Published 17 June 2021
The Dispute Settlement Mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) is established as a central element to provide security and predictability to the newly created regional trading system. Enacted to preserve the rights and obligations of State Parties to the Agreement and modelled after the dispute settlement system of the World Trade Organisation (WTO), the AfCFTA Agreement's Dispute Settlement Protocol (DSP) provides that the DSM is only accessible to States. This inter-state feature of the AfCFTA DSM is, however, seen as a setback when compared to the access private parties have to the courts/tribunals of certain regional economic communities. However, the AfCFTA dispute settlement mechanism, while compulsory, is not exclusive. Article 3(2) of the DSP, which provides 'special and additional rules and procedures on dispute settlement' opens an ocean of possibilities. This paper explores these possibilities, including, but not limited to, whether and to what extent, Article 3(2) can also be construed as granting private parties access to the (trade) dispute settlement procedure(s).
This paper will be part of the second TDM Special Issue on "The African Continental Free Trade Agreement (AfCFTA)". More information here www.transnational-dispute-management.com/news.asp?key=1809