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Trade in Services Negotiations Update


Trade in Services Negotiations Update

Trade in Services Negotiations Update

The Decisions, Declarations, Resolution and Motions adopted at the Thirty-Fifth Ordinary Session of the African Union (AU) Assembly took place in Addis Ababa on 5-6 February 2022. The Decisions, Declarations and Motion adopted by the Assembly have now been published.[1] The Assembly decisions on trade in services under the Protocol on Trade in Services of the African Continental Free Trade Area (AfCFTA) are examined in this Blog. The AU Assembly adopted the decisions of the 8th Meeting of the AfCFTA Council of Ministers responsible for Trade which took place in Accra, Ghana, on 28-29 January 2022. The Council of Ministers’ decisions have to be adopted by the AU Assembly for them to become binding.

A decision was also taken by the Assembly to convene another Extraordinary AU Assembly meeting, dedicated to the AfCFTA, attesting to the “critical importance of the role of the Assembly in advancing progress in the implementation of the AfCFTA and in the remainder of the AfCFTA negotiations”. Only once all outstanding matters have been agreed and the results have been adopted by the AU Assembly, will the full AfCFTA be achieved.

The Assembly welcomed the submission of services offers by 46 State and non-State Parties. These are: Angola, Algeria, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central Africa Republic, Cape Verde, Chad, Comoros, Congo, Cote d’Ivoire, Democratic Republic of Congo, Egypt, Eswatini, Equatorial Guinea, Gabon, The Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Namibia, Niger, Nigeria, Rwanda, São Tome and Principe, Senegal, Seychelles, Sierra Leone, South Africa, Sudan, Tanzania, Togo, Uganda, Zambia and Zimbabwe. Verification of the schedules of specific commitments tabled by State and non – State Parties is undertaken by the AfCFTA Secretariat. The verification process aims to assess the consistency of the tabled schedules of commitments against the modalities and guidelines for the trade in services negotiations. The technical accuracy and clarity of schedules are also checked. For WTO Member States the offers of specific commitments must be GATS Plus, and for non-WTO Members the baseline is autonomous liberalisation.

According to the Negotiating Guidelines and Modalities, the services scheduling takes a positive list approach, General Agreement on Trade in Services (GATS)-plus approach. This means each State Party lists each sector that they are committing under the AfCFTA. For each sector or sub-sector, State Parties list any derogations from market access for foreign service providers (Art. 19 of the Protocol) and national treatment (Art. 20 of the Protocol) – for each mode of supply. For example, the Financial Services sector may be listed, and under that, the sub-sector of banking and other financial services. This sub-sector is divided into further subsectors. Against each mode of supply – cross-border supply, consumption abroad, commercial presence and the presence of natural persons – the scheduling country will make a separate commitment for market access, national treatment and additional commitments.

The deadline for completion of the negotiations of specific commitments for the 5 priority sectors, including the legal scrubbing, is now end June 2022. Concerted efforts are being made to meet this deadline and so complete the negotiations process, which includes bilateral request and offers for the financial services, communication, transport and tourism sectors as well as business services.

The establishment of the Committee on Trade in Services and its 5 Sub-Committees has also been noted by the Assembly. The Sub-Committees are:

  • Sub-Committee on Specific Commitments;

  • Sub-Committee on Regulatory Frameworks;

  • Sub-committee on Trade in Services-related Issues, and

  • Sub-Committee on AfCFTA Trade in Services Rules.

The Assembly commended the Council of Ministers on the progress made in the negotiations on the Movement of Natural Persons under Trade in Services (Mode 4) and recognised specifically the Technical Note on the Common Categories of Natural Persons. Facilitation of the movement of business people on the Continent was specifically noted as a priority focus area for the Council of Ministers, which was also charged with the responsibility to fast track all issues related to the development of Regulatory Frameworks for the 5 priority services sectors. It is possible for additional sectors to be added to the negotiating agenda, while the negotiations for the priority sectors continues. Interest has been expressed in, amongst others, distribution services, education and healthcare services. A comprehensive work programme has been adopted by the Council of Ministers to work towards achieving the target of completing the negotiations for the priority sectors.

[1]  pdf 35th Ordinary Session of the AU Assembly: Decisions, Declarations, Resolution and Motion - February 2022 (1.20 MB)

About the Author(s)

Gerhard Erasmus

Gerhard Erasmus is a founder of tralac and Professor Emeritus (Law Faculty), University of Stellenbosch. He holds degrees from the University of the Free State, Bloemfontein (B.Iuris, LL.B), Leiden in the Netherlands (LLD) and a Master’s from the Fletcher School of Law and Diplomacy. He has consulted for governments, the private sector and regional organisations in southern Africa. He has also been involved in the drafting of the South African and Namibian constitutions. He grew up in Namibia.

Trudi Hartzenberg

Trudi Hartzenberg is the Executive Director of tralac. She has a special interest in trade-related capacity building. Her research areas include trade policy issues, regional integration, investment, industrial and competition policy.

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