The AfCFTA’s Success Depends on Effective Dispute Settlement Mechanisms for the Private Sector

Abstract

The state-to-state nature of the dispute settlement mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) could serve as a barrier to ensuring dispute resolution under this regional trade agreement. African countries’ low participation in trade dispute resolution at the World Trade Organization (WTO) and within their own regional economic communities (RECs) indicates that these countries either do not have the capacity to resolve trade issues through contentious litigation or those types of dispute settlement mechanisms are not suited to their needs. However, it is important that the AfCFTA ecosystem provides effective and efficient dispute settlement options for the commercial operators that will seek to take advantage of the benefits of the trade agreement. The AfCFTA non-tariff barrier (NTB) Online Monitoring Mechanism is a welcomed addition to the options available to the private sector. However, AfCFTA State Parties must resolve the complaints lodged on that platform swiftly and adequately. In the absence of continental or regional dispute resolution options, it is foreseen that domestic courts will play a large role in adjudicating AfCFTA-related disputes. Therefore, the options that State Parties could avail to private parties include establishing or capacitating commercial courts and arbitration centres to effectively adjudicate AfCFTA-related disputes. Africa, AfCFTA, dispute settlement, DSU, state-to-state, private sector, direct access, domestic courts, arbitration