I. The TDM AfCFTA Project

We are pleased to release the third thematic issue of the Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) centred around African economic integration in the context of development driven by the creation and continuous evolution of the African Continental Free Trade Agreement (AfCFTA), thereby concluding a multiyear collaborative editorial project that dates back to a Call for Papers (CfP) released in March 2020. The first set of AfCFTA-focused articles was published in TDM Volume 18, Issue 4, in June 2021. The second appeared in Volume 20, Issue 2, in April 2023. This third set, in Volume 22, Issue 2 (May 2025), also includes the proceedings of the virtual OGEMID AfCFTA Symposium, held at the turn of April and May 2025.

1. The Case for the Project

Looking in retrospect, the March 2020 release of the TDM AfCFTA special issues CfP was a response to both a historical moment and a developmental imperative. This initiative was rooted in timely recognition of the transformative potential of the AfCFTA Agreement and its significance within the global trade architecture - measured against the policy urgency surrounding Africa's fragmented trade landscape. At that time, the AfCFTA Agreement had been signed and gradually ratified since 2018 - which was lauded as a milestone towards Pan-African economic integration - and scheduled for operation in July 2020. It represented a landmark effort to harmonise trade rules, deepen investment ties, and overcome historical barriers to intra-African commerce. With 54 signatories and a shared ambition to eliminate tariffs and eventually establish a continental customs union, the Agreement promised to redress Africa's economic marginalisation and unify 54 African nations into a single market of over 1.3 billion people - which ever since grew to over 1.4 billion people. The promise of the AfCFTA lay not only in tariff liberalisation but in deeper structural and regulatory reforms aiming to streamline customs, harmonise investment standards, and resolve longstanding institutional fragmentation caused by overlapping regional trade regimes in the form of RECs.

At the core of the problem that the AfCFTA is meant to address lies a trade pattern shaped since the Age of Discovery, when intercontinental maritime trade - due to its cost and economies-of-scale advantages - eclipsed the continent's preexisting land routes, which gradually dried up as less efficient in terms of both time and cost. In the years leading up to the adoption of the AfCFTA Agreement and our 2020 CfP , intra-African trade remained woefully underdeveloped relative to the volume of trade between African economies and non-African partners. Indeed, according to United Nations Conference on Trade and Development (UNCTAD) figures, the share of Africa's intra-continental trade flows in global trade has remained low, standing at a mere 15.2% in global trade on average in the 2015-2017 period against 47% for the Americas, 61% for Asia, 67%, the for Europe and 7% Oceania.[1] And these trade figures align closely with investment-protection statistics, which reveal that, as of the CfP's drafting, African states had concluded 940 bilateral investment treaties (BITs), of which only 277 were intra-continental, and that merely seven intra-African investment arbitration cases had been know publicly. However, intra-African trade and investment have great growth potential, according to the International Monetary Fund (IMF). The gap between Africa's external and internal trade has been gradually bridged over the last three decades with the share of intra-continental imports in Africa's total imports increasing from 5% in 1990 to 12% in 2017.[2] Thus, according to the IMF 2019 study, under the AfCFTA: '[t]he elimination of tariffs on intraregional trade is estimated to [further] increase trade in the region by about 15-25 per cent over the medium term, whereas reducing non-tariff barriers (NTBs) by half would more than double such effects.'[3] And the potential shifts in the spatial structure of the continent's economic base could potentially have tremendous implications for the constructivist regulatory superstructure accommodating African economies with autonomous architecture in fields like finance, insurance, and law - with particular emphasis on the resolution of private, intergovernmental, and mixed disputes, which are of our and TDM journal's core interest - existing regionally and not being outsourced outside of the continent.

Why, ever since the Age of Discovery and continuing even after formal political decolonisation, most of the lucrative sectors and occupations in the global division of labour - including legal, financial, rule-making, and indeed dispute resolution roles - have remained outsourced from the African continent, or, if you will, remained Western-centric, is arguably best explained by the structuralist account of the liberal international economic order (LIEO).[4] Namely, the existing LIEO has been shaped in the course of government-to-government dealings responding to the needs of merchants involved in sea and cross-border trade along the world's dominant trade routes that skipped and undercut the preexisting trade routes, whether that be those passing through Eurasian steppes or through Sahara. In most general terms, first, at the macro level, the increased interactions between private merchants over increasingly long distances transgressing countries, borders, jurisdictions, regions and eventually continents have led to the spontaneous creation of the autonomous global order of private commercial contracting. One could plausibly contend that comparable dynamics were occurring in parallel across the world's farthest reaches. However, the redirection of strategic trade flows from land-based routes to intercontinental maritime channels compelled the consolidation of a unified global liberal economic regime, marginalising and displacing distinctive regional systems to a peripheral status, whereas Western Europe - owing largely to geography-grounded, unmatched economies of scale - established itself as the nucleus of the liberal law merchant. And second, at the macro level, the growing number of various trade-related intergovernmental arrangements has led to the emergence of global economic governance somewhat accommodating and somewhat taming the autonomy of law merchant at the same time, further standardising the terms of cross-border trade.

More specifically, this structuralist model posits that, at the micro level, positive reciprocity has incentivised merchants to enter into well-defined contracts, whereas negative reciprocity prevented merchants from breaching these agreements in fear of punishment. Market forces induced merchants to travel along trade routes in the quest for goods, where continuous trading/reselling operations made merchants crave a uniform normative system and a related dispute-resolution infrastructure. Crucially, direct network effects have increased the use of some specific commercial standards over other standards, with the growing number of merchants using these specific standards. In turn, indirect network effects have made specific jurisdictions or arbitration fora particularly attractive for transactions in specific fields like insurance or shipping. Subsequently, at the macro level, rising national states have gradually appropriated such old merchant law by codifying it into national new merchant law throughout the 16th-19th centuries. Since the late 19th century, further increasing trade flows have forced governments to integrate new merchant law into a vast array of almost universal standards such as under the aegis of UNIDROIT, UNICIRAL, WTO, WIPO etc. and numerous global NGOs or semi-private multinational organisations - which is in line with liberal thinking about the international relations. We still live under a financial, legal, and regulatory superstructure that is path-dependent on centuries of such networks consolidating their power. Thus, it is hardly surprising that the established legacy hubs for both commercial and investment arbitration, like London, Paris, and New York, have remained relatively impervious to the rise of new legal hubs (NLHs), including those emerging across Africa, to a degree greater than might be anticipated, considering the emergent spatial redistribution of economic power.

