When foreign Firms enforce trade-related contractual Claims in South Africa: Clarification of a unique Ministerial Discretion
International trade agreements are concluded by sovereign States. Once these agreements have entered into force the State Parties must comply with their obligations to liberalize trade and to regulate trade-related matters in the manner agreed upon.
Many essential aspects of these agreements are implemented through domestic executive measures. Tariffs on imports are listed in schedules annexed to trade agreements but are levied and collected by national customs officials. International health and safety standards are checked by local inspectors before shipment or at final market destinations. Certificates of origin are issued by national bodies before exporters can benefit from preferential rates of duty in Free Trade Area (FTA) Agreements or under preferential arrangements such as the Generalized System of Preferences (GSP) or the African Growth and Opportunity Act (AGOA). Intellectual property rights of foreigners are protected through national legislation, while trade in services is regulated via permits and rules or guidelines issued by national regulators.
This is the practical side of trade governance. How are private parties protected when governments’ trade regulating measures impinge on their rights or entitlements as traders, service providers or investors? The brief answer is that it depends on the type of measure complained about, the kind of protection sought, the nature of the rights invoked, or whether specific national legislative procedures apply. It also depends on whether remedies are sought under municipal (national) or international law.
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