Wamkele Mene
The Dispute Settlement Body (DSB) of the African Continental Free Trade Area (AfCFTA) has come into office.
DSB was inaugurated on Wednesday, April 28, 2021.
Speaking at the virtual inaugural meeting of the DSB, the Secretary-General of AfCFTA, Wamkele Mene, indicated that “The DSB is a key component of the dispute settlement mechanism of the AfCFTA as set out in the Protocol on Dispute Settlement.”
He stated that the AfCFTA legal team “will set the standard for all future DSBs, all the way to 2063, the last year of the African Union’s vision of “the Africa we want”.”
Mr Mene explained that the DSB was the organ of the AfCFTA that will be responsible for the surveillance of implementation of the commitments made by State Parties over a range of different areas including market access, investment, intellectual property rights and implementation of the free trade agreement.
This body will do this through considering disputes brought to it by State Parties, referring them to panels, and adopting rulings and recommendations of panels and the Appellate Body, according to him.
“Where appropriate it is this body that will sanction non-implementing State Parties for non-compliance, not unilaterally but through multilateral African action. The Dispute Settlement Body is thus the organ of the AfCFTA that will cement the rule of trade law for Africa,” Mr. Mene added.
The Secretary-General said “The work we do here may seem dull and procedural, perhaps even inconsequential, particularly in those periods where there may be no disputes to consider, but it is a form of quiet and patient scaffolding. It is fundamental building work that will entrench predictability and transparency into the rules-based architecture of the AfCFTA. Indeed, it is the decisions made in this forum, by this body, it is the robustness of our panels, it is the fairness of our two-tier system of review, and it is the automation of our DSB decision-making that will make it crystal clear – both to ourselves and the world – that truly, Africa is open for business.”
“You are all aware that in our negotiations, we were inspired by the dispute settlement mechanism of the World Trade Organization (WTO), as set out in its Dispute Settlement Understanding. But we have not simply copied and pasted from the WTO. Rather, we have learned from the mistakes of the WTO, and tried, in our own way, to rectify some troubling elements of that system to make it suit our purpose, and fit for Africa.”
“You may be aware that the Appellate Body, which is the WTO’s tribunal of final instance, has been rendered ineffective through the simple refusal by one WTO Member to appoint or renew the terms of Appellate Body Members. We have fixed that by making sure that no one State Party can block the appointment of our own African Appellate Body members.”
“We have also fixed what in the WTO is called the sequencing problem. As early as the Hormones and Bananas dispute in 1999, it was realised that the language of the Dispute Settlement Understanding allowed parties to request retaliation, or the suspension of concessions, even before a panel had determined whether a disputing WTO Member had fully implemented a panel or Appellate Body ruling. To address this lacuna, WTO Members then entered into byzantine “sequencing agreements” to fill the gaps. We have addressed this in the Protocol on Dispute Settlement by simply removing fixed time frames for retaliation, thus recognising that a panel may first need to assess whether implementation has taken place before our Dispute Settlement Body can allow retaliation.”
“Above all, although the WTO’s DSU includes dispute resolution mechanisms such as good offices and conciliation, WTO Members have not resorted to these as frequently as they have to the adjudicative panel and Appellate Body process. Indeed, as the WTO dispute settlement system comes under severe stress due to tensions between its largest trading powers, WTO Members are increasingly looking to the alternative offered by arbitration to resolve single issue disputes.”
“I want to assure State Parties that the AfCFTA places equal value on all forms of dispute resolution. All the means to resolve disputes that are set out in the Protocol on Dispute Settlement – from good offices, conciliation, mediation, and arbitration – will be made available to State Parties. We are currently drafting a Secretariat Concept Note on these matters, with some thoughts on an “early warning system” to avoid disputes flaring out into open hostility. So, I want to confirm that I will be proactive in helping State Parties to resolve disputes as soon as they arise. To this end, please know that my door is always open to those State Parties who wish to use my good offices in the resolution of any disputes that may arise between them.”
He stressed that it was imperative that the Agreement Establishing the AfCFTA be implemented so that the AfCFTA gives confidence to both domestic and foreign investors. It is imperative that we anchor ourselves in the predictability and the transparency of a rules-based system as we imagine into being the Africa we want.
“The Africa we want is one in which promises are fulfilled and legal commitments are honoured. The Africa we want is one in which the work we do today is done always with an eye for tomorrow. Just like the sommeliers who lay down wine that they know they are not going drink, or the grandparents who plant trees whose fruit will be feasted on by their grandchildren, the work we are doing here is not for our generation, but the one to come, and the ones after that.”
“The stereotype of African trade pacts and other agreements is that we are all talk and no action. That we don’t walk the walk. I want to assure you that in this forum, the AfCFTA will talk the talk, because, after all, disputes are resolved through dialogue, through engagement and active diplomacy. But we will also walk the walk, and indeed, we will run the run.”
“And we will go the distance, all the way to 2063, until we achieve the Africa we want.”
Ghana’s Attorney General and Minister of Justice, Godfred Dame, on his part, explained that a recent World Bank Report estimates that, if fully implemented fully, the AfCFTA could boost regional income by 7% – or $450 billion.
“The same report also suggests that full implementation of the AfCFTA could speed up wage growth, especially for young people and women, and that it has the potential to lift 30 million people out of extreme poverty by the year 2035,” he said.
“It is a particular, and, I must say, very personal honour, that the AfCFTA Secretariat has found its home in Accra, Ghana,” he added.
“As the Government of Ghana, we intend to honour our commitment to this extraordinary enterprise,” he said.
“Indeed, those who watch television or follow the news in Ghana will know that our country was one of the first to send out a consignment of goods traded under the disciplines of the AfCFTA just after the commencement of trading on 1 January 2021.”
“It is my hope that other AfCFTA Members remain just as committed both to honouring their commitments and to taking advantage of the many market access opportunities provided by the AfCFTA.”
“The negotiators of the Agreement who negotiated on the part of their governments did their part – and will continue to do their part – to make the AfCFTA dream a reality.”
“The economists and the many trade policy experts in different areas who made various recommendations to their governments have also played a key role, and will continue to do so.”
“This inaugural meeting of the DSB signals that it is now the time for the lawyers and other legal experts to do their part to make the AfCFTA dream a reality.”
“Africa will not have a successful and fully implemented free trade area without African countries, State parties of the AfCFTA, committing to being bound by the rule of law. And it is for this reason that the work of this august DSB will be vital to the successful implementation of the Agreement Establishing the AfCFTA,” according to him.
I have been thinking about the synergies between how the rule of law is enforced in domestic jurisdictions and in international law, he explained.
“I am aware of the unique nature of the enterprise you have created here, but I am also struck by how familiar some of its elements are.”
“Where we have constitutions in domestic legal jurisdictions that sets out the rights of those who are governed, and the obligations of those who govern, the AfCFTA has an overarching Agreement that sets out both the rights and obligations of its State Parties.”
“Where we have courts of first instance in domestic jurisdictions, the AfCFTA has panels that can hear trade disputes brought by aggrieved State parties.”
” Where we have appellate review courts such as the High Court and Supreme Court to hear appeals on judgements from district courts and circuit courts, the AfCFTA has an Appellate Body that reviews the reports prepared by panels,” he added.