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tralac Newsletter • Issue 12 • July 2019
Dispute settlement in trade agreements
This month’s tralac Newsletter focuses on the settlement of trade disputes, emphasizing recent developments in Africa. We do so because this topic has gained in importance and sheds light on the benefits of rules-based trade governance. Certainty about the interpretation and implementation of trade agreements and the availability of remedies obviously bring more predictability and extra legitimacy.

Our discussion of the Dispute Settlement Protocol of the African Continental Free Trade Agreement (AfCFTA) confirms that the Founders shared the same belief. One of the objectives in the AfCFTA Agreement is to “establish a mechanism for the settlement of disputes concerning… rights and obligations”. However, the jury is still out as to whether this system will in fact be used. Only the State Parties may bring applications under this Protocol, which has been adopted in Kigali in March 2018. But, as is known, African States never litigate against each other over trade issues.

That brings us to a new trend, the increase in trade-related cases before domestic courts. The private sector is increasingly prepared to pursue judicial remedies in such disputes. National Courts allow them standing when the law of the land is at stake. We report on some of these cases and show that more and more service-related disputes are now being decided. We report on the Malawi Mobile judgment of the COMESA Court of Justice (also involving a private litigant) and the ruling in Namibia on the powers of the national communications regulator.

The latter judgment discusses important administrative law principles. They are related to what is often called due process requirements in trade law instruments. In some ways these disputes involve more familiar disciplines (compared to trade in goods disputes) such as administrative justice, Constitutional Law and the principles of statutory interpretation. There may also be separation of powers challenges.

We have previously written about design flaws in the legal instruments of the RECs and the political challenges faced by regional Courts and Tribunals. The demise of the SADC Tribunal in 2011 was a significant low-water mark. The SADC Summit unanimously decided to abolish that Tribunal after it had ruled against Zimbabwe when it expropriated private land without compensation. The SADC Summit then adopted a new Protocol for the SADC Tribunal (which is not yet in force), without allowing private parties standing before this forum.

Domestic Courts have since ruled on the consequences of that SADC Summit decision and the fact that citizens’ right of access to justice has been curtailed. They are critical of their Governments’ participation in this development and want remedial action to be taken. One of the blogs in this Newsletter discusses the recent Judgment of the High Court of Tanzania to this effect.

These disputes raise important questions about the scope of judicial review over international affairs and the actions of regional bodies. The Tanzanian judgment suggests certain remedies, which differ to some extent from those ordered earlier by the South African Constitutional Court when it ruled on the same issue. The South African Constitutional Court concluded that the participation of the former South African President in that fateful SADC Summit decision was irrational and invalid.

These cases involve ground-breaking jurisprudential issues, but they are also indicative of the weaknesses in Africa’s regional integration endeavours. Had the legal instruments of the RECs been designed to clarify and bolster Community Law and to provide for institutions to protect the integrity of the regimes in question, national Courts would not have been involved in disputes about the lawfulness of Member States’ acts on the international plane. REC Secretariats would have filed applications in regional Courts to ensure that the founding instruments are protected and enforced. This does not happen; the Secretariats are not allowed to do so.

Member States are apparently still of the belief that their “sovereignty” is paramount. This reasoning is flawed; international trade and integration cannot succeed if a particular Member State can flaunt the rules every time it wants to pursue domestic benefits. It shows that essential building block are missing. We have previously analyzed sovereignty as a legal concept, arguing that the signing and ratification of international agreements are acts of sovereignty.

In one of the cases discussed in a new Trade Brief on the ruling by the EAC Court of Justice on excise duties imposed by the Ugandan Revenue Authority, it is explicitly stated that the Parties to an international Agreement can never invoke their national law (or Constitutions) as justifications for violating their international obligations.

That brings us to our discussion of the concept of Community Law. We offer a detailed discussion of the ruling in this case – a well-reasoned judgment and analysis of all relevant EAC legal instruments. It shows how Governments and national legislatures ignore the dictates of the very Community Law which they have ratified and incorporated into their municipal legal systems.

We are aware of the difficulties faced by Africa’s regional integration arrangements; when States at very different levels of economic development become parties to the same trade agreements. We recognize that they face unique challenges. The RECs cannot be compared to the European Union, from which the Community Law vocabulary has been borrowed. But we are also making the case that when exceptions to mutually agreed rules need to be included (as happens in all such agreements) they should be formulated in clear terms, be conditional and justiciable.

This Newsletter discusses one recent case dealing with a WTO dispute. It deals with the dispute between Ukraine and Russia about the national security exception in Article XXI GATT. This is the first detailed ruling on this provision. It comes at a time when the WTO is in a crisis and the Trump administration has asserted a right to invoke national security as a ground for increasing tariffs on goods beyond its commitments. This judgment makes several important points about the interpretation and application of Article XXI. We list them.

We look forward to your feedback.

The tralac team
AfCFTA Update
The founding Agreement on the African Continental Free Trade Area (AfCFTA), as well as the Protocols on Trade in Goods, Trade in Services and Dispute Settlement. were adopted and opened for signature on 21 March 2018 at an Extraordinary Summit of the African Union held in Kigali, Rwanda.

