scholarly journals Dispute Settlement Under the African Continental Free Trade Area Agreement: A Preliminary Assessment

2019 ◽  
Author(s):  
Olabisi D. Akinkugbe
2021 ◽  
Vol 25 ◽  
Author(s):  
Mmiselo Freedom Qumba

ABSTRACT Over the past few years, the international Investor-State Dispute Settlement (ISDS) mechanisms have been confronted with an unprecedented level of scrutiny, and the system's legitimacy is being questioned by both developed and developing countries alike. This article presents a proposal for the adoption of the old customary international law rule of exhaustion of local remedies in the upcoming Investment Protocol of the African Contin en tal Free Trade Agreement (AfCFTA). It observes that the ISDS mechanism that will be developed under the AfCFTA framework is likely to be shaped by the legitimacy crisis in investment treaty arbitration and ongoing global debates about the reform of the ISDS mechanisms. In particular, the ISDS debate in the African region will continue to characterise and potentially derail the negotiations of the AfCFTA Protocol on Investment. The main contention is that adopting the exhaustion of local remedies under the AfCFTA Protocol on Investment before recourse is had to the ISDS is arguably the single reform with the greatest potential to foster a balanced investment dispute resolution mechanism and reduce political opposition to ISDS while still providing investors with access to ISDS when domestic remedies are inadequate. The article finally proposes a drafting suggestion for the adoption of the exhaustion of local remedies rule into the ISDS provision of the AfCFTA Protocol on Investment. Keywords: Exhaustion of local remedies; African Continental Free Trade Area; Investment Protocol; ISDS; African courts.


2020 ◽  
Vol 12 (3-4) ◽  
pp. 242-265
Author(s):  
Obert Bore

Abstract African regional trade agreements often provide for dispute settlement mechanisms and procedures that should be followed. They also establish judicial bodies or tribunals for the respective African Regional Economic Communities. Despite the existence of judicial bodies, African governments do not usually litigate against each other on trade-related disputes. However, the few cases adjudicated by the regional judicial bodies are insightful of how contemporary trade disputes shape the development of community law. With reference to case law, this article presents lessons from regional judicial bodies. Notwithstanding the lessons learnt, there are challenges too. In response to the challenges, new developments on the continent, adopted through the African Continental Free Trade Area signal a move towards respecting rules-based trade through ensuring legal predictability and certainty for trade dispute settlement. Thus, this article will also provide a detailed analysis of the dispute settlement mechanism under the African Continental Free Trade Area, a system akin to World Trade Organisation.


2020 ◽  
Vol 28 (Supplement) ◽  
pp. 138-158
Author(s):  
Olabisi D. Akinkugbe

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Given the discontent of member states and the limited impact that the existing highly legalised trade dispute settlement mechanisms have had on regional economic integration in Africa, this article undertakes a preliminary critical assessment of the AfCFTA Dispute Settlement Mechanism (DSM). The article situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African states with highly legalised dispute settlement systems and similar WTO-styled DSMs among other shortcomings. Notwithstanding the transplantation of the WTO-styled DSM and the ineffectiveness of previous similar attempts in Africa, the article argues that the Consultation Phase offers the AfCFTA member states a realistic chance of engaging with the DSM. In conclusion, the article highlights other factors such as private sector involvement, the strategic operationalisation of the DSM, and geopolitical and power dynamics as critical to the success of the dispute settlement system.


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