol shall continue to apply to Investments made by Investors in the Area of a withdrawing Contracting Party for a period of 20 years from such date of withdrawal.

All Agreements referred to in Article 37(1) to which a Contracting Party is party shall cease to be in force for that Contracting Party on the effective date of its withdrawal from this Protocol.

Basic Provisions

Division of Responsibility and Coordination: Each Contracting Party shall strive to ensure that energy efficiency policies are coordinated among all of its responsible authorities.

Domestic Programmes

Role of the ECOWAS Executive Secretariat: The ECOWAS Executive Secretariat shall endeavour to adopt, within 180 days after the entry into force of this Protocol, procedures for keeping under review and facilitating the implementation of its provisions, including reporting requirements.