Risky Business? A study of how Norfund protect investments abroad against political and regulatory risk

Abstract

This thesis examines how Norwegian companies protect foreign investments against political and regulatory risk. It does so by looking at how the Norwegian Investment Fund for Developing Countries (Norfund) protects its investments in Africa; particularly in coun-tries where Norway has no bilateral or multilateral investment treaties (BITs). According to the Norfund Act, Norfund’s purpose is to provide equity capital and other risk capital in or-der to assist in developing sustainable businesses and industry in developing countries. His-torically, when investors from developed countries such as Norway invest in developing countries in Africa, one of the main challenges is how to protect their investments against potential changes in local regulations and politics that might affect the value of their in-vestments. Investors have relied on, inter alia, investment agreements between their home government and the host country for guarantee of enforceable rights in the event of a poten-tial expropriation of their property. In the case of Norfund, Norway has not signed many BITs or investment agreements with the African countries where Norfund invests. To under-stand what a lack of a guaranteed enforceable rights mean for Norfund, I examine three pre-viously concluded investment disputes; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania; Parkerings - Compagniet AS v. Republic of Lithuania; and Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana. I relate these cases to similar situations in which Norfund can find themselves in the course of their op-erations in Africa. This thesis concludes that: Norfund as a long-term investor in Africa may not need the protections of enforceable rights guaranteed by BITs and investment promotion acts be-cause Norfund has a different mandate than a private investor, which is to help those African countries build their industries. As such, Norfund does not need guarantees of enforceable rights before making long-term investments. The current investments protection regime does not fall into its interest. Norfund does not need to protect its investments because it does not have a profit motive.