The first reason concerns the need to draw attention to the bigger, global picture and to developments suggesting that the values underpinning the present multilateral order (not only rules-based international trade) are under attack. We take a look at the looming crisis in the dispute settlement system of the WTO. The WTO’s Appellate Body will have only three judges (it is designed to have seven) on its roster by the end of this month, after the United States had formally objected in late August to the reappointment for a second term of a current Appellate Body member. What lies behind Washington’s strategy? What happens next? And what are the broader implications?

Another reason for focusing on dispute settlement in trade relations flows from the need to be reminded, once again, about the benefits which certainty and predictability bring. The rights of private parties (whether in the form of importers and exporters, investors, service providers or owners of intellectual property) and of State Parties, need substantive a well as due process protection. They want to be treated fairly when doing business across borders and investing in foreign jurisdictions. When private parties are confronted by penalties (see the tralacBlog on the MTN case and its difficulties in Nigeria), restrictions, or measures imposed by foreign governments, they should have access to an impartial tribunal or court of law; which can rule on the validity and appropriateness of such measures. Restrictions and regulatory measures should be benchmarked against mutually agreed rules pertaining to justifiable exceptions, which apply to all.

Our blog on an application presently before South African Courts to set aside the whole AGOA regime deals with the facts of that case, the demands of a local industry for protection against imported poultry (which the applicant claims is being dumped in the South African market), and the danger of judicial overreach regarding sensitive public policy matters.

Investors often enjoy special remedies, such as those provided by Bilateral Investment Treaties or investment protection provisions in Free Trade Agreements. They may also be protected by the law of the land and the national constitution. Our blog on investment protection in SADC refers to the latest developments in this area.

We conclude with a blog on another question: are alternative dispute settlement arrangements available for the settlement of disputes involving trade related issues? What are they and how do they function? Are there examples of this kind?

This Newsletter does not provide an exhaustive picture. tralac has undertaken research on several other aspects of dispute settlement, such as the trade defence mechanisms in the SADC-EU Economic Partnership Agreement (SADC EPA), which entered provisionally into force in October 2016. We will continue to monitor developments around the settlement of disputes involving trade and regional integration, in particular in Africa. Improvements in this area are vital for securing rules-based trade governance, within and between States.

We look forward to your feedback.

Dispute Settlement in Trade Relations

Q: How are the rights of private parties protected in international trade agreements?

A: International agreements traditionally provide for the protection of the rights of State Parties. How do private parties deal with the fact that, traditionally, they do not have standing before international courts? They can request their states of nationality to act on their behalf and litigate in international dispute settlement bodies (as many WTO Members do) and to afford them diplomatic protection. However, diplomatic protection is not an enforceable right.

Some of the rights and interest of private parties can be protected in the special case of trade remedies (anti-dumping and countervailing measures) and safeguards. This happens through the principles and procedures of the WTO’s Anti-Dumping Agreement, Subsidies and Countervailing Measures Agreement, and the Safeguards Agreement. Affected private parties are entitled to be heard when requests for trade remedies and safeguards are investigated, and they may lodge review applications before domestic courts or tribunals. Multilateral, regional and national legal disciplines apply to such investigations. However, African states do not, as a rule, provide for domestic trade remedy investigations and proceedings. (Only South Africa and Egypt have WTO compatible national trade remedy regimes in place.) This leaves most African firms at a disadvantage.

Q: How is dispute settlement provided for in Africa’s regional economic communities?

A: When regional integration has grown to the point where effective supra-national institutions (including regional courts and tribunals) have been established and community law has been developed, private parties (including legal persons) are granted locus standi rights and special remedies, as happens in the European Union. African regional integration has not developed to this level. African States are protective of their sovereignty. And they do not litigate against each other over trade issues. It means African governments will not act on behalf of private parties (under their jurisdiction) and pursue claims against other State Parties about unlawful trade measures.

Access a wide selection of web resources related to AGOA, including national chambers of commerce, export promotion agencies, development and finance agencies, regulatory authorities and trade resources. Click on the various section headings for specific web links.

Other resources include information on AGOA product eligibility, country eligibility status, rules of origin (general and for apparel).