African Trade and Integration: Law, Practice and the Courts
Africa’s trade and integration initiatives, which aim to eventually establish the African Economic Community, are anchored in law. Members of the African Union conclude agreements to achieve specific objectives that will collectively advance integration. The African Continental Free Trade Agreement (AfCFTA) is the most recent addition to the agreements concluded by members of the Regional Economic Communities (RECs). Eight RECs are recognised by the African Union, but there are others, including the oldest functioning customs union in the world, the Southern African Customs Union (SACU). They all exist in terms of their own legal instruments, which together constitute a comprehensive network of legal rules created by their treaties, protocols, annexes and appendices. To these are added acts and directives; further rules are also added by organs and institutions created by the treaties.
The context of Africa’s integration is complex: Africa is a diverse continent, in terms of economic size, level of development, and importantly industrialisation. A stark reminder is that 33 of the world’s 46 least developed countries are on the continent, and 16 African countries are land-locked. The African continent remains fragmented, and primarily an exporter of commodities. While this presents a clear rationale for integration, it equally complicates Africa’s integration. It is from this context that we at tralac appraise Africa’s trade and integration developments, and we focus in this book on dispute settlement. We contend that context is perhaps the most important factor determining the viability of Africa’s dispute settlement mechanisms and institutions.
tralac’s work on dispute settlement includes numerous contributions over the past two decades, since tralac’s establishment. We have published extensively, presented training programmes, and held stakeholder workshops on the evolution of dispute settlement in the RECs and the rulings of regional courts, as well as the approach by the private sector to domestic courts. The authors of the chapters in this book – Professor Gerhard Erasmus, Professor Dawid van Wyk and Creck Buyonge Miriti – and tralac staff, Associates and Alumni have all worked on this agenda. We’d like to thank especially Professor Tiya Maluwa, Obert Bore, Dr Talkmore Chidede, Abrie du Plessis, Kahaki Jere and William Mwanza for their contributions. We also extend very sincere appreciation to Sida (Sweden) for supporting this book, and our other development partners for their support to the broader body of dispute settlement work.
In this book, we review developments in the REC FTAs in terms of dispute settlement and compare REC Court practice with what can be expected under the AfCFTA Protocol on Dispute Settlement. There are indeed important differences between their approaches, but preparedness by African Governments to file disputes under this new dispute settlement Protocol will signal a very important development towards rules-based trade on the continent.