The AfCFTA’s Dispute Settlement System and Its Innovations: Lessons from the WTO

This article examines the African Continental Free Trade Area Agreement’s (AfCFTA’s) dispute settlement system (AfCFTA DSS) and its innovations. The innovations refer to changes in the AfCFTA DSS that distinguish it from the World Trade Organization dispute settlement system (WTO DSS). This article discusses four innovations: the obligation to fill Appellate Body (AB) vacancies, a sequencing arrangement, the AfCFTA AB and the Panel’s authority to interpret the AfCFTA and disputing parties’ responsibility for panellists’ remuneration. This article makes three main arguments. First, Good Office, Conciliation and Mediation (GOCM) are most suitable for resolving disputes under the AfCFTA DSS. The flexibility to use GOCM at any time and appoint independent individuals, including eminent persons, appeals to African states’ preference for using eminent persons to facilitate dispute settlement. Second, AfCFTA innovations might address challenges encountered under the WTO DSS, particularly the AB crisis, that is non-functioning AB, and Sequencing issue, from occurring under the AfCFTA DSS. However, some of the innovations expose the AfCFTA DSS to other challenges, including judicial activism and concerns over panellists’ independence. The amendment of the AfCFTA DSP to incorporate non-ambiguous provisions that address the challenges constitutes one possible solution. Third, the role of the AfCFTA DSS in facilitating the implementation of the AfCFTA, providing uniform interpretation of intra-African trade law and an opportunity to develop technical trade expertise constitute reasons why AfCFTA Parties should use the AfCFTA DSS.