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Columnists

Would the Nigeria-Morocco gas pipeline succeed where the Trans-Saharan failed?

Twelve years later, Trans-Saharan Gas Pipeline is more of a pipe dream than a pipeline.

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In July 2009, Nigeria, Niger and Algeria came together to develop the Trans-Saharan Gas Pipeline (TSGP), what would have been at the time, one of Africa’s biggest gas infrastructure projects. The over 4000km long pipeline was to take gas from up north in Nigeria – feeding from the AKK pipeline- to Niger and all the way to Algeria in North Africa. The projected $12 billion project was set to significantly transform the face of the energy sector for the countries involved and particularly for Europe who would have received supply from Algeria.  Twelve years later, however, the project is more of a pipe dream than a pipeline.

What we see today instead is the projected construction of a Nigeria-Morocco Gas Pipeline (NMGP), which is a 5, 660km gas pipeline that would transport gas from Nigeria all the way to Morocco- even more ambitious than the failed Trans-Saharan gas pipeline. The NMGP is expected to tie in from the existing West African Gas Pipeline (WAGP) from which Nigeria feeds Ghana, Benin Republic and Togo and travel through Cote d’Ivoire, Liberia, Sierra Leone, Guinea, Guinea-Bissau, the Gambia, Senegal and Mauritania all the way to Morocco and Spain.

READ: NCDMB says Nigerian Oil and Gas Park will be completed in Q4 of 2022

It is probably safe to say that with the emergence of the NMGP, the TSGP has died a natural death, and for good reasons too. One of the major challenges of the TSGP was security. The pipeline was going to run through very volatile areas, including the Sahara desert, regions notorious as being breeding grounds for terrorist groups like Al-Qaeda and Boko Haram. This would both have left the construction workers in danger and created the possibility of pipeline vandalism by these security threats, particularly considering the fact that the pipeline was to be onshore.

Yet, there seems to be a common thread running through the failed TSGP and the proposed NMGP. The NMGP is to be an extension of the WAGP, and the challenges faced by the WAGP over the past few years are largely from security threats in the South-East and South-South of Nigeria by Niger Delta militants, who, by creating unrest in the area, made it difficult for Nigeria to fulfil its gas supply obligations to these neighbouring countries.

READ: NNPC GMD says AKK pipeline, Nigeria’s biggest gas project is 15% complete

With a pipeline running thousands of miles more into the open sea and trans-continental, the effects of shut-ins and shutdowns of the WAGP would have far-reaching consequences on supply to the NMGP. It is expected too, that any supply contracts Nigeria enters will seek to exclude such these security challenges from Force Majeure provisions, leaving the resulting liability for failure of supply to be borne by Nigeria.

These security concerns that resulted in the failure of the TSGP- which have worsened under the Buhari regime- and that pose possible challenges to the NMGP must be addressed. In 2020 alone, reports show that between January and November, there were 142 incidents of Boko Haram insurgency in North-East Nigeria, an average of 13 a month with at least 1,606 people killed and Nigeria being listed as the third-most terrorised countries in the world.

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What is interesting to see, however, is how quickly the NMGP project is moving along, already entering its second phase of front end engineering design (FEED) 5 years after it was conceptualised. Additionally, what this project does that the TNGP was very limited in achieving, is that it provides access to gas supply to eight other African countries excluding Morocco and the three countries already supplied by the WAGP.

READ: FG projects $2 billion annual revenue from Escravos Gas project

While this brings up the challenge of land and environmental permits as well as a need to get the various governments on board, as the project is an onshore-offshore combination, that challenge is somewhat obliterated. The project will also create security of gas supply within Southern Europe, and promote healthy competition, as the region is also supplied by Russia and the Trans-Adriatic pipeline which feeds from Azerbaijan. This competition is expected to reduce prices.

There are the challenges of financing such an ambitious project, and indeed the longest transnational pipeline project across the continents of Africa and Europe, but it is hoped that regional banks like the African Development Bank (AfDB), European Bank for Reconstruction and Development (EBRD) and European Investment Bank (EIB) will put their weight behind the project. It is critical however that issues like security, environmental considerations and land rights for where the pipeline runs onshore are addressed early on.

This project also makes obvious the issues that plagued the abandoned TNGP, and exposes the imminent need to push development to Northern Nigeria and eliminate terrorist settlements, as this will continue to affect economic development not just in Nigeria, but in the entire region. A project like the Ajaokuta-Kaduna-Kano (AKK) pipeline should be prioritised, as supply of gas in the North will aid significant industrialisation and development.

