African Continental Free Trade Area Agreement (AfCFTA)

Kenya’s negotiations with the United States while the African Union is in ongoing negotiations on a future agreement between African countries and the European Union that raises similar issues because of the upcoming expiration of the Cotonou Agreement, makes this an important period, perhaps a transitional moment in Africa’s trading relationship with the West. A lot is at stake and Kenya is right in the middle of it.

Harmonisation of private international law in the African Union is currently remarkably underdeveloped. Since harmonisation is indispensable for the planned economic integration, it is essential to pursue further developments. To conclude, harmonisation of private international law in the African Union is an affair to be closely followed.

Utilising interdisciplinary methodologies for IEL research in the African context is not without its challenges. Access to empirical data is still difficult. Meandering your way past the bureaucracy and protocols that ‘gatekeep’ vital information is also tricky. However, all these challenges and experiences all add up to our journey as researchers

This Symposium, and the contributions carry on the conversation by examining the ways in which the contributors have harnessed theory and method in their critical scholarship on IEL in Africa. Continuing to build the knowledge base on IEL that is both rigorous and relevant to Africa has a lot to do with the lens through which research work is conducted.

While the AfCFTA is most probably the next best thing in terms of economic benefits (for instance, huge trade volumes and larger financial flows) since states on the continent created the AU itself, it poses certain dangers. In particular, like SACU, the CCU envisaged in the AfCFTA Agreement will likely injure the economies of some of its member states. And, unless the AU delegates custom-design it carefully, bearing in mind the policy choices brought up in this piece and in older regional trade agreements, the CCU can prove prohibitively costly.

If Phase II negotiations on IP  will yield any positive results for West African Countries, and other regions, the discussion should begin at the regional level in ECOWAS. Finally, considering the ultimate goal of harmonising these structures on the continent (Article 3(L) Constitutive Act of the African Union), the AU’s representation is essential in these discussions, to ensure that their outcomes align with the goal of the Union.

A competition policy at the continental level is not only important to meet the objectives of the AfCFTA, but it will provide a forum to strengthen and develop existing competition regimes. The AfCFTA, creates a wide continental market and a competition policy will provide African countries with the power to police international anti-competitive conduct by pulling resources that will enhance global trade. However, for a competition policy to be effective, the AfCFTA must continue to build on the efforts made at the national and regional levels. Member States should take this opportunity and negotiate on the future continental competition policy taking into consideration the African markets and its role in global markets.

In order to address a scenario where a AfCFTA member might resort to the WTO and still want the dispute to be resolved under the AfCFTA’s dispute resolution protocol, then this article proposes that the latter Protocol should be amended to the effect that, matters raised in the WTO context and in AfCFTA’s context should be considered not to be the same.

Given the central relevance of TK to African countries, it is necessary to design effective mechanisms for its protection. One key rising trend in TK lawmaking is its incorporation in bilateral and free trade agreements.

Even setting aside funding issues, the failure to creatively blend the dispute settlement mechanisms that already exist at the sub-regional level with what has worked with disputes in the global trading system is perhaps the biggest handicap the new dispute settlement system established by the AfCFTA is likely to suffer. There is certainly no harm in trying to out this system, but because most of the experience and expertise in handling trade disputes and matters has been at the sub-regional level, the new AfCFTA Dispute Resolution Mechanism has a lot to learn from the sub-regional level.