Abstract

The African Continental Free Trade Area (AfCFTA) creates the largest single trade area in the world in terms of the number of participating countries and population. The AfCFTA Agreement is on track to significantly increase intra-African trade and encourage significant investments. This will undoubtedly result in a concomitant increase in trade and investment-related disputes. To accommodate this expected outcome, state parties have agreed to a Protocol on Rules and Procedures on the Settlement of Disputes (Disputes Settlement Protocol) as well as a Protocol on Investments, which formally provides a dispute settlement mechanism for resolving state-to-state disputes.

However, the resolution of disputes further to the provisions of these protocols has yet to commence, and there is some uncertainty regarding how jurisdictional issues will be treated. Jurisdiction is a threshold issue, and the absence of jurisdiction would hamper the effectiveness of the dispute settlement provisions of the AfCFTA and its protocols. This article proactively examines how specific jurisdictional issues, such as the effect of illegality/corruption on the jurisdiction of the arbitral tribunal, the effect of the invalidity of the underlying contract, the effect of exclusion of jurisdiction clauses, and choice of law, have been treated in some selected cases on trade and investment disputes. We will examine these issues in light of the provisions of the AfCFTA and its protocols with a view to making salient recommendations.

This paper will be part of the third TDM Special Issue on "The African Continental Free Trade Agreement (AfCFTA)". More information here www.transnational-dispute-management.com/news.asp?key=1809