Caleb Adebayo is an LLM Candidate, Energy and Environmental Law at New York University School of Law. His interest lies at the intersection of Energy, Environment and Finance and he is keen on the interplay between Law, Policy and Energy Markets. Prior to taking up his LLM, he worked on the Energy team of a tier 1 Nigerian law firm. A nominee for The Future Awards Prize for Lawyers, he has written widely on the subject of Energy and Environmental Law. He is also a member of the New York City Bar Energy Subcommittee

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Columnists

Tasks before the AfCFTA dispute settlement body

The success of the AfCFTA will depend largely on the willingness of the member states to adhere to the agreement.

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The Dispute Settlement Body (DSB) of the African Continental Free Trade Area (AfCFTA) held its inaugural meeting on 26 April 2021 at the AfCFTA Secretariat in Accra Ghana. The DSB is composed of the representatives of the State Parties and shall have the power to establish Dispute Settlement Panels and an Appellate Body responsible for settlement of disputes between the member States.

The mandate of the DSB also extends to adopting the reports of the Panels and Appeal Body as well as monitoring and ensuring the implementation of the ensuing decisions. In carrying out its mandates, the DSB will work with the AfCFTA Secretariat while maintaining its independence in the area of dispute settlement.

The inaugural meeting signals the readiness of the AfCFTA dispute settlement infrastructure to take up any disputes that may arise in the course of trading amongst the member States. Disputes are inevitable in any free trade area and when any such disputes arise under the AfCFTA, the resolution is to be in line with the Protocol on Rules and Procedures on the Settlement of Disputes which forms part of Phase I Negotiation.

Recognizing its importance to the success of the trade deal itself, the Protocol proclaims that “the dispute settlement mechanism of the AfCFTA is a central element in providing security and predictability of the system” and “shall preserve the rights and obligations of State Parties under the Agreement and clarify the existing provisions of the Agreement in accordance with customary rules of interpretation of public international law.”

Though inspired by the World Trade Organization (WTO)’s dispute settlement architecture, the AfCFTA framework is meant to address some of the lapses in the WTO. In an exclusive opinion piece for “The Africa Report”, Mr Wamkele Mene, Secretary-General of the AfCFTA, explained how the AfCFTA will work in order to avoid the pitfalls of other trading blocs. As noted in the report:

The WTO’s tribunal of final instance for global trade disputes, the Appellate Body, has been reduced to irrelevance over disagreements on its composition. The paralysis of both the WTO’s negotiating and dispute settlement arms means that trade disputes between China and the United States, two of the WTO’s largest members, have flared into open hostility.”

Drawing from the WTO experience, the African States in negotiating the free trade treaty cherry-picked the aspects of the WTO’s dispute settlement system that have worked and jettisoned the problematic parts.

At the Virtual Press Conference held on 04 May 2021 to update the public on the status of the implementation of the AfCFTA and the progress made so far, the AfCFTA Secretary-General re-echoed the importance of the dispute settlement mechanism to the success of the AfCFTA while answering questions from journalists across Africa. Commenting on the milestone achievement recorded with the inaugural meeting of the DSB, he noted that:

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“The dispute settlement is really the mechanism and is at the heart of the African Continental Free Trade Area. And it is at the heart of what we mean by a rule-based trading system. And at the heart of what we mean by market certainty and predictability. For the first time on the African continent, there is a dispute settlement body that will have oversight over all the disputes that arise under the agreement whether there are investments related, trade in goods, trade in services, market access related disputes. This body will have oversight over all of that.”

All eyes are now on the AfCFTA DSB as it shoulders the task of ensuring that disputes between member States are resolved in an efficient, transparent, fair and impartial manner. The starting point is to ensure that persons appointed to be members of the Dispute Settlement Panels and Appellate Body have the expertise and experience in the subject matter of the dispute and are chosen strictly on the basis of objectivity.

There is an even more important corresponding duty on the State Parties when nominating persons to be included on the indicative list or roster of individuals to serve as Panelists to ensure that nomination is based on merit and proven expertise on the subject matter. The member States should eschew any nepotistic or tribal considerations in nominating State representatives. The Nigerian government should resist the temptation to premise its nominations on Federal Character or other ethnic or religious considerations as we’ve seen in recent appointments.

Recent events such as the reported discriminatory measures against Nigerian traders in Ghana, the closure of the Nigerian border with Benin Republic, the Xenophobic attacks in South Africa on African businesses and the retaliatory attack on South African-owned businesses present examples of the kind of disputes that may come up before the AfCFTA DSB assuming that similar issues arise in the future. Others may include disputes over conflicting public policies, tariffs and non-tariff barriers, rules of origin, dumping, regulatory excessiveness, standardization, trans-shipment, taxation, market access, and consumer protection etc.

