African Continental Free Trade Agreement

NEWS: 12.16.2021

The News and Events published every week include conferences, major developments in the field of International Economic Law in Africa at the national, sub-regional and regional levels as well as relevant case law.

Ambiguities in the AfCFTA Text: Red Herrings or Problems with Bearing on the Implementation of the AfCFTA

Its prudent to address questions having to do with the sequencing of the two Phases of the protocol and whether this sequencing was opted for practical reasons or if the ratification of the first set of the protocols is a precondition for the ratification of the second. The answer to this question will inter alia have implications on which States can participate in phase II negotiations and whether or not leapfrogging of protocols is a possibility for member States. Moreover, in light of the great appetite to realize the objectives of the AfCFTA and fast track trading under this instrument, it might be worth considering what incentives (price of entry) can be set to encourage early adopters.

Conflict of Laws and Intra-African Commercial Disputes: To What Extent Does (Lack of) A Harmonized Pan-African Conflict of Laws Regime Support the AfCFTA Liberalization Agenda?

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.

Investment Governance in Africa to Support Climate Resilience and Decarbonization

African nations have only marginally contributed to global warming relative to developed and emerging economies in the Americas, Asia, and Europe. However, the African continent will bear a disproportionate burden of the negative impacts of climate change. Climate-related challenges like flooding, drought, and intense heat waves will increasingly confront the continent at a worsening rate. African nations should not be expected to take the lead in addressing a climate emergency they did not create. The priority for Africa is to receive support and investment to build resilience and adapt to climate impacts.

Domestic Effects of International Law in Nigeria: The Case of Trade Agreements

In this piece, I argue that Nigeria’s non-compliant behaviour is prevalent and entrenched in the field of international trade law, and that this behaviour is largely influenced by Nigeria’s perception of its national economic interests, which are underpinned by the protectionist policy of import-substitution. But Nigeria’s poor adherence to international trade rules should also be seen in the context of its general lack of commitment to the rule of law.

AfCFTA and International Commercial Dispute Resolution – A Private International Law (Conflict of Laws) Perspective

In this presentation, I have argued that the current national conflict of laws regimes to resolve intra-African private cross-border commercial disputes are not fit for purpose. They must be reformed to enable them to deliver on the goals of the AfCFTA. One can expect an increase in private cross-border commercial disputes arising from increased intra-African trade with the implementation of the AfCFTA. It would be unfortunate if all the efforts of member states and the AfCFTA Secretariate are devoted to developing AfCFTA’s inter-state dispute resolution mechanism, and little or nothing is done about the legal framework for resolving cross-border private commercial disputes. This is because most of the trade transactions under AfCFTA would involve private business entities. Their rights need to be protected to ensure certainty and predictability for them.