Trade Briefs

The Polytol judgment of the COMESA Court of Justice: Implications for rules-based regional integration

The Polytol judgment of the COMESA Court of Justice: Implications for rules-based regional integration

Registration to the tralac website is required to download publications.

01 Jul 2015

Author(s): Gerhard Erasmus

The judgment by the First Instance Division of the COMESA Court of Justice in Polytol Paints & Adhesives Manufacturers Co. Ltd (Applicant) versus The Republic of Mauritius (Respondent) has far-reaching implications for rules-based regional integration in Southern Africa. This regional court accepted, apparently for the first time, an application by a private party to enforce an international agreement and to protect the trade related rights of a private firm.

The main arguments by Polytol Paints revolved around the fact that under Article 46 of the COMESA Treaty Member States of the Organization were required, by the year 2000, to eliminate customs duties and other charges of equivalent effect imposed on goods eligible for Common Market treatment. Mauritius initially complied with this obligation but in 2001 re-introduced a 40% customs duty on specific products imported from Egypt (another COMESA member), which included the products imported by the Applicant. Only Egyptian products were targeted.

The Government of Mauritius lodged an appeal to the Appellate Division of this Court, which was later withdrawn. On 6 February 2015 the Court issued a final order that the matter has been settled between the parties; after having received a letter to that effect. The ruling confirmed that the traditional view (that only states are the parties to international agreements and that only they derive rights from such agreements and enjoy standing before international courts when violations occur) needs to be qualified in the case of rules-based regional integration. Community law is sui generis. A binding precedent about the relevant aspects of the community law of COMESA now exists. This Trade Brief discusses this development and the implications for rules-based integration in the Regional Economic Communities (RECs).

Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.