A critical assessment of the relationship between the AfCFTA and World Trade Organisation dispute settlement mechanisms, in light of the Conflict of Jurisdiction
- Nhemachena, Tichakunda Charles
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
An analysis of the countervailing measures used to address the anti-competitive effects of Government subsidies in the African Continental Free Trade Area
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
Opening up global food trade to developing countries: an evaluation of the World Trade Organisation's agreement on sanitary and phytosanitary measure
- Authors: Nyatsanza, Sharon
- Date: 2013
- Subjects: World Trade Organization , Food contamination , Food handling -- Safety measures
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/27413 , vital:67294
- Description: Food safety and consumer protection has been a major concern of regulators since the 12th century. Sanitary and Phytosanitary (SPS) measures were therefore introduced to protect human, animal and plant safety. With the expansion of international trade came the increase in the use of SPS measures. However these increases in the use of SPS measures were accompanied with their misuse for protectionist purposes. SPS measures which had been created for legitimate purposes quickly became significant barriers to trade. The World Trade Organisation (WTO) adopted the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) as a mechanism to regulate the use of SPS measures and avoid their potential use as protectionist tools. Trade liberalization and market access has been a primary aim of the WTO, therefore in principle the SPS Agreement is supposed to open up global food trade for all countries.Apart from opening up global food trade, another purpose of the SPS Agreement was to protect the developing countries, accommodate their special needs and in turn promote their economic development. Developing countries are heavily dependent on global food trade for their economic development. However developing states can only benefit from global food trade if they comply with SPS standards set in the importing countries. Considering their reliance on the agro – food sector the economic development of developing states is heavily reliant on the successful implementation of the SPS Agreement. According the SPS Agreement must avoid the use of illegitimate SPS measures and promote market access. It is therefore crucial that the SPS Agreement be analysed to determine whether its text, application and or interpretation satisfies the objective of opening up global food trade especially for developing states. The objective is to show the significance of a regulatory framework that is as much as possible devoid of any loopholes or shortcomings, which could frustrate the developmental interests. Inappropriate accommodation of developmental interests in the SPS Agreement could have adverse impacts on the development prospectus of developing countries. , Thesis (LLM) -- Faculty of Law, 2013
- Full Text:
- Date Issued: 2013
- Authors: Nyatsanza, Sharon
- Date: 2013
- Subjects: World Trade Organization , Food contamination , Food handling -- Safety measures
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/27413 , vital:67294
- Description: Food safety and consumer protection has been a major concern of regulators since the 12th century. Sanitary and Phytosanitary (SPS) measures were therefore introduced to protect human, animal and plant safety. With the expansion of international trade came the increase in the use of SPS measures. However these increases in the use of SPS measures were accompanied with their misuse for protectionist purposes. SPS measures which had been created for legitimate purposes quickly became significant barriers to trade. The World Trade Organisation (WTO) adopted the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) as a mechanism to regulate the use of SPS measures and avoid their potential use as protectionist tools. Trade liberalization and market access has been a primary aim of the WTO, therefore in principle the SPS Agreement is supposed to open up global food trade for all countries.Apart from opening up global food trade, another purpose of the SPS Agreement was to protect the developing countries, accommodate their special needs and in turn promote their economic development. Developing countries are heavily dependent on global food trade for their economic development. However developing states can only benefit from global food trade if they comply with SPS standards set in the importing countries. Considering their reliance on the agro – food sector the economic development of developing states is heavily reliant on the successful implementation of the SPS Agreement. According the SPS Agreement must avoid the use of illegitimate SPS measures and promote market access. It is therefore crucial that the SPS Agreement be analysed to determine whether its text, application and or interpretation satisfies the objective of opening up global food trade especially for developing states. The objective is to show the significance of a regulatory framework that is as much as possible devoid of any loopholes or shortcomings, which could frustrate the developmental interests. Inappropriate accommodation of developmental interests in the SPS Agreement could have adverse impacts on the development prospectus of developing countries. , Thesis (LLM) -- Faculty of Law, 2013