The AfCFTA dispute settlement mechanism is restricted to State-to-State disputes. The treaty is silent on the mechanism for the resolution of disputes between private individuals. Notwithstanding this limitation, the private sector participants such as the SMEs and other business entities will be able to petition their governments to implement the rights and obligations set out in the agreement establishing the AfCFTA. That way, the rights of the private sector can be enforced using the State instrument.

For instance, in a situation where citizens of a member State are being subjected to discriminatory measures in another AfCFTA member country, the affected country may decide to refer the case to the DSB on behalf of its citizens, after exhausting the amicable settlement options such as Good Offices, Consultations, Conciliation and Mediation. It is not yet clear what yardstick will guide such referrals or to what extent such anti-free-trade measures will impact on the citizens of the member state before it decides to challenge the infractions at the DSB. Whatever the case, where a member state fails to protect the rights of its citizens, the affected traders may seek other legal remedies available under the national laws or within any bilateral and multilateral instruments applicable to the disputes.

In relation to investment disputes, the ongoing negotiation of the AfCFTA Protocol on Investment is meant to clarify the uncertainty around the framework for resolving investor-state disputes. The member states in choosing to resolve their disputes within the AfCFTA framework should be aware of the fork-in-road provision under article 3(4) of the Protocol, which precludes a State Party who has invoked the dispute settlement procedure under the Protocol with regards to a specific matter from invoking another forum for dispute settlement on the same matter.  Another area of interest is the enforcement of decisions reached under the AfCFTA dispute settlement process.

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The effectiveness of a dispute resolution mechanism is often measured with the 3 E’s which are efficiency, expertise, and enforceability. Challenges will likely arise in relation to compliance with decisions under the AfCFTA as we have seen under the WTO and other regional trade treaties.  It is hoped that the desire to enhance investors’ confidence and the spirit of amity will spur the AfCFTA members to comply with decisions made by the dispute settlement bodies. In the end, the success of the AfCFTA will depend largely on the willingness of the member states to adhere to the agreement and to eschew any form of self-help when they perceive any breach of the trade deal.

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Insurance Recapitalization: The quest for efficiency

To tap into this, however, would require players to come up with innovative products.

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Recapitalisation: 26 firms get NAICOM's approval

As the phase II deadline for the recapitalization of the Nigerian Insurance Industry draws nearer, cracks are beginning to emerge from the wall. The most recent being the National Insurance Commission’s (NAICOM) revocation of UNIC Insurance Plc’s license with effect from the 25 March 2020. Consequently, the firm was handed over to a receiver/ liquidator to ensure a seamless liquidation process.

According to Mr. Sunday Thomas, the Insurance Commissioner, the company currently manifests every symptom of a business that would not survive the recent wave, and all efforts to resuscitate it are being frustrated by its owner.

Over the years, especially since the last recapitalization in 2007, the industry has been engulfed in a brawl between the laggards and the high-fliers. While the underperforming entities constantly have issues of delay in claims payment, which has created distrust for the general insurance proposition in Nigeria, the “high-fliers” have continued to battle that narrative through increasing levels of efficiency.

READ: Insurance companies to report over N100 billion in claims in 2020

NAICOM has also been coming up with policies to ensure seamless insurance delivery. Recall that in 2019, NAICOM instituted measures to ensure that players in the industry make prompt claims and benefits settlement a priority as part of its quest to restore the eroding public trust for Insurance in Nigeria.

Since the policy of recapitalization was proposed by the regulator, activities have intensified in the industry as players seek to meet the stated deadlines. For instance, we saw a flurry of bonus issuance of shares in December 2020, as firms sought to meet the Phase I deadline by converting retained earnings to paid-up capital as directed by NAICOM. This followed in the track of the series of takeovers that were announced in late 2019 and early 2020. We note that beyond improving underwriting capacity in the industry, the recapitalization exercise would eliminate operationally weak firms that have been a spanner in the wheel of the industry over time.

READ: Econet founder Strive Masiyiwa secures $100m investment in Nigeria data center

In our view, there is enormous potential for the players in the insurance industry in Nigeria given its untapped potentials as insurance penetration remains significantly low. To tap into this, however, would require players to come up with innovative products.

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One of such innovative ideas in our view is developing products targeted at millennials and Gen Z, who are currently excluded from the insurance net in Nigeria; despite constituting a sizeable number of Nigeria’s population. Opportunities in the insurance industry are widely unexplored and a combination of favourable policies from NAICOM and efficient delivery by surviving players can help open more untapped areas.


CSL Stockbrokers Limited, Lagos (CSLS) is a wholly owned subsidiary of FCMB Group Plc and is regulated by the Securities and Exchange Commission, Nigeria. CSLS is a member of the Nigerian Stock Exchange.

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