The current opportunity for emancipation of the African economic superstructure lies within the broader context of the transition from the existing Western-centric order to a multipolar world, where the Trans-Atlantic West will be just one of several centres of economic power, and Western-style economic liberalism will be challenged. Yet the question arises how the interplay of realist developments in the economic base, accompanied by spatial shifts in trade flows and changes in the regulatory and financial superstructure, will unfold in the case of Africa and whether African strategists and policymakers will make the most of this moment in history and embrace its historic opportunity. After all, globally and at a high level of abstraction, the process of economic multipolarisation brings significant uncertainty about which segments of the liberal international economic order (LIEO) - dubbed 'rules-based' by its Western originators - are likely to remain unchanged and which segments will undergo harmonious spatial fragmentation to better reflect an increasingly polycentric world, where more economically liberal and more statist great spaces may coexist without major friction at their margins. And where are conflicts between different governance models likely to arise? In the case of Africa, we can already observe a mismatch. On the one hand, realist developments in the economic base have led to the replacement of former LIEO-advancing metropoles with the statist, state-capitalist People's Republic of China (PRC) as the core trading partner. On the other hand, African policymakers appear to be designing a superstructure that replicates institutional models like Mercosur's and, eventually, the EU's - viewed as a second-best top-down pathway for advancing the LIEO, given its exhausted capacity to expand globally in a multipolar world.

It was in this dynamic context that we launched the TDM AfCFTA project, seeking to accompany these unfolding developments by curating rigorous, policy-relevant legal scholarship, focusing especially on trade and investment law dimensions, and providing a forum for legal scholars and practitioners to reflect on the challenges and innovations of Africa's trade law architecture and possibly inform further policy deliberations.

2. Covered Topic and General Findings

Across the three volumes, the collective body of contributions revealed a consistent focus on investment law reform, dispute resolution mechanisms, and normative alignment with Africa's developmental ambitions. These thematic strands are supported by supplementary inquiries into environmental, human rights, and institutional frameworks, as well as emerging outlier topics that broaden the intellectual terrain of AfCFTA scholarship. Foremost among the examined topics is the reconfiguration of Africa's investment governance architecture. The contributions repeatedly highlighted efforts to define a regional investment regime that transcends conventional BIT models. Emphasis is placed on safeguarding policy space for host states, ensuring legal certainty for investors, and embedding sustainability into the legal foundations of cross-border investment. This reformist orientation reflects a shared understanding that Africa's economic transformation must be underpinned by legal instruments tailored to its structural and political context.

Another principal topic addressed is the institutional design of dispute resolution frameworks under the AfCFTA. The special issues collectively interrogate the effectiveness, accessibility, and coherence of the AfCFTA's Dispute Settlement Protocol (DSP). Attention is drawn to its intergovernmental character, the scope of permissible jurisdictions, and its relationship with existing regional mechanisms. Several contributions suggest that overlapping mandates between AfCFTA institutions and RECs may generate jurisdictional tensions, requiring clearer normative delineation and procedural integration. A further core concern is the integration of public interest objectives into trade and investment frameworks. Contributors examine the inclusion of environmental protections, social equity provisions, and human rights safeguards within the AfCFTA's legal instruments. There is a prevailing view that these concerns should not be peripheral but central to Africa's trade governance, anchoring the AfCFTA within broader development and justice agendas. Legal innovation in this area is frequently proposed as a means to avoid replicating investor-centric treaty templates while supporting inclusive growth.

The operational challenges of implementing AfCFTA commitments also feature prominently. Abstracts explore the gap between legal ambition and administrative capacity, highlighting the importance of institutional development at both national and continental levels. Emphasis is placed on the risks of legal fragmentation, disparities in compliance, and the necessity of building coherent regulatory systems. These concerns are further linked to the practicalities of legislative adaptation, judicial interpretation, and inter-agency coordination across diverse legal traditions. A recurrent thematic undercurrent is Africa's legal pluralism. The coexistence of civil, common, and customary legal systems, alongside regional and continental instruments, presents both obstacles and opportunities for harmonisation. Abstracts analyse how this pluralism shapes the trajectory of legal convergence and contestation. There is broad agreement that successful legal integration must accommodate diversity while progressively standardising foundational norms.

In addition to these dominant themes, the editorial project surfaces a range of outlier topics that signal the expanding boundaries of AfCFTA-related legal discourse. These include the treatment of intellectual property, the intersection of competition policy with merger control, and the regulation of digital trade. While less central, such themes underscore the need for adaptive legal frameworks capable of addressing complex and evolving policy domains. A comparative perspective also permeates the project. Contributions frequently draw on experiences from other trade blocs and global institutions, assessing how models from the WTO, Mercosur, or ASEAN may inform or misalign with African realities. These comparative exercises are framed not as blueprints for transplantation but as diagnostic tools to refine African legal strategies. The importance of contextualising legal borrowing and resisting one-size-fits-all solutions is repeatedly emphasised.

Across the full spectrum of contributions, there is a shared concern with balancing legal certainty and regulatory flexibility. The authors reflect on how legal instruments can simultaneously promote investment, protect sovereign prerogatives, and accommodate development priorities. This tension is acknowledged as fundamental to the AfCFTA's long-term viability. The strategic objective, it is suggested, is to construct a legal order that is both predictable and responsive, capable of evolving with Africa's socio-economic landscape. From a methodological standpoint, the editorial contributions adopt a diversity of approaches, ranging from doctrinal analysis and institutional critique to empirical case mapping and comparative legal theory. This pluralism enhances the richness of the project, allowing for both granular and systemic insights. While each abstract engages a distinct sub-topic, together, they coalesce into a cumulative narrative about the possibilities and constraints of continental legal integration.