The AfCFTA entered into force on 30 May 2019, thirty days after having received the twenty-second instrument of ratification on 29 April 2019, in conformity with legal provisions. The number of ratifications now stands at 27, and all AU member states with the exception of Eritrea have signed the Agreement.

View tralac’s AfCFTA Ratification barometer for the current status of ratification.

The Operational Phase of the AfCFTA Agreement was launched on 7 July 2019 in Niamey, Niger at the 12th Extraordinary AU Summit. Ghana has been confirmed by the Heads of State and Government as the host of the secretariat of the AfCFTA, having prevailed over six other countries that had also expressed interest in hosting it.

Read more in a tralacBlog: Does the African Continental Free Trade Area mean business?

tralacBlog is a forum to share and engage with the views of tralac researchers and Associates, as well as guest contributors, on pressing regional integration and trade policy issues affecting African countries in order to encourage relevant, topic-related discussion and debate.

Dispute Settlement in the African Continental Free Trade Area
Gerhard Erasmus
An important Comesa Court qualifier for natural and legal persons approaching the Court
Dawid van Wyk

Also on the tralacBlog

New Publications
The first Dispute under the SADC EPA has been declared

SACU recently imposed a safeguard duty on frozen bone-in chicken portions imported from the EU. The EU Commission responded (after prior discussions) by taking the first step required for declaring an official dispute. This paper takes a look at the substantive arguments raised in this matter, the procedures applicable to dispute settlement under the SADC EPA, and what the latest development reveals about the nature of this Agreement.

The Development of REC Community Law: The EAC Court of Justice makes an important Contribution

The founding instruments of some African Regional Economic Communities (RECs) proclaim that they are based on their own systems of Community Law. The recent judgment of the Court of Justice of the East African Community (EAC) in British American Tobacco (U) Ltd (Applicant) v The Attorney General of Uganda (Respondent) of 26 March 2019 provides a useful context for discussing the EAC as a specific example.

Recent Events

tralac’s Women in Trade Governance (WiTG) Development Programme – Cape Town, 8-12 July 2019

tralac’s inaugural Women in Trade Governance development programme residential took place in Cape Town this week. Twelve future leaders in trade governance from across the continent gathered to network, learn and reflect. These 12 women will form the core of tralac’s Women in Trade Governance network.

Over the course of the week, participants acquired new technical knowledge, shared experiences on trade, worked on honing their communication skills, and connected with like-minded women from their own and other countries. Read more...

tralac-Sidley AfCFTA Breakfast Event – Geneva, 4 July 2019

With the launch of the AfCFTA in Niamey on July 7, Sidley Austin’s Pro bono program and Trade Law Centre (tralac) co-organised a breakfast discussion at the margins of the A4T Global Review on how to make the AfCFTA a success.

The discussion focused on rules of origin, the role of the private sector, persistent non-tariff barriers, the importance of services, tariffs, industrial policy, and trade facilitation. For the AfCFTA to truly deliver, much work remains to be done, and there are significant challenges given the scale of ambition. At the same time, there is strong political will, support from development partners, and much that can be built upon and learned off the platforms of Africa's regional economic communities as well as the WTO.

UNCTAD’s Secretary General Dr. Mukhisa Kituyi delivered the opening address. Other key speakers included Patrick Low, tralac Advisory Board member and former Chief Economist at the WTO; Rajesh Aggarwal, Director, International Trade Centre; Frank Matsaert, TradeMark East Africa CEO; and Malawi’s Ambassador to the WTO, H.E. Robert Salama. Read more...

Workshop on e-commerce, trade and the digital economy – Cape Town, 26-27 June 2019

tralac, with the financial support of the Australian Department of Foreign Affairs and Trade, hosted a policy workshop on e-commerce, trade and the digital economy. The overarching aim was to demystify e-commerce and create a pragmatic ‘to-do list’ to address governance gaps to work towards developmental gains.

The presenters and participants emphasised the need for African countries to embrace digitalisation. They noted that to realise the potential benefits, careful calibration of policy and regulation is required. Read more...

AGOA Business Connector
The AGOA Business Connector is a new online facility on and aims to help enable trade and business connections between producers, exporters, importers, sourcing agents, trade-related service suppliers including trade finance, logistics and related services, support organisations such as business chambers and exporter associations and others, both from sub-Saharan African AGOA beneficiary countries and the United States. Registered users are also able to list their businesses or professional trade-related service on the platform, and to communicate with other listings through a messaging facility.
New: Searchable United States tariff database | AGOA products list

The AGOA products database on has been enhanced through the inclusion of a simplified (yet full) US tariff database, providing six relevant searchable fields: tariff code (HTS), product description, AGOA status (eligibility), GSP status, standard tariff (MFN basis) as well as the non-MFN tariff (when goods enter the US from a non-WTO Member State without claim of any special preferences). Click here.
AGOA guides and info-graphics
tralac has produced a number of info-graphic type brochures (see section on / Exporter Toolkit) covering a range of AGOA-related topics, including on AGOA’s legal provisions with regard to eligibility and annual/out of cycle reviews, rules of origin, AGOA FAQs, sector-focused brochures (textiles and clothing, agriculture), as well as national AGOA brochures relating to Botswana, Ethiopia, Ghana, Kenya, Lesotho, Madagascar, Mauritius, Namibia, Nigeria, South Africa and Tanzania.
AGOA Key Stats
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