Domesticating AfCFTA Dispute Settlement through Reciprocity

The African Continental Free Trade Area (AfCFTA) is currently the largest free trade agreement outside the World Trade Organisation (WTO) in terms of number of member states. The signing of the AfCFTA Agreement and its coming into force has come with great hopes of increasing intra-African trade and investment and attracting foreign direct investment into the continent. By establishing a rules-based system underpinned by a Dispute Settlement Protocol, the business community in Africa and beyond will need an assurance of security and predictability of the AfCFTA regime in order to undertake any substantial risks of trading or investing on the continent. The effectiveness and viability of the AfCFTA dispute settlement system is therefore fundamental to securing the needed legal security and predictability. Considering the fact that there is quite a poor history of African states engaging in state-state dispute settlement either at the World Trade Organisation (WTO) or the Regional Economic Communities (RECs) on the continent, there is a real danger that replicating this same system in AfCFTA will fail to deliver the needed security and predictability the business community will require for assuming any substantial trade or investment risks in the AfCFTA region. This work argues that, in the absence of a treaty change to require domesticating AfCFTA law in a manner that grants rights to persons to enforce the law at the domestic level, reciprocal domestication, though not perfect, could be a viable way forward for like-minded AfCFTA members.