A general conclusion arising from the abstracts is that the AfCFTA project represents not merely a technical trade arrangement but a constitutional moment for Africa. The legal frameworks emerging from the Agreement are imbued with political significance, offering a platform for asserting African agency within the global economic order. As such, the AfCFTA is interpreted as both a legal and normative endeavour, requiring deliberate attention to the values and visions that underpin its architecture. Further, the project surfaces a pragmatic recognition of asymmetries within and beyond the continent. Contributions acknowledge that intra-African disparities in legal capacity, infrastructure, and market power pose significant challenges to uniform implementation. They also reflect on external dynamics, including shifting geopolitical alliances and the pressures exerted by foreign investment regimes. These dynamics necessitate strategic alignment between Africa's legal aspirations and its material constraints.

Looking ahead, the editorial project collectively calls for sustained legal innovation, institutional consolidation, and inclusive policymaking. It advocates for iterative processes of legal reform grounded in African experiences, as opposed to rigid adherence to external models. There is strong support for participatory legal development, with an emphasis on multi-level governance and engagement with non-state actors. Ultimately, the contributions confirm that Africa's trade and investment future hinges not only on treaties and protocols but also on the construction of a legitimate, functional, and development-oriented legal order. The AfCFTA provides the scaffolding. What remains is to build the superstructure through sustained scholarship, political commitment, and institutional resilience.

3. Project Contributors

We extend our sincere thanks to all those who contributed to the TDM AfCFTA project, including:

(i) Part 1 (2021) 18(4) TDM: Collins C. Ajibo, Sadia Bakarr, Eghosa O. Ekhator, Akinyi J. Eurallyah, Mouhamed Kebe, Emiliano Marchisio, Ernest Morales-Tonda, Kilele Muzaliwa, Dennis Ndonga, Chidebe M. Nwankwo, Opemipo Omoyeni, Rose Rameau, Anahita M. Riegler, Arjun Solanki, Anushka Tanwar, and Gudrun M. Zagel;

(ii) Part 2 (2023) 20(2) TDM: Thiago Ferreira Almeida, Ansoumane D. Diakité, Egor Dymper, Rimdolmsom J. Kabré, Yannick Kouassi, Emma M. S. Ngondje Songue, Mmiselo F. Qumba, Nelly C. Rotich, Francesco Seatzu, Regis Y. Simo, Alioune B. Thiam, Enyinnaya C. Uwadi, and Paolo Vargiu;

(iii) Part 3 (2025) 22(2) TDM: Victor O. Adenekan, Rebecca Ebokpo, Patrick E. Ejumedia, Takem Enaw , Oluwatosin Fajolu, Ahmed Yasin Jelle, Bashar H. Malkawi, Babarinde S. Micah, Athanasios P. Mihalakas, Benjamin K. Ng'eno, Isaac C. Nwaogwugwu, Chijioke Ochogwu, Raymond Ofagbor, Mohannad A. El Murtadi Suleiman, and Roman Zykov;

(iv) OGEMID - AfCFTA Symposium: Funke Adekoya, Kabir Dugal, Mark Kantor, Esine Okudzeto, Abayomi Okubote, Emilia Onyema, Cesar Pereira, Leonardo F. Souza-McMurtrie, Jacqueline Waihenya, and Sope Williams.

II. Abstracts

1. Part 1 (2021) 18(4) TDM.

In an article titled Regional Economic Communities as the Building Blocs of the African Continental Free Trade Area Agreement, Collins C. Ajibo, Chidebe M. Nwankwo & Eghosa O. Ekhator argue that the AfCFTA Agreement recognises the RECs as the building blocs for continent-wide integration, in line with historical efforts reflected in the Lagos Action Plan of 1980 and the African Union's (AU) transitional plan articulated in the 1991 Abuja Treaty establishing the African Economic Community. The AfCFTA enjoins State Parties that are members of RECs which have attained higher levels of elimination of customs duties and trade barriers than those provided under the Protocol to continue maintaining and, where possible, improve upon such higher levels of trade liberalisation among themselves. While RECs are fundamental to the African integration experience and are considered the building blocs of the AfCFTA, several challenges may emerge. The authors examine both the prospects and the challenges facing RECs under the recently established AfCFTA regime.

In the article titled The Pan-African Investment Code as a Model for Negotiation on the Investment Protocol to the Agreement Establishing the African Continental Free Trade Area, Rose Rameau argues that the PAIC, as the first African model investment treaty, has been subject to criticism by investment experts for being 'too protectionist.' Drafted by African experts, the PAIC aims to promote sustainable development through non-traditional and innovative features tailored to the African context, thereby making it a unique legal instrument. Critics contend that its emphasis on State regulatory powers and investor obligations renders it incompatible with the goals of investment liberalisation. However, the author maintains that the PAIC represents a powerful non-traditional framework for advancing sustainable development both within Africa and globally. Rameau further argues that the PAIC should serve as a basis for negotiating the AfCFTA investment protocol, given its alignment with modern African priorities, its endorsement of the UN Sustainable Development Goals (SDGs), and its capacity to redress asymmetries between intra-African and extra-African investors and host States.

In the article titled Structuring the AfCFTA's Rules of Origin to Promote Competitive Distribution of Investment in Africa: Lessons from the SADC, Dennis Ndonga & Anahita M. Riegler examine how the design of preferential Rules of Origin ( RoO ) under the AfCFTA can influence the distribution of investment across the continent. While Africa has historically attracted a disproportionately small share of global investment flows, the AfCFTA aims to address this imbalance through its forthcoming Investment Protocol, which will tackle NTBs to investment. The authors note that discussions around RoO have primarily focused on trade effects, with limited attention to their investment implications. Against this backdrop, the article analyses how existing RoO within the Southern African Development Community (SADC) have shaped intra-regional investment patterns. Drawing on these insights, the authors propose that the AfCFTA's RoO should be structured to foster a more competitive and equitable distribution of investment among member states.

