AFRICAN CONTINENTAL FREE TRADE AREA’S PROTOCOL ON DISPUTE SETTLEMENT MECHANISM: LEGAL ANALYSIS OF SELECTED ISSUES

Abstract

In the historic event towards continental economic integration, the AU Assembly signed the Treaty Establishing AfCFTA, with three protocols, on 21 March, 2018. This study made a legal analysis of the Protocol on Dispute Settlement Mechanism. The study is a qualitative doctrinal research. In making conclusions and forwarding proposed solutions, it relied on analysis of relevant legal documents and literatures. The analysis identified limitations of the Protocol on main issues selected for this study. Firstly, the study assessed possible role of ACJHPR in AfCFTA dispute settlement and argues that the Court, given the generous jurisdictional provision under Article 28 of its Statute, has a valid legal ground to assume jurisdiction over AfCFTA disputes; while the AfCFTA Agreement made no reference to the Court. Recalling the objectives enunciated under Abuja Treaty and the underlying purpose of having a single continental court, the researcher argued that AfCFTA cases be linked to ACJHPR by placing AfCFTA Appellate Body in the Court. Secondly, the study analyzed relation between AfCFTA and RECs. Accordingly, legal instruments currently governing relation between AU and RECs focus on informal cooperation and no strongly binding instrument is found on this issue. For AfCFTA recognized RECs as building blocs, the author recommends that new Protocol on Relations between AfCFTA and RECs, which inter alia designs clear strategy on relation between AfCFTA and RECs and creates a hierarchy of legal relations between the two, be adopted and annexed to AfCFTA Agreement. Finally, the author strongly argues for opening of access to DS for private parties and forwarded two optional way outs. Firstly, the author called for decentralization of DS by adopting EU model, by enabling domestic courts to entertain AfCFTA cases, linking them to AfCFTA DSB through preliminary ruling and appeal mechanisms. Secondly, if current system, which is modelled after WTO is to continue, the author recommends for modification through establishment of an arbitration tribunal facilitated by AfCFTA Secretariat to handle cases from private parties.