It is accepted that legal doctrine is a normative discipline, which is not only describing and systematising norms, but also predominantly a discipline which takes normative positions and makes choices among values and interests. Consequently, the quest to find “better law” by adopting certain interpretative or normative positions often leads to elements external to law and legal doctrine such as philosophy, morals, history, sociology, economy, and politics. Hence, looking for better law involves empirical research particularly as better, in the context of this post, refers to a historical and sociological perspective on the balancing of the Eurocentric make-up of international law. Thus, the teaching of precolonial African trade usages should be explicitly embedded into the public international law (and international trade law) curriculum in Nigerian universities. This has already been done in international relations programmes in some Nigerian universities.
This blog post focuses on the Agreement for the establishment of the African Continental Free Trade Area (AfCFTA) and the implications for the evolution of lex mercatoria in Africa. This blog post is primarily based on a recent paper by Chisa Onyejekwe and Eghosa Ekhator titled ‘AfCFTA and Lex Mercatoria: Reconceptualizing International Trade Law in Africa’. The paper argues that some of the major innovations embedded in the AfCFTA (such as variable geometry and dispute settlement amongst others) form the crux of an emerging African practice of lex mercatoria. Consequently, the creation of AfCFTA has engendered what can be termed as an emerging concept of ‘Lex Mercatoria Africana’. In the context of the AfCFTA, this is exemplified by the notion that the AfCFTA explicitly promotes African trade principles.
By bringing forward this interlegal sensibility, ALIC invites the investor to think of their own best interest in broad term and to take the time to understand already-existing, pluralist socio-legal expectations and practices. It also implicitly reminds the investor to take the time to build a relationship with local communities that is buttressed by an iterative understanding of fairness (a core tenet of commercial law). Without such a relationship and appropriate due diligence, ALIC in effect recommends to the investor and the local community to not pursue the deal – no one benefits from a land transaction that is only made possible by disrupting local people’s lives or dislocating them from their homeland.