Published 12 January 2023
This article critically addresses the substantial reproduction of the World Trade Organisation (WTO) 's dispute settlement mechanism in the recent AfCFTA's Dispute Settlement Protocol (hereinafter the 'DS Protocol' or the 'Protocol'). The work suggests that the concerns about the system's reproduction should be set aside. The WTO dispute settlement procedures and rules copied by the DS Protocol provide a more reliable guarantee that decisions and recommendations will effectively be carried out. This work advocates the revision of provisions - which seem to be carelessly copied into the DS Protocol from the WTO's dispute settlement system - concerning the adoption, enforcement, and monitoring of recommendations and decisions implemented in the AfCFTA. The work also advocates for clarification of other important issues and aspects of the DS Protocol, like restriction on 'forum shopping,' in so far as it may limit the access to the AfCFTA's dispute settlement mechanism, or the authorisation of the establishment of a panel without input from a political body like the AfCFTA Assembly or the AfCFTA Council of Ministers. It is also suggested that the review of the DS Protocol might usefully include the possibility for non-state actors - namely citizens or nationals of member states - to initiate a dispute against an AfCFTA member state. This inclusion would be of the utmost importance, considering that the fate of investor-state dispute settlements under the AfCFTA remains still unclear as negotiations for an AfCFTA Investment Protocol are proceeding with difficulties.
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