In the article titled Relationship between the SADC Investment Agreement and National Investment Laws of SADC Member States: Perspectives from the Democratic Republic of Congo Investment Code, Kilele Muzaliwa explores the interplay between the SADC Investment Agreement (SADC IA) and the domestic investment laws of its Member States. While the SADC IA seeks to harmonise legal frameworks to foster a regional investment zone, its provisions do not override national legislation. Consequently, the Agreement coexists with domestic laws, some of which offer higher standards of protection to investors. This coexistence creates disparities in investor protections across the region, potentially undermining the harmonisation goals of the SADC IA. Using the Investment Code of the Democratic Republic of Congo as a case study, the author examines how domestic laws can influence the coherence and effectiveness of regional investment frameworks.

In the article titled Impact Investment & Sustainable Development: Rethinking the Definition of Investment in African International Investment Agreements - An Outlier Perspective, Opemipo Omoyeni critiques prevailing approaches to defining investment in African International Investment Agreements (IIAs) and proposes a reorientation towards impact-driven investment frameworks. As African countries increasingly push for treaty models aligned with SDGs, recent IIAs have introduced progressive provisions based on a balanced, enterprise-based understanding of investment, including the application of the Salini criteria -particularly the contentious requirement that investments contribute to a host state's economic development. Alongside this, treaty protections have been restructured to accommodate host States' regulatory space while recognising investor rights. Omoyeni , however, adopts a distinct approach, arguing that in light of inconclusive empirical evidence linking foreign direct investment (FDI) with IIAs, African countries should either reconsider entering into such agreements or limit protections to investments that actively advance sustainable development. The article supports the latter, calling for an IIA model centred on impact investment principles.

In the article titled Africa's Investment Treaty Practice with China: Are the Africa-China BITs Conducive to the Implementation of the AU Agenda 2063?, Gudrun Monika Zagel examines whether BITs between African states and China align with the sustainable development aspirations outlined in the AU's Agenda 2063. Although China has long played a significant role as an investor in African infrastructure and development, concerns remain about whether existing Africa-China BITs adequately support host states' sustainability efforts. The article analyses how traditional treaty provisions may hinder the implementation of environmental and social policies and considers whether newer agreements - particularly the China-Tanzania BIT (2013) - reflect African reform efforts aimed at strengthening sustainable development objectives. Zagel assesses the extent to which this BIT addresses previous shortcomings and whether it could serve as a template for future treaties. The article also discusses the opportunities and obstacles of reforming Africa-China BITs and explores the potential role of the AU in guiding this process.

In the article titled The Getma v Guinea Legal Saga: Exploring Future Directions for Investment Arbitration in Africa, Arjun Solanki & Anushka Tanwar analyse the challenges highlighted by the Getma International v Republic of Guinea case for investment arbitration within Africa. The authors focus on the Common Court of Justice and Arbitration's (CCJA) controversial decision to set aside an arbitral award on the basis that arbitrators were paid fees exceeding the CCJA's predetermined limits. This rigid stance on arbitrator fees raises concerns about the CCJA's ability to attract arbitration users going forward. While the Organisation for the Harmonisation of Business Law in Africa (OHADA) demonstrates significant potential for the growth of investment arbitration on the continent, the current fee regulations may restrict foreign investors' rights to select arbitrators freely in OHADA Member States.

In the article titled The AfCFTA and Intra-African Investment Disputes: A Special Focus on Lusophone Africa, Ernest Morales Tonda examines procedural challenges in intra-African investment disputes involving Lusophone African states, with a view to informing the design of an effective dispute resolution mechanism under the AfCFTA Investment Protocol. The article argues that adopting a multilateral dispute resolution system within the AfCFTA would enhance legal certainty and foster a more favourable investment climate by resolving complexities arising from overlapping treaties and diverse investment policies across the continent. Tonda emphasises that a carefully drafted Investment Protocol aligned with international best practices - supporting both trade and national development - could significantly amplify the economic benefits anticipated from the Agreement's ratification.

In the article titled The Case for a Permanent African Continental Investment Dispute Settlement Tribunal, Mouhamed Kebe explores the critical role of establishing a robust dispute settlement mechanism (DSM) for the successful implementation of the AfCFTA. Highlighting the ambiguity in the AfCFTA's dispute settlement provisions - specifically the allowance for arbitration without a clear definition of its scope - Kebe stresses the need for a dispute resolution process that balances the interests of States and investors. Such a mechanism should make Africa an attractive investment destination while safeguarding the capacity of African nations to regulate in the public interest and promote sustainable development. The article argues persuasively for the creation of a permanent investment dispute tribunal under the AfCFTA's Protocol on Rules and Procedures for Settlement of Disputes.

In the article titled MFN in Services Trade: A Comparative Analysis of the General Agreement on Trade in Services and the African Continental Free Trade Area Agreement, Sadia Bakarr examines the Most-Favoured-Nation (MFN) principle in international trade, focusing on its application under the multilateral General Agreement on Trade in Services (GATS) and the regional AfCFTA. The article contrasts the unconditional MFN under GATS with the novel reciprocal MFN clause in the AfCFTA, exploring the legal implications of these differences through a review of relevant literature. Bakarr highlights that AfCFTA members politically require autonomy in negotiating trade preferences, while practical and administrative challenges complicate the implementation of the reciprocal MFN. The article recommends clarifying the meaning of reciprocity to reduce negotiation uncertainties and stresses that members should prioritise overall trade barrier reduction rather than creating new preferential agreements, given the existing legal architecture formed by RECs within the AfCFTA.

In the article titled Copyright, the AfCFTA and the Heterogony of Ends, Emiliano Marchisio critically examines the inclusion of intellectual property rights (IPRs), particularly copyright, in the AfCFTA framework. Challenging the prevailing assumption that stricter copyright enforcement fosters cultural and economic growth, Marchisio argues that copyright often produces economic inefficiencies, facilitates censorship, and disproportionately benefits multinational corporations rather than African creators. He contends that expanding copyright protections in Africa would hinder, rather than promote, cultural and economic development. As an alternative, Marchisio proposes curtailing copyright legislation in the short to medium term and eventually replacing it with a model that treats cultural works as common goods. This, he argues, would better serve democratic values and developmental goals while addressing the inherent flaws of proprietary copyright systems.

