Regional Economic Communities (RECs) are the building blocks and the main engines behind the arrangements designed to promote regional integration and cross-border commerce in Africa. They display a number of unique features. The RECs are, as a rule, State driven and top-down projects founded on treaties between those States which have signed up as Members. Membership of regional economic communities is actively pursued. One of the problematic features of African regional integration is overlapping membership; States belong to several RECs simultaneously. This has several unfortunate consequences; such as duplication and conflicting rules (e.g. in the case of rules of origin), fragmented regulatory regimes, unnecessary costs, and legal uncertainty.

The active pursuit of REC membership has not been accompanied by clear designs about how to develop community law, to ensure legal certainty and the enforcement of obligations. The RECs are legal persons in their own right but have generally not been allowed to become proper rules-based arrangements where the effective monitoring of compliance with obligations is practiced. Many derogations are permitted while Governments do not litigate against each other when violations occur. The REC regimes seldom allow for supra national institutions since the Governments of the Member States are protective of their sovereign policy space.

The relevant legal instruments are not directly enforceable within the domestic legal spheres of the Members and dispute settlement is, in principle, a matter for the Governments. In their original conceptualization these regional structures allow private sector stakeholders such as firms and investors very little space for enforcing their rights. The legal instruments of the RECs cannot be invoked before domestic courts because they have not been made part of the law of the land. Private parties have not enjoyed standing before regional Courts and Tribunals; jurisdiction has traditionally been limited to inter-state disputes.

This state of affairs is changing; at least in some of the RECs. Regional Courts and Tribunals have allowed standing for private parties; while recent case law shows a tendency to expand the scope of the relevant jurisdictional principles. New types of disputes involving investors and businesses from other African countries are also being heard by domestic courts.

This Trade Brief discusses some of the recent cases and discusses the reasons and the implications of these developments for African regional integration endeavours.

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