Developing Guidelines to Facilitate the Operationalisation of ADR Provisions in the AFCFTA
Clinic: Graduate Institute, Fall 2021
Beneficiary: The Development and Rule of Law Programme (DROP)
Read the full report here.
The African Continental Free Trade Area (AfCFTA) provides for the Protocol on Rules and Procedures on the Settlement of Disputes to foster a predictable and accountable dispute settlement process. This is largely inspired by the World Trade Organisation’s (WTO) Dispute Settlement Mechanism (DSM), a model that African countries have almost entirely ignored since the WTO was established in 1995. However, Arts. 8 and 27 AfCFTA’s Protocol on Rules and Procedures on the Settlement of Disputes allow for disputing state parties to take advantage of more informal and ad hoc dispute resolution mechanisms such as good offices, mediation, conciliation, and arbitration. These alternative dispute resolution (ADR) provisions – if properly implemented – have the potential to address the inhibitors of African participation in formal dispute resolution.
The ADR provisions currently found in AfCFTA’s protocols do not go beyond the basic rights and obligations granting parties recourse to ADR and provide only skeletal procedural guidance. This report provides suggested operational guidelines that could be used to facilitate the practical use by Members of faster, flexible, and streamlined ADR provisions contained in AfCFTA’s Protocol on Rules and Procedures on the Settlement of Disputes.
These proposed guidelines are based primarily on various African ADR case studies, which include the ADR rules of the Common Market for Eastern and Southern Africa (COMESA) and the East African Community (EAC), as well as various domestic ADR guidelines found in Ghana, Kenya and South Africa. The selection and development of the guidelines were facilitated by interviews with several African ADR experts and practitioners, from which the best practices outlined below were derived.
Within Africa there is a need to balance procedural flexibility with sufficient clarity of certain procedures within ADR proceedings. Various traditional practices in African dispute settlement suggest that disputing Parties should be given autonomy to determine procedural elements through mutual agreement. This would include the composition of the arbitral tribunal or choice of mediator, the means of appointment of arbitrators or mediators, the means of removal, the use of alternative rules to govern proceedings, as well as the language of choice. However, where parties cannot agree on procedures, default stipulated procedural elements could be activated, including the use of a designated third party to assist the parties to use various forms of ADR. Additionally, it may be useful to provide procedural disciplines such as time schedules for procedural matters.
African traditional dispute settlement is typically a fairly public and transparent affair, with the wider community given the opportunity to voice any interests which they may have in a dispute. However, this is not easily translatable into international ADR proceedings between State parties governed by international law. Indeed, confidentiality is typically a core tenant of ADR. However, interviews have indicated that parties should have the option to waive confidentiality through mutual agreement. This could partially address growing doubts as to the legitimacy of confidential dispute resolution proceedings on the continent and inform the future behavior of States within framework of the AfCFTA.
Third parties may have interests in the outcome of a dispute, and their participation could be important for its resolution. Thus, ADR procedures could be flexible enough to allow – with the agreement of the primary disputing parties – the inclusion of third parties in proceedings. As with allowing parties to waive confidentiality, creating a mechanism for the inclusion of third parties in ADR proceedings aligns with traditional forms of African dispute resolution and is an additional form of flexibility.
E-ADR may have an important role to play in ensuring the use of ADR provisions by African States. E-ADR offers significant cost savings which may be crucial for African State Parties with limited financial resources. It is also more convenient and potentially efficient at eliminating long cross-continental travel times and in reducing administrative burdens.
The AfCFTA Secretariat is mandated to establish and maintain lists of highly qualified individuals who are willing, able, and qualified to serve as Panelists in formal dispute settlement proceedings. Interviews have suggested that it could be highly useful for the Secretariat to maintain a similar list of individuals who could serve as mediators, conciliators, and providers of good offices in ADR proceedings. A list of trusted, trained, and experienced individuals is important to securing the buy-in of parties to ADR proceedings and can help parties to decide on a third neutral party if they request Secretariat assistance.
Many African States may lack the financial resources and/or legal expertise needed to take advantage of the AfCFTA’s formal DSM proceedings. Considering this, Art. 28 of the AfCFTA's Protocol on Rules and Procedures on the Settlement of Disputes allows for "technical cooperation" between the Secretariat and state parties to build expert capacity in dispute settlement procedures. Therefore, it is important that Secretariat or other outside assistance be made available to disputing AfCFTA Members.
In sum, discerning the unique aspects to African dispute settlement through African case studies and interviews with experts from the continent informs the essence of this Report’s research and ultimately the text of the Guidelines set out in Annexes 1 and 2. It is hoped that these Guidelines can provide the basis for AfCFTA Members and the AfCFTA Secretariat to facilitate the use of ADR to resolve disputes within the AfCFTA.