In the article titled Non-tariff Barriers in the East African Community: Is the African Continental Free Trade Area the Long-Awaited 'Messiah'?, Akinyi J. Eurallyah examines the persistent issue of NTBs within the East African Community (EAC), despite formal commitments by Partner States to eliminate them. The article contrasts the EAC's NTB elimination framework with that of the AfCFTA, highlighting that the latter's NTB resolution mechanism appears more advanced and potentially more effective. Eurallyah evaluates whether the AfCFTA's mechanism could serve as the long-needed solution to NTBs in the EAC and concludes by assessing the AfCFTA's potential to offer more robust enforcement and better outcomes than the EAC's current approach.

2. Part 2 (2023) 20(2) TDM.

In the article titled Levelling up Global Sustainable Development Standards through Trade and Investment Agreements - Africa next?, Egor Dymper explores how international trade and investment agreements are increasingly being used as tools to promote sustainable development by embedding environmental and labour standards. While these components of development are often treated separately under international law, Dymper argues for their integration, especially as Africa emerges as the next frontier for implementing such sustainability-focused trade policies. The article analyses how treaty-making by major global economies effectively sets the standards, and considers how Africa can navigate this evolving landscape through its own trade and investment agreements.

In the article titled La protection de l'environnement dans l'accord créant la zone de libre-échange continentale africaine (Environmental Protection in the Agreement Establishing the African Continental Free Trade Area), Emma Marie Solange Ngondje Songue examines how environmental considerations are addressed within the AfCFTA framework. While trade liberalisation is often championed for fostering economic growth, the article highlights that such progress should not come at the expense of environmental sustainability. The author investigates whether the level of environmental protection provided under the AfCFTA is sufficient to support sustainable intra-African trade. She argues that the Agreement features a dual system of environmental norms, which unless paired with adequate implementation tools, risks generating legal disputes that could undermine the AfCFTA's intended developmental impact.

In the article titled Human Rights and the African Continental Free Trade Agreement on Investment Protocol: A Quest for Balance, Mmiselo Freedom Qumba examines the human rights implications of the AfCFTA's evolving investment framework. As Phase II of AfCFTA negotiations begins - covering complex areas such as intellectual property, investment, and competition - the article focuses on the publicly available "Zero Draft" of the Investment Protocol. This draft seeks to promote sustainable investment while preserving the regulatory autonomy of States. Qumba highlights the integration of human rights provisions as a distinctive feature of the draft and analyses their significance and potential effectiveness in ensuring that economic integration does not come at the expense of fundamental rights protections across the continent.

In the article titled An Exploratory Study on the Possibility of Harmonising Investment Protection Regimes within the OHADA Zone, Ansoumane Douty Diakite & Alioune Badara Thiam examine the challenges and prospects of harmonising investment protection laws across the OHADA member states. Africa's large population and abundant natural resources create a pressing need for investors who can drive sustainable development. However, foreign investors prioritise legal stability above incentives such as tax breaks or access to cheap labour. The authors highlight the continent's legal pluralism - where French-speaking countries follow Civil law traditions, English-speaking countries adhere to Common law, and customary law continues to influence many legal systems - resulting in significant uncertainties for investors, particularly multinational corporations. Against this backdrop, the OHADA, established in 1993, aims to reduce disparities in business laws among member states through Uniform Acts. While these acts focus primarily on harmonising business legislation to improve the investment climate, the key question posed by the authors is whether OHADA's harmonisation efforts should be extended to include the promotion and protection of foreign investments more explicitly. This study assesses the current mechanisms within OHADA Uniform Acts that protect foreign investors and explores the potential for deeper legal harmonisation in investment law across the OHADA zone. The authors conclude that OHADA's original intent was to promote investments through harmonised business law rather than to provide direct protection. Presently, investment protection is governed by a patchwork of national, bilateral, regional, and continental legal frameworks. Notably, BITs and investment codes among OHADA states show signs of convergence. Moreover, the PAIC aligns to some extent with standards found in OHADA member states' BITs. Therefore, Diakite and Thiam argue that the PAIC offers a valuable foundation for developing a new OHADA Uniform Act specifically addressing investment law, thereby advancing legal harmonisation and potentially improving the investment environment in the OHADA region.

In the article titled AfCFTA's Adoption of WTO Dispute Resolution Rules and Procedures: A Decision to Regret?, Francesco Seatzu & Paolo Vargiu critically examine the extensive replication of the WTO's DSM in the recently adopted AfCFTA DSP. The authors argue that concerns regarding this replication should be set aside, as the WTO's dispute settlement procedures and rules, when adopted by the DSP, provide a more reliable guarantee that decisions and recommendations will be effectively implemented. Nonetheless, the article advocates for a revision of certain provisions which appear to have been carelessly copied from the WTO's system, particularly those relating to the adoption, enforcement, and monitoring of recommendations and decisions under the AfCFTA. Furthermore, the authors call for clarification of key aspects of the DSP, including restrictions on 'forum shopping,' which may unduly limit access to the AfCFTA DSM, and the authorisation of panel establishments without input from political bodies such as the AfCFTA Assembly or the AfCFTA Council of Ministers. Additionally, the article suggests that a review of the DSP should consider allowing non-state actors - namely citizens or nationals of member states-to initiate disputes against AfCFTA member states. This inclusion is deemed highly significant, especially given the ongoing challenges and uncertainties surrounding investor-state dispute settlements under the AfCFTA as negotiations for the Investment Protocol continue to face difficulties.

In the article Access to Justice in International Investment Dispute Settlement in Times of Economic Nationalism: The Case of Swissbourgh Diamond Mines Limited and Others versus The Kingdom of Lesotho, Nelly C. Rotich addresses the critical question of whether reforms to investor-state DSMs truly ensure justice for the parties involved. The fundamental aim of any dispute settlement system is to provide 'access to justice.' The current regime governing investor-state dispute settlement and the corresponding access or denial of justice has been subject to ongoing debate. On one side, states argue that the existing framework grants them greater control and protection. Conversely, investors claim that state control has resulted in the denial of justice. In their efforts to secure justice for themselves, states have persistently called for the exhaustion of local remedies before pursuing international arbitration, a proposal whose feasibility remains contentious. This article examines the various ways in which justice has been denied in investor-state arbitration, using the case of Swissbourgh Diamond Mines Limited and Others versus The Kingdom of Lesotho as a key example. Looking ahead, it also considers whether the investment DSM outlined in the Protocol on Investment under the African Continental Free Trade Area will enhance access to justice for foreign investors.

