Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) is pleased to announce a call for papers for a special issue on the African Continental Free Trade Agreement ("AfCFTA").
In March 2018, members states of the African Union (AU) signed the African Continental Free Trade Area Agreement (AfCFTA) to implement a single continental market for goods and services and establish a continental customs union. With 54 signatories and a population of over 1.3 billion people, this agreement has been described as the largest trade agreement in terms of member States and population since the formation of the World Trade Organization (WTO). While the share of Africa’s intra-continental trade flows in the global trade has remained low, standing at a mere 2% in the global trade on average in the 2015-2017 period (against 47% for the Americas, 61% for Asia, 67%, the for Europe and 7% Oceania), intra-African trade and investment has great growth potential. The gap between Africa’s external and internal trade has been gradually bridged over the last three decades with the share of intra-continental imports in Africa’s total imports increasing from 5% in 1990 to 12% in 2017 (IMF 2019). According to the International Monetary Fund (IMF 2019), under the AfCFTA: "[t]he elimination of tariffs on intraregional trade is estimated to [further] increase trade in the region by about 15-25 percent over the medium term, whereas reducing nontariff barriers by half would more than double such effects."
The AfCFTA is expected to become fully operational in July 2020. Negotiations for the AfCFTA were first launched in 2015. The texts of the AfCFTA and its protocols on trade in goods, trade in services and on rules and procedures on the settlement of disputes were concluded in 2018. The Trade Protocol aims to foster domestic and foreign investment on the basis that a comprehensive Protocol on Trade in Goods will deepen economic efficiency and linkages, improve social welfare, progressively eliminate trade barriers, increase trade and investment with greater opportunities for economies of scale for the businesses of State Parties.
The AfCFTA recognizes the need to establish clear, transparent, predictable and mutually-advantageous rules to govern Trade in Goods and Services, Competition Policy, Investment and Intellectual Property among State Parties. The Agreement seeks to do so by resolving the challenges of multiple and overlapping trade regimes to achieve policy coherence, including relations with third parties. It also aims to contribute to the movement of capital and natural persons and facilitate investments building on the initiatives and developments in the State Parties and regional economic communities (RECs). Fifty-four of the 55 AU member states have signed the agreement establishing the AfCFTA, and 28 countries have ratified and deposited instruments of ratifications with the AU.
Implementation of the AfCFTA raises several transnational opportunities and challenges. Phase II negotiations for an Investment Protocol are ongoing and are based on the text of the 2016 Pan African Investment Code. African states have signed a total of 940 bilateral investment treaties (BITs) including 177 intra-Africa BITs. In comparison, there have only been seven publicly known intra African treaty-based investment arbitration cases. In addition to these BITs, regional investment agreements include the 2006 SADC Protocol on Finance and Investment, the 2007 COMESA Investment Agreement, the 2008 ECOWAS Supplementary Act on Investments, the 2018 ECOWAS Investment Protocol and the 2018 EAC Draft Investment Policy. In 2019, China and Mauritius completed negotiations for the first African - China FTA investment chapter. Although foreign direct investment on the continent is retracting, Africa remains one of the fastest-growing economic regions.
Building on previous issues of TDM which have focused on investment treaty arbitration and policy in the African context and FDI operations and investment disputes in the African extractive sector, the co-editors invite contributions to this special edition which critically examine the legal and normative implications of the AfCFTA. In line with the focus of TDM, this edition will focus broadly on Africanisation of international investment law and the role of the AfCFTA on global, national and sub-regional investment law making and dispute resolution. The following topics raise interesting points for discussion. We welcome submissions which address these and other relevant topics:
- The Pan African Investment Code (PAIC) as a model for negotiations on the Investment Protocol to the Agreement establishing the African Continental Free Trade Area
- Investment facilitation in Africa and negotiations on investment facilitation at the WTO
- Relationship between harmonisation of trade and investment rules
- Critical review of existing sub-regional investment agreements including:
- The Common Market for Eastern and Southern Africa (COMESA) Investment Agreement;
- The Economic Community of West African States (ECOWAS) Energy Protocol;
- The Agreement for Promotion, Protection and Guarantee of Investments among the OIC (Organisation of Islamic Countries) Member States;
- Unified Agreement for the Investment of Arab Capital in the Arab States;
- COMESA-EAC-SADC Tripartite Protocol on Investment;
- ECOWAS Supplementary Act on Investments;
- The ECOWAS Investment Code;
- Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) Treaty and Uniform Arbitration Acts;
- The Southern African Development Community (SADC) Model BIT Template.
- Investment treaty practice with non-member states and economic communities including:
- The European Union;
- The Eurasian Economic Union.
- The Multilateral Investment Guarantee Agency (MIGA), other political risk insurance/guaranty providers and settlement of disputes in Africa
- Cross border/multi-jurisdictional investments and investment arbitration in Africa
- The convergence or divergence of international trade and/or investment law trends in Africa and the Africanisation of international investment law
- Effect of the AfCFTA Investment Protocol on the outcome of the UNCITRAL Working Group III: Investor-State Dispute Settlement Reform
- Issues specific to Africa including corruption, sustainable development, competition, protection of the environment and resource nationalism
- Intra-African investment disputes involving African investors and respondent African states including:
- Kontinental Consulting Engineering v. Gabonese Republic, PCA Case No. 2015-25;
- SUDAPET v. South Sudan, ICSID Case No. ARB/12/26;
- Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2;
- Geftarail and AfricaRail v. Benin and Niger;
- Amaplat Mauritius Limited and Amari Nickel Holdings Zimbabwe Limited v. Chief Mining Commissioner and Zimbabwe Mining Development Corporation;
- Mozambique Channel Discovery, Ltd and Boulle Mining Group, Ltd. v. The Government of the Union of The Comoros.
- Specific investment arbitration cases involving African regional arbitration centres including:
- Mr. Josias Van Zyl (South Africa), (2) The Josias Van Zyl Family Trust (South Africa), (3) The Burmilla Trust (South Africa) v. The Kingdom of Lesotho;
- The Singapore Court of Appeal decision in Swissbourgh Diamond Mines (Pty) Ltd and others v. Kingdom of Lesotho;
- Getma International v. Guinea, ICSID Case No. ARB/11/29 & CCJA Case No. 001/2011/ARB;
- Benin Control v. Benin.
More details and contact information of the co-editors are available on the TDM website here
Article guidelines and sample papers available upon request.