WTO

In my view, one simple and safe guiding principle for Caribbean states could be whether the proposals on the table advance or diminish the protections guaranteed by the rule of law.  These protections include: supremacy of law, equality, accountability, fairness, separation of powers, participation in decision-making, certainty, avoidance of arbitrariness and procedural and legal transparency.  Using this as the guiding principle, small states can meaningfully contribute to the debate.

The lack of participation of African states in the WTO dispute settlement system is indicative to a certain extent of the discomfort that most African states feel vis-à-vis the said system. A future reform of the DSU must necessarily include procedural and substantive aspects to render dispute settlement more flexible for African countries.

At the heart of the WTO system is the commitment to the foundational principles of MFN and national treatment. But in a world predicated upon national interest and economic power, the most powerful may not consider multilateral rule-based commitments to be optimal to the achievement of their national interests. One feature of the WTO dispute settlement system is that every Member of the WTO is entitled to have their dispute determined under agreed rules. This is a basic feature of rules-based dispute settlement. The rules, impartially applied, have no regard to the economic power of the parties. The settlement of disputes by recourse to rules of general application yield outcomes that do not depend upon which member is more powerful.

This week, we offer an exciting treat to followers of the Afronomicslaw Blog! We are bringing the discussions on reform at the World Trade Organization (WTO) to you, from a unique “Global South” perspective. As WTO Members struggle to find solutions to the impasse in the selection process for appointing Appellate Body Members, and as concerns abound about the ability of the WTO to successfully navigate new issues confronting the multilateral trading system, I approached the editors of Afronomicslaw with the idea of dedicating a symposium to views of developing countries on the topic of WTO reform.  Thankfully, they were receptive, and I am proud to count among this week’s contributors: a former Appellate Body Member, WTO law academics, and practitioners hailing from Africa, India and the Caribbean.

One would be justified in thinking that AU member states have intentionally created a court which they consciously know they would hardly use given the inertia identified above. If the reforms that would extend standing to private parties are not undertaken, there is little guarantee that Member States will suddenly change their habits. Assuming for once that they trigger the mechanism, it is also very likely that, consistent with their practice for political solutions to legal problems, they would not proceed beyond the consultation and good offices stages provided in Articles 7 and 8 of the Dispute Settlement Protocol.

This new Continental Free Trade bloc is now entrusted with the competence to engage other FTA Blocs such as the European Union (EU), North American Free Trade Area (NAFTA) and Association of South Eastern Nations (ASEAN), on trade policy from an Afri-Centric perspective - the essence of Afri-Multilateralism. Hitherto, the various national governments across the Continent had engaged global trade from the prism of nationalistic interests but this new paradigm affords Africa, for the first time, an opportunity to engage on trans-Sahara, trans-Atlantic and trans-Pacific negotiations on an equal footing, and not under the auspices of 'emerging countries' or LDCs.

While the establishment of a free trade area is categorically provided for as one of precursor stages to the AEC, it is appears to have been envisioned as being established primarily at the regional level (article 2 (d)), and not necessarily at the continental level. This was very much in line with the strategy to build the AEC through the RECs. The AEC Treaty did not get into the modalities of the establishment of the prospective free trade area, neither did it mention a further protocol in that regard. Whether this omission was deliberate, is subject to speculation, but perhaps it may have been based on the belief that RECs would be the drivers of free trade areas as opposed to a focused continental framework or mechanism.

With the purpose to bring together scholars and scholarship that highlights original and innovative thinking in IEL as it pertains to the African continent, the idea was to follow up with the existing tradition that consists in engaging with new scholarship and research on the continent’s contributions to, and involvement with IEL. This task proved at the same time challenging and quite rewarding. The call attracted responses of high calibres as reflected by the quality and quantity of abstracts received, as well as the global representation of the submissions.

The objective of the African International Economic Law Network (AfIELN) is “to serve as a forum for the research, study and exchange of ideas in the field of international economic law in Africa and beyond”. Established in 2008, the AfIELN (initially AfSIEL) is now in its 11th year, although it was not until 2011 when it had its first conference in South Africa. It was then that the name AfIELN was formally adopted.