In the article Non-Exclusivity and an Ocean of Possibilities: The AfCFTA Jurisdictional Lex Specialis, Regis Yann Simo examines the DSM established under the AfCFTA Agreement. The DSM is designed as a central feature to provide security and predictability to the new regional trading system. Modelled after the WTO's dispute settlement system, the AfCFTA DSP restricts access to the DSM to States only. This inter-state limitation is often seen as a drawback when compared to the access private parties enjoy in some RECs' courts or tribunals. However, while the AfCFTA DSM is compulsory, it is not exclusive. Article 3(2) of the DSP introduces 'special and additional rules and procedures on dispute settlement,' which opens up a wide range of possibilities. The article explores these possibilities, focusing on whether and to what extent Article 3(2) could be interpreted as granting private parties access to the dispute settlement procedures under the AfCFTA.

In the article Oded Besserglik v Mozambique: Lessons for Improving Investor-State Dispute Settlement in Africa, Rimdolmsom Jonathan Kabre examines the rare publicly known investment arbitration case involving an African foreign investor and the Republic of Mozambique. The arbitral tribunal dismissed all claims after five years, notably because the BIT invoked by the claimant had never entered into force. Kabre highlights lessons from the participation - and non-participation - of African actors such as courts, tribunals, State litigants, and counsels in resolving this intra-African dispute. The author argues that these lessons are crucial for informing current debates on improving investment DSMs in Africa, stressing the importance of legal stability, legal expertise, and legal ethics.

In the article titled From Protection to Facilitation Agreements: Contributions of The Pan-African Investment Code, the Brazilian Model, and the New Regional and Multilateral Foreign Investments Agreements, Thiago Ferreira Almeida explores the historical development and recent shifts in international investment law. The article explains how, since the post-Second World War era, investment protection has traditionally been embedded in BITs designed to shield foreign investments from domestic state measures. Almeida highlights a growing contemporary discussion around the need for more balanced rules between investors and states, incorporating broader public interest protections and recognising the unequal power structures in foreign investment regulation, drawing on the Third World Approach to International Law (TWAIL). The article examines the impact of emerging economies in reshaping the global economic framework in the twenty-first century, comparing traditional investment protection agreements such as the PAIC, RCEP, and CPTPP with facilitation-focused models like Brazil's Cooperation and Facilitation Investment Agreement (CFIA) and the ongoing deliberations at the WTO on a multilateral investment facilitation treaty. Almeida concludes that although facilitation agreements represent new alternatives, they do not fully resolve the criticisms of the existing system nor harmonise the positions of all emerging countries, given that some, including China, continue to support investor-state dispute settlement (ISDS) and BIT frameworks.

In the article titled Compliance with the AfCFTA: Is There Any Room for Hope?, Yannick Kouassi examines the challenges and prospects surrounding the implementation of the t AfCFTA Agreement. The article acknowledges the widespread optimism accompanying the adoption of the AfCFTA, which is viewed as a significant step towards boosting intra-African trade and fostering the development of local industries through preferential treatment of African goods. Kouassi notes that despite some opposition from certain groups lobbying against the agreement, its adoption has been largely celebrated across the continent. However, the article cautions that the success of the AfCFTA in delivering its anticipated benefits remains uncertain, given the historical precedent of numerous African agreements that were either only partially implemented or failed altogether. Using established compliance theories, Kouassi assesses whether the AfCFTA's fate might differ from previous agreements and applies these theories specifically to the African context. The article concludes that while there are considerable challenges to achieving compliance, these obstacles are not insurmountable, leaving room for cautious optimism.

In the article titled A Case for Public Interest Considerations in Merger Control Analysis with Reference to Competition Law Enforcement in Developing Countries: The Example of South Africa, Enyinnaya C. Uwadi argues that public interest considerations (PICs) play a critical role in merger control within developing economies, using South Africa as a case study. The author observes that while developed nations prioritise competition-centric merger reviews, emerging markets like South Africa integrate broader socio-economic objectives, such as employment protection and economic empowerment, into their regulatory frameworks. Uwadi highlights how South Africa's Competition Act, amended in 2019, explicitly elevates PICs - including job retention and ownership diversity - to a central position in merger assessments, reflecting the country's unique historical and economic context. The author contends that such an approach is justified by the fragile economies of developing nations, where unchecked mergers could exacerbate unemployment, inequality, or market monopolies. Uwadi acknowledges criticisms of PICs, including procedural complexities and potential conflicts with international trade commitments, but defends their necessity by emphasising their alignment with national development goals. He further suggests that clear guidelines and stakeholder involvement, as demonstrated in South Africa's merger review process, can mitigate risks of arbitrariness. By comparing South Africa's model with regimes like the US and EU, Uwadi underscores the adaptability of competition law to local realities, advocating for its adoption by other developing jurisdictions. The article concludes that PICs, when transparently administered, serve as a vital tool for balancing market efficiency with societal welfare in emerging economies.

3. Part 3 (2025) 22(2) TDM.

In the article titled Regional Integration in Africa - The Role of the AfCFTA in Advancing Political Integration, Athanasios P. Mihalakas & Bashar Malkawi examine the AfCFTA not merely as a trade agreement designed to deliver economic benefits but as a potential catalyst for broader regional and political integration across the continent. The authors begin by highlighting Africa's historical underperformance in spite of its abundant natural resources and favourable demographic outlook, noting that regional cooperation through the AU and various RECs has long been pursued to address these developmental challenges. They position the AfCFTA within the context of such efforts, including earlier initiatives like the COMESA-EAC-SADC Tripartite Free Trade Area (TFTA), suggesting that it may be the most ambitious project to date. Rather than focusing on well-established economic gains such as tariff reductions, trade facilitation, and economies of scale, the article advances the thesis that the AfCFTA could contribute to the political integration of African states. To support this, the authors first analyse the current political and legal frameworks within the AU and assess how far existing regional and political integration efforts have progressed. They then evaluate the AfCFTA itself, exploring whether it has the structural capacity and political momentum to promote further regional and, ultimately, political integration. In their final analysis, the authors assess the feasibility of realising such integration through the AfCFTA. While acknowledging that it remains too early to draw definitive conclusions, Mihalakas and Malkawi argue that the AfCFTA - particularly through its emphasis on forming a customs union, advancing a common market, and establishing a pan-African dispute resolution system - may be instrumental in reinforcing regional solidarity and laying the groundwork for eventual political unification within the AU framework.

