Protocol on Dispute Settlement

In addition to the pan-African convention, given the non-litigious nature of African countries, as hereinbefore stated, the jurisdiction of the AfCFTA DSM should be expanded to include private actors. The reality on the ground is that the state orchestrated bureaucratic diplomatic protection may not be a feasible option for a private party whose financial interests are at stake and need to be urgently resolved. Elsewhere, there have been calls for the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award. However, it is my belief that just like calls for the establishment of a separate African Court of Justice led to, instead, the merger of the African Court of Human and Peoples’ Rights (ACHPR) and the African Court of Justice due to inter alia politics and finances, it would equally not be financially viable for the African Union to administer two courts, that is the African Commercial Court and the ACHPR. Alternatively, it may be financially sound to create a commercial division within the ACHPR or the African Court of Justice and Human and Peoples’ Rights as the case may be, to deal with commercial disputes that have commercial conflict of laws dimensions. The implication of this is that the AfCFTA DSM will still be active but only available to State Parties, whereas private actors whose home countries have made the Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights declaration can opt for the ACHPR DSM. This may act as an incentive and mount pressure on State Parties to fasten the amendment procedure of the AfCFTA DSM to expand its jurisdiction to accommodate private actors. This will give private actors an opportunity to be a major part of the dispute resolution process thus deeper economic integration. Either way, the AfCFTA liberalization agenda is achieved.

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.

The AfCFTA is thus a positive development for Africa as it seeks to advance its own interests through intra-African trade. For a region of the world that contributes to only about 3% of global trade, increasing intra-African trade is a laudable project. For example, while intra-Asia and intra-Europe trade account for 59 per cent and 69 per cent of exports respectively, intra-African trade accounts for only 18 per cent of total exports. However, despite the modest successes at improving intra-African trade through the eight African Union-recognized regional trade agreements on the continent, there are genuine apprehensions regarding the viability of the proposed AfCFTA.