This Trade Brief argues that the private sector has a vital stake in the effective and lawful implementation of regional trade agreements such as the SADC Protocol on Trade. It sets out to explain why this is so and what the consequences of non-implementation are. There is a need for more concerted action on their part to advance efforts for proper rules-based trade arrangements, for the concomitant benefits of due process, transparency and respect for the rule of law. Some ideas are offered on how this could be achieved.

Free Trade Agreements (FTAs) are not an end in themselves. They are based on legal instruments which contain rules on how trade between the State Parties will be liberalized, what the timeframes for implementation of specific obligations are, whether certain exceptions are allowed and under what circumstances, how rights will be protected, and what remedies apply. Trade and regional integration are thus to be governed by law.

The difficulty facing private sector traders, investors, and service providers is the fact that trade agreements are concluded between states; although they are not the real traders. The private sector is not a party to these agreements and cannot directly derive any rights from the legal instruments so concluded. They are, however, often directly affected. Individuals or companies cannot invoke international agreements before domestic courts; unless such agreements are made part of the law of the land. This seldom happens in our part of the world.

The private sector will also not enjoy standing before regional courts or tribunals. The new Protocol on the SADC Tribunal has taken this right away. The net result is that private traders have to rely on the preparedness of their States of nationality to act on their behalf when they need assistance with regard to the unlawful behaviour of other governments. However, African states do not litigate against each other when it comes to trade issues.

The question which arises is whether the rule of law can and should apply within the SADC Free Trade Area and elsewhere. Would new African trade arrangements such as the Tripartite Free Trade Area (TFTA) and the Continental Free Trade Area (CFTA) be different? What could be done to change this unfortunate state of affairs?