In the article titled AfCFTA: Legal Considerations and Implications on Africa's Investment Practice with Third Countries, Ahmed Yasin Jelle & Benjamin K. Ng'eno explore the impact of the AfCFTA on the investment relationships between AU member states and external, non-African partners. The authors explain that while the AfCFTA is primarily designed to boost intra-African trade by harmonising trade and investment rules across the continent, it simultaneously allows member states a degree of autonomy in conducting their economic affairs with third countries. The article focuses on key legal provisions within the AfCFTA's protocols, particularly the MFN clause and the Denial of Benefits clause, assessing how these may influence or constrain investment practices involving third countries. Jelle and Ng'eno examine how these provisions might affect the consistency and direction of Africa's external investment relationships under the new AfCFTA framework. In addition to this legal analysis, the authors undertake a comparative review of how different RECs within Africa have historically managed their investment ties with third countries. Through this comparison, the article contributes to the broader discourse on how member states may need to align or reform their investment practices as the AfCFTA is implemented. Ultimately, Jelle and Ng'eno highlight the need for careful legal and policy consideration to ensure that Africa's engagement with external partners remains coherent and supportive of the AfCFTA's broader integration goals.

In the article titled The Investment Protocol to the Agreement Establishing the African Continental Free Trade Area: An Innovative Instrument that Fits Africa's Needs, Mohannad A. El Murtadi Suleiman examines the Investment Protocol under the AfCFTA as a forward-looking legal framework tailored to the continent's development priorities. The author begins by explaining that the overarching objective of the AfCFTA is to enhance intra-African trade and attract foreign investment while safeguarding the ability of African states to pursue national policy objectives and SDGs. Suleiman highlights that the Investment Protocol forms a critical component of this effort, notably through its proposal for a dedicated annexe on ISDS. Although this annexe remains under negotiation, a preliminary draft has been made publicly available. The article provides a detailed analysis of the protocol's substantive provisions, comparing them with other recent African initiatives on investment governance, including efforts aimed at reforming traditional BIT models. Further, the author addresses the practical implications of the protocol's implementation, particularly in light of existing investment protection regimes across the continent. Suleiman argues that the harmonisation of new AfCFTA rules with domestic laws will be crucial to achieving coherence and legal certainty for investors and states alike. Finally, the article scrutinises the draft annexe on ISDS, identifying areas of potential conflict between its current provisions and the legal and policy frameworks already operating in several African jurisdictions. Through this analysis, Suleiman underscores the need for careful refinement of the annexe to ensure alignment with Africa's broader investment reform agenda.

In the article titled A Critical Appraisal of the Pan-African Investment Code's Influence on the AfCFTA Investment Protocol, Victor Oluwatomiwa Adenekan offers a detailed examination of the extent to which the PAIC has shaped the formulation of the AfCFTA Investment Protocol. The author explains that the PAIC was developed by the AU Commission as a non-binding yet strategic framework intended to guide the unification of Africa's disparate investment regulatory systems and promote cross-border investment. Adenekan notes that during the early stages of the AfCFTA Investment Protocol's development, there were suggestions that it might be modelled on the PAIC. However, when the protocol was formally adopted by the AU Heads of State on 19 February 2023, no explicit reference was made to the PAIC as a guiding framework. The article, therefore, aims to investigate whether the PAIC nonetheless exerted an implicit influence on the substance of the AfCFTA Investment Protocol. Through a close textual comparison of the two instruments, the author evaluates the degree of conceptual and normative convergence between them. Adenekan argues that while the PAIC is not legally binding, its significance as a model instrument for regional integration makes it a valuable benchmark for assessing the coherence and ambition of the AfCFTA's investment regime. The article further contends that analysing the alignment between the PAIC and the AfCFTA Protocol sheds light on broader efforts to harmonise Africa's fragmented investment landscape. Finally, the author emphasises that understanding this relationship is critical for policymakers, scholars, and other stakeholders engaged in African economic integration. By mapping the PAIC's influence, Adenekan provides insights into how both instruments can be strategically aligned to enhance their collective contribution to regional investment governance and economic development.

In the article titled An Examination of the Protection of Legitimate Expectation in the Draft Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area (AfCFTA), Babarinde Micah explores the legal consequences of omitting the Fair and Equitable Treatment (FET) standard from the Draft Investment Protocol's proposed "Administrative and Judicial Treatment Clause" (AJT) clause. The article focuses specifically on the protection of investors' legitimate expectations- an important element traditionally grounded in the FET standard. Micah begins by noting that in many investment arbitration cases, investors have invoked legitimate expectations to challenge tax or regulatory changes that undermine earlier state assurances. Where states have promised legal or fiscal stability - through contract stabilisation clauses, laws, or formal undertakings - investors often claim that such commitments created reasonable expectations that the state is bound to respect. The doctrine operates analogously to estoppel in contract law, and tribunals have routinely recognised it as a key subcomponent of the FET obligation. However, the author highlights that the Draft Investment Protocol to the AfCFTA deviates from this standard practice. Instead of including the traditional FET clause, the Draft Protocol proposes a new formulation under the AJT clause, which appears to exclude explicit reference to FET. This shift raises a significant question: can the protection of legitimate expectations still be enforced under the new treaty language? To answer this, Micah analyses the doctrinal foundations of legitimate expectation and its relation to broader principles of state conduct and investor protection. He examines how the AJT clause may be interpreted, both in light of existing arbitral jurisprudence and in the context of the Protocol's broader structure and objectives. While the absence of FET may signal a move away from investor-centric protections, the article argues that some room may still exist for investors to invoke legitimate expectations, especially if host state conduct is sufficiently specific, clear, and relied upon in good faith. The article concludes by calling attention to the legal ambiguity created by this drafting choice and urges policymakers to clarify whether and how investor expectations will be protected under the AfCFTA framework. Such clarification is vital to ensuring legal certainty, balancing host state regulatory autonomy with investor confidence, and maintaining Africa's credibility in the international investment landscape.

