This paper discusses the possibilities for including suitable trade remedies provisions as part of the Continental Free Trade Agreement (CFTA), which will be negotiated in order to conclude one of the CFTA pillars, namely a trade in goods agreement. These negotiations have to start in 2016.

The main difficulty with regard to trade remedies as legal disciplines in African Free trade agreements (FTAs) arises from the fact that African Governments (with the exception of two or three) have no experience of implementing WTO compatible trade remedies. They complain that the applicable disciplines are cumbersome and difficult to comply with. They lack the technical capacity and resources to do so and therefore forfeit an import set of mechanisms to protect domestic industries in a rules-based manner.

One of the unfortunate consequences is that some Members take unilateral action which flies in the face of their legal obligations under Regional Economic Community (REC) agreements. Another consequence is that infant industry clauses remain popular. They bring their own complications. The present state of affairs becomes even worse when the absence of binding dispute settlement provisions is considered.

The CFTA should strive to be a proper rules-based trade arrangement. In order to achieve this objective there should be clear rules as to the exceptions allowed and how such measures will be justified. Trade remedies and dispute settlement mechanisms are key to a rules-based trade regime.

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