- Full Text:
- Date Issued: 2013
Theories of international cooperation and the GATT/WTO regime: beyond the dichotomy of rational and cognitive approaches
- Authors: Nischalke, Tobias Ingo
- Date: 1997
- Subjects: General Agreement on Tariffs and Trade (Organization) , World Trade Organization , International trade
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2817 , http://hdl.handle.net/10962/d1003027 , General Agreement on Tariffs and Trade (Organization) , World Trade Organization , International trade
- Description: This thesis aspires to assess the explanatory value of different theories of international cooperation for the case of the world trade regime of GATT/WTO and subsequently strives to reach a satisfactory interpretation of the instance of cooperation. The world trade regime embarked on a process of transformation with the signing of the Marrakech Agreements of 15th April 1994. The event marked the conclusion of the Uruguay Round and, with the establishment of the WTO, the beginning of a new era for the world trade regime. The thesis endeavours to establish the substance of the regime change from GATT to the WTO. It outlines the most significant provisions of the agreement of the Uruguay Round and, subsequently, analyses the change on the level of regime norms underlying the world trade regime. The analysis of regime norms yields insights about the essence of the regime transformation and as to what factors proved to be conducive to cooperation in the sphere of the world trade. The GATT/WTO regime with its extended scope and more sophisticated institutional structures can be regarded as a prime example of successful cooperation. However, the prospects for cooperation between states in an anarchic environment without central authority for enforcement are the subject of a remarkably intense scholarly debate. Therefore it is worthwhile to examine which theoretical framework proves to be most adept at elucidating the circumstances of this instance of cooperation. This thesis applies different theories of international cooperation to the case of the GATT/WTO regime. While a large array of rational theories attempts to explain cooperation from a perspective which focuses on interests and capabilities, a different strand of theories, that of cognitive approaches, emphasizes the paramountcy of ideas and beliefs as variables which explain cooperation. They endogenize the process of interest formation. This thesis seeks to synthesise the strong points of rational and cognitive approaches and thus to reconcile the divergent schools of thought. Its further purpose is to set out factors which are conducive to cooperation.
- Full Text:
- Date Issued: 1997
- Authors: Nischalke, Tobias Ingo
- Date: 1997
- Subjects: General Agreement on Tariffs and Trade (Organization) , World Trade Organization , International trade
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2817 , http://hdl.handle.net/10962/d1003027 , General Agreement on Tariffs and Trade (Organization) , World Trade Organization , International trade
- Description: This thesis aspires to assess the explanatory value of different theories of international cooperation for the case of the world trade regime of GATT/WTO and subsequently strives to reach a satisfactory interpretation of the instance of cooperation. The world trade regime embarked on a process of transformation with the signing of the Marrakech Agreements of 15th April 1994. The event marked the conclusion of the Uruguay Round and, with the establishment of the WTO, the beginning of a new era for the world trade regime. The thesis endeavours to establish the substance of the regime change from GATT to the WTO. It outlines the most significant provisions of the agreement of the Uruguay Round and, subsequently, analyses the change on the level of regime norms underlying the world trade regime. The analysis of regime norms yields insights about the essence of the regime transformation and as to what factors proved to be conducive to cooperation in the sphere of the world trade. The GATT/WTO regime with its extended scope and more sophisticated institutional structures can be regarded as a prime example of successful cooperation. However, the prospects for cooperation between states in an anarchic environment without central authority for enforcement are the subject of a remarkably intense scholarly debate. Therefore it is worthwhile to examine which theoretical framework proves to be most adept at elucidating the circumstances of this instance of cooperation. This thesis applies different theories of international cooperation to the case of the GATT/WTO regime. While a large array of rational theories attempts to explain cooperation from a perspective which focuses on interests and capabilities, a different strand of theories, that of cognitive approaches, emphasizes the paramountcy of ideas and beliefs as variables which explain cooperation. They endogenize the process of interest formation. This thesis seeks to synthesise the strong points of rational and cognitive approaches and thus to reconcile the divergent schools of thought. Its further purpose is to set out factors which are conducive to cooperation.
- Full Text:
- Date Issued: 1997
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