In the article titled Bilateral Investment Treaties and Intra-African Trade: Implications for the African Continental Free Trade Agreement, Patrick Efe Ejumedia & Isaac Chii Nwaogwugwu examine how the structure and content of BITs concluded by African countries influence the goals of the (AfCFTA) Agreement, particularly in relation to intra-African trade and industrial development. The article begins by highlighting the paradox that, although African states have increasingly adopted BITs as a strategy to attract FDI and stimulate trade, intra-African trade volumes remain low. This apparent contradiction prompts a closer look at the terms of these BITs, especially in light of AfCFTA's core objectives: to deepen regional trade, transform primary sectors, and diversify exports toward manufactured goods. The authors focus their analysis on BITs signed by African states with non-African partners between 1960 and 2018. Using descriptive statistical methods, they identify a particular trend: BITs that strongly emphasise the national treatment clause - which obliges host states to treat foreign investors no less favourably than domestic ones - can inhibit the growth of local industries. Such provisions, the authors argue, limit the ability of African governments to implement industrial policies that support local enterprises, stifling domestic value chains and impeding structural transformation. In this context, the article raises important questions about the compatibility of conventional BIT provisions with AfCFTA's developmental ambitions. While the AfCFTA aspires to foster regional production networks and intra-African supply chains, many existing BITs inadvertently undermine these goals by restricting policy space for states to prioritise local content and support domestic firms. As a policy recommendation, Ejumedia and Nwaogwugwu propose a shift in the BIT negotiation strategy. Future BITs, they argue, should either omit the national treatment clause or, at a minimum, include strong local content requirements - such as the preferential use of domestically produced materials and intermediate goods. Such provisions would help create meaningful linkages between foreign investment and local industry, stimulate industrial capacity, and ultimately enhance the volume and quality of intra-African trade under the AfCFTA framework. In conclusion, the article calls for a more development-sensitive approach to IIAs, aligning them with the broader objectives of African economic integration and sustainable industrialisation .

In the article titled Jurisdictional Issues in International Trade and Investment Disputes under the AfCFTA Framework: Lessons from Selected Cases on Cross-Border Disputes, Rebecca Ebokpo, Raymond Ofagbor, Chijioke Ochogwu, & Oluwatosin Fajolu examine the creation of the AfCFTA as the largest single trade area globally by number of participating countries and population. The article explains that the AfCFTA Agreement is poised to substantially increase intra-African trade and encourage significant investments. This growth will inevitably lead to a corresponding increase in trade and investment-related disputes. To address this, state parties have agreed on a DSP as well as a Protocol on Investments, which formally provides a DSM for resolving state-to-state disputes. However, the authors note that the actual resolution of disputes under these protocols has yet to commence, and there remains uncertainty regarding the treatment of jurisdictional issues. The article highlights that jurisdiction is a threshold issue, and a lack of jurisdiction could hinder the effectiveness of the AfCFTA's dispute settlement provisions. The authors analyse how specific jurisdictional issues - including the effect of illegality or corruption on arbitral tribunal jurisdiction, the impact of invalidity of the underlying contract, the effect of jurisdiction exclusion clauses, and the choice of law - have been treated in selected trade and investment dispute cases. These issues are examined in the context of the AfCFTA and its protocols, with the purpose of formulating salient recommendations.

In the article titled Treaty Conflicts and the Competing Jurisdiction of International Arbitration Tribunals in Africa. The OHADA and African Continental Free Trade Agreement Arbitration Tribunals - Some Thoughts!, Takem Enaw explores the jurisdictional challenges arising from overlapping arbitration frameworks in Africa. The article focuses on Article 27:1 of the DSP, which allows state parties to resolve trade disputes through arbitration forums operating under rules and procedures distinct from those of the AfCFTA's Dispute Settlement Body (DSB). Such forums may include ad hoc tribunals or institutional tribunals with their own regulatory frameworks. The central issue addressed is the potential conflict when the rules and procedures of a non-DSB tribunal contradict those of the DSB, thereby possibly undermining the DSB's authority to enforce awards made by these other tribunals under the DSP. This question is critical to understanding the compatibility of the AfCFTA framework with preexisting regional agreements. The article examines this problem specifically in relation to the OHADA institutional arbitral rules, analysing the conflict resolution provisions within both the AfCFTA and OHADA frameworks.

In the article titled Investor-State Dispute Settlement Between the Eurasian Economic Union and African Union , Roman Zykov examines the evolving economic relationship between the Eurasian Economic Union (EAEU) and the AU amid a broader global shift from globalisation to regionalisation. The article highlights that despite trends of deglobalisation, foreign trade between the EAEU and AU countries increased significantly - by 60% - between 2015 and 2022, reaching nearly USD 22 billion. During this period, exports from the EAEU to AU markets grew by 74%, while imports from the AU to the EAEU increased by 15.5%. It is widely anticipated that trade between these two regional blocs will continue to expand in the future. Given this growth, the article underscores the substantial potential for increased direct investment between the EAEU and AU, with investment protection mechanisms playing a crucial role. Such mechanisms can encourage diversified investment portfolios by motivating businesses across both regions to explore new opportunities, which in turn supports economic diversification and reduces dependence on specific sectors or markets. By safeguarding property rights, providing dispute resolution avenues, and ensuring fair treatment, these frameworks lower perceived investment risks and attract capital flows from both unions. The article further notes that the intra-regional investment protection systems within the EAEU and the AU have established relatively homogeneous investment regimes within their respective blocs. It suggests that a similar integrated approach could be adopted for an EAEU-AU investment framework. A foreign investment treaty between the EAEU and AU could offer uniform investment protections across all member states, potentially fostering increased investment flows, deeper economic cooperation, and strengthened trade relations between the two unions.

May 2025