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15 - No Lessons from the Crises in the International Trade and Investment Dispute Settlement Mechanisms: The African Continental Free Trade Area

from Part IV - Regional Approaches for International Economic Dispute Settlement

Published online by Cambridge University Press:  07 August 2021

By
Malebakeng Forere
Edited by
Manfred Elsig ,
Rodrigo Polanco  and
Peter van den Bossche
Manfred Elsig
Affiliation:
Universität Bern, Switzerland
Rodrigo Polanco
Affiliation:
Universität Bern, Switzerland
Peter van den Bossche
Affiliation:
Universität Bern, Switzerland
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Summary

In recent years, the international dispute settlement mechanisms of both trade and investment, which were regarded as hallmark institutions in both fields, have never been tested as they are today. (On the trade side, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO), which functions through ad hoc panels and the standing Appellate Body (AB), is witnessing a gradual demise of its appeal mechanism. This is because of the United States’ dissatisfaction with the overall conduct of business by the AB. Specifically, the United States accuses the AB of bias, judicial activism, and non-adherence to time-frames for hearing appeals, among other things (Sen 2019). In protesting against the AB’s alleged mischievousness, the United States is blocking the appointment and renewal of term of the AB’s members. The WTO’s AB shut down on 11 December 2019, being left with only one member after two of its members’ terms expired. With this stalemate in mind, countries are likely to resort to preferential trade agreements (PTA) in order to settle their disputes while those that are negotiating new PTAs will likely be influenced by the AB stalemate in constituting their dispute settlement chapters in their new agreements. Indeed, this has happened with the PTAs that were adopted during and after the time that the WTO Agreements were negotiated – the dispute settlement chapters mirror that of the WTO because it was believed to be an ideal system at the time. Equally, the misfortunes of the AB will likely be considered in the constitution and working of the existing and future PTAs’ dispute settlement institutions.

Type
Chapter
Information
International Economic Dispute Settlement
Demise or Transformation?
 , pp. 406 - 441
Publisher: Cambridge University Press
Print publication year: 2021

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References

References

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Conventions and Treaties

Agreement establishing the African Continental Free Trade Area, signed 21 March 2018 at Kigali.

Brazil – Angola Cooperation and Facilitation Investment Agreement of 2015.

Brazil – Mozambique Cooperation and Facilitation Investment Agreement (2015).

Convention on the Settlement of Investment Disputes between States and Nationals of Other States (International Centre for Settlement of Investment Disputes [ICSID]) 575 UNTS 159 (1965).

East African Community Protocol on Customs Union adopted in March 2004, entered into force in 2005.

East African Community Model Treaty of 2016.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted 10 June 1958, UNTS 330.

UNCITRAL Possible Reforms of Investor–State Dispute Settlement, A/CN.9/WG.III/WP.

COMESA Investment Agreement, signed 23 May 2007.

ECOWAS Supplementary Act on Investment, A/SA.3/12/08, 19 December 2008 and entered into force 19 Jan 2009.

Possible Reform of Investor–State Dispute Settlement (ISDS) Submission from the Government of Morocco, A/CN.9/WG.III/WP. 161 (4 March 2019), [Hereinafter Morocco’s Submission]

Possible Reform of Investor–State Dispute Settlement (ISDS) Submission from the Government of South Africa, A/CN.9/WG.III/WP. 176, 17 July 2019.

South Africa Protection of Investment Act 22 of 2015.

Southern African Development Community Treaty signed 17 August 1992.

Zimbabwe Statutory Instrument 64 of 2016.

Cases

Alcon International v Standard Chartered Bank of Uganda and Others, Case No. 6 of 2010.

British American Tobacco v. The Government of Uganda, http://eacj.eac.int/?p=3490. Accessed 1 September 2019.

Canada – Measures Affecting the Sale of Gold Coins (1985) L/5863 (unadopted)

Egypt – Anti-Dumping Duties on Matches from Pakistan, WT/DS327 (2005).

Egypt – Import Prohibition on Canned Tuna with Soybean Oil, WT/DS205 (2000)

Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211 (2000).

Egypt – Measures Affecting Imports of Textile and Apparel Products, WT/DS305 (2003),

Mbugua Mureithi Wa Nyambura v. The Attorney General of the Republic of Uganda and the Attorney General of the Republic of Kenya, Case No. 11 of 2011 (EAC).

Mike Campbell (Pvt) Ltd and Others v. Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008)

Modern Holdings (E.A) Limited v. Kenya Ports Authority Ref1/2008 (EAC).

Morocco – Provisional Anti-Dumping Measures on School Exercise Books from Tunisia, WT/DS555 (2018).

Morocco – Definitive Anti-Dumping Measures on School Exercise Books from Tunisia, WT/DS578 (2019).

Morocco – Anti-Dumping Measures on Certain Hot-Rolled Steel from Turkey, WT/DS513 (2018).

Polytol Paints and Adhesives Manufactures v. Mauritius, Ref No.1 of 2012 (EAC).

SM Mohochi v. The Attorney General of the Republic of Uganda, C ase No. 5 of 2011 (EAC).

South Africa – Anti-Dumping Duties on Certain Pharmaceutical Products from India, WT/DS168 (1999).

South Africa – Definitive Anti-Dumping Measures on Blanketing from Turkey, WT/DS288 (2003).

South Africa – Anti-Dumping Measures on Uncoated Woodfree Paper from Indonesia, WT/DS374 (2008).

South Africa – Anti-Dumping Duties on Frozen Meat of Fowls from Brazil, WT/DS439 (2012).

South Africa – Provisional Anti-Dumping Duties on Portland Cement from Pakistan, WT/DS500.

The East African Law Society v. The Secretary General of the East African Community, Case No. 1 of 2011 (EAC).

The East African Centre for Trade Policy and Law v. The Secretary General of the East African Community, Case No. 9 of 2012 (EAC).

United States – Measures Affecting the Importation, Internal Sale and Use of Tobacco DS44/R (1994).

United States – Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-Turtle), WT/DS58/R (1996).

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