How to exhaust domestic remedies? The Agiliss cases before the COMESA Court of Justice
In this paper, we provide a discussion of the principles which apply when a regional court such as the COMESA Court of Justice (CCJ) has to decide whether the requirement of exhaustion of domestic remedies has been complied with or not. We mention the relevant judgments of the CCJ and emphasise the fact that article 26 of the COMESA Treaty forms part of a regional integration arrangement based on Community Law. We start by recalling how the exhaustion of domestic remedies has developed as part of Public International Law and how this concept has been refined over time. In regional integration arrangements, the right of legal persons to approach regional courts has become an essential feature of the relevant legal regimes.
We argue that the requirement that legal persons must exhaust domestic remedies before they have access to regional courts, must be looked at holistically and in the context of the nature of the legal arrangement in which it appears. In the present instance, this requirement should be interpreted in view of the fact that it forms part of an inter-state regime established for the purpose of deepening economic integration among the Member States through adherence to specific legal obligations and procedures. These obligations appear in the legal instruments concluded by sovereign states. They must respect their obligations, including those adopted for the purpose of granting private parties’ effective access to the relevant regional court in order to protect rights, procedures and rules-based practices recognised in the applicable treaty. When the regional arrangement in question is based on Community Law, as COMESA is, the requirement to exhaust domestic remedies is about more than a mere procedural or jurisdictional prerequisite.
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