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
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