AfCFTA

May, 2019

The book is centered on the thesis that "Regional Developmentalism is the most suitable conceptual framework to support the effective establishment of an African Economic Community.” The African Economic Community is the continental trading system contemplated by the 1991 Abuja Treaty. Some have argued the African Continental Free Trade Agreement fulfills the free trade integration stage contemplated by the Abuja Treaty.

The call for an open, rules-based approach to investment facilitation at the multilateral level is informed by a tipping point in the international investment arena. As discussed below, this paradigm shift and various precedental challenges have made it imperative to seek international investment policy coherence.

For the AfCFTA to succeed will require more than its regulatory framework; a supporting framework is also required and this is found in what Douglass North has termed “mental models”. Mental models are the necessary norms and beliefs of policy makers - their perceptions of the world around them.

It is crucial to incorporate both a balanced approach and a human rights perspective into the negotiations on intellectual property in the context of the AfCFTA. In this regard, it should be noted that the TRIPS Agreement gives countries considerable flexibility with regard to how they can choose to protect plants and new plant varieties because Article 27(3)(b) of the TRIPS Agreement permits countries to exclude plants from patentability although it requires them to provide protection for plant varieties either by patents or by an effective sui generis system or by any combination thereof.

This symposium, comprising six contributions, presents case studies of the existing plant variety protection systems in Africa, complexities around introducing new systems as well as the interlinkages between plant variety protection, human rights and traditional knowledge.

The AfCFTA-DSM will be nestled in a culture of African States that does no pursue formal settlement of trade disputes before judicial or quasi-judicial bodies. Given the dearth of core economic integration disputes before the African regional economic community courts; and, the failure of previous WTO-like DSM transplanted at the regional level, what potential if any, has the AfCFTA-DSM to chart a new course? Similarly, what can we garner about the culture of African States towards trade disputes?

The settlement of disputes under the AfCFTA will be governed by the Protocol on Rules and Procedures of the Settlement of Disputes which provides for the establishment of Dispute Settlement Body with authority to establish panels to receive and determine interstate trade disputes. Thus, individuals do not have direct access to the DSP. Therefore, this raises the question: Is this mechanism attractive and would states use it? It is premature to predict whether or not states will use it.

With 22 ratifications now guaranteed, the African Continental Free Trade Agreement, (AfCFTA), will soon enter into force. Once in force, its efficacy will depend on the political will to implement it as well as its enforcement mechanisms. The AfCFTA’s Protocol on Rules and Procedures on the Settlement of Disputes establishes a WTO-like Dispute Settlement Mechanism with Panels and an Appellate Body.

This article contends that premised on being Africa’s major trading partners, economies such as the US, the EU, and China are likely to experience trade diversion when the AfCFTA comes into force. As a result of such potential trade diversion, the implementation of the AfCFTA could be hindered. It is only by addressing the interests of these economies that AfCFTA will foreclose the possibility of a “crisis of implementation”.