Intellectual Property Protection: An Untapped Assurance For Foreign Direct Investment In Nigeria By Garrick Nosa John

By: lawyard staff | Nov 17, 2017 

ABSTRACT

While there may be different definitions of intellectual property, the need for its protection is one that enjoys universal acceptance. It is also of universal acceptance that foreign investment plays an integral role in the economic growth and sustainability of a country. Globalization has necessitated economic interaction between and among nations on bilateral and multilateral levels respectively. Nigeria, like many other nations, benefits from this economic interplay of resources through her diverse modes and channels for investment. This article will be restricted to one of such modes of investment – Foreign Direct Investment – as it purports to project intellectual property protection as a viable form of assurance for foreign investors seeking to invest in the Nigerian market.

1.0 INTRODUCTION

The Nigerian foreign investment framework is widely regarded as liberal in comparison to countries in Africa and other parts of the world.[1] This view is largely supported by the existing assurances and incentives made available to foreign investors by the Nigerian government. This gesture is geared towards portraying Nigeria as a country with legal and economic frameworks favourable to potential foreign investors. This brings to the fore the subject of this article; whether the protection of intellectual property rights is a viable assurance mechanism for foreign investment. If the answer is in the affirmative, then, are the current standards of intellectual property rights protection in Nigeria supportive of this development? An attempt to proffer adequate answers to these questions would require a careful examination of the extant laws and regulations relevant to this discourse, coupled with an analysis of the current intellectual property rights protection mechanisms in Nigeria today.
Assurances, in simple terms, are promises made or guarantees given by the Nigerian government, through the appropriate agencies, to prospective foreign investors. These assurances are geared towards encouraging foreigners to invest their resources in the Nigerian economy. The extant assurances and guarantees given to foreign investors in Nigeria, as reflected in the Nigerian Investment Promotion Act, are as follows:[2]
A foreigner is free to do business either alone or in partnership with any other person in any sector not contained in the negative list[3]
A foreign investor is guaranteed total repatriation of profits (net of taxes) and remittance of proceeds (net of taxes) and other obligations in the event of sale or liquidation of the enterprise embarked upon in Nigeria
A foreign investor enjoys unconditional transferability of funds through an authorized dealer[4], in freely convertible currency
A foreigner’s business enterprise is protected against nationalization or expropriation, and is guaranteed prompt and adequate compensation in the unlikely event of nationalization
A foreign investor is afforded free capital importation on the condition that it is done through an authorized dealer
A foreign investor is assured of an effective dispute resolution mechanism that is not controlled by local courts but based on applicable international and investment treaties

The above listed assurances currently employed by the Nigerian government are laudable, considering the effect they have had so far in attracting investors to the Nigerian economy. However, given the pace at which the economies of the world are currently expanding, following globalization and the surge in business ideas, there exist more opportunities for business growth and an increased level of competition for foreign investment by the international community. While profit maximization from these business ideas is paramount for business owners, a slice of the pie in the form of foreign investment should be a source of motivation for the international community, including Nigeria, to push beyond the norm in creating an environment economically suitable to the foreign investor.

Ideas, which are products of the intellect, ultimately lead to the establishment of businesses. Business owners are potential investors who choose to invest in any market in the world as they deem fit. They seek to introduce the products of their intellect to foreign markets, not just to get financial returns, but to gain recognition and wide acceptance for the businesses they create. Thus, business owners are not solely concerned with the ease of doing business in a chosen country; equally important to them is the assurance that if they decide to actively participate in the chosen market, the rights relating to their business ideas will be protected. Hence, the separation of intellectual property and business creation becomes an impossible endeavor.

Consequently, the Nigerian government should as a matter of importance implement effective measures to ensure that these rights are not only protected, but seen to be manifestly protected. This would assuage concerns entertained by potential investors, and consequently, increase the inflow of much needed foreign investments into Nigeria.

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