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Regional Courts bolster rules-based integration

Swakopmund, Namibia, Friday, April 8, 2016: Regional courts are increasingly becoming important in entrenching rules-based governance for regional trade and integration by ensuring the protection of private party rights.

Delegates attending the annual Trade Law Centre (TRALAC) conference in Swakopmund, Namibia, April 7-8, 2016, were informed that since only States are the parties to trade and regional integration agreements private parties have always faced problems.

The conference attracted participants from the public and private sectors from the eastern and southern Africa region. They included technical officers from the Common Market for Eastern and Southern Africa (COMESA) and Southern Africa Development Community (SADC).

The chairman of the TRALAC board Mr. George Lipimile who is also the Chief Executive Officer of the COMESA Competition Commission officially opened the conference the conference observed that the private sector has in recent years brought cases before national and regional courts claiming their rights emanating out of regional agreements. This development, which has been observed in the eastern and southern Africa, has been described as constructive as it provides insights for rules-based governance of trade and integration in Africa.

“Private parties derived no rights from regional agreements yet they are the traders, service providers and investors who frequently suffer the consequences when such agreements are violated,” Prof. Gerhard Erasmus of the TRALAC said at the opening of the conference.

“There is in fact double jeopardy; they do not normally enjoy standing before the international dispute settlement fora such as the Dispute Settlement Unit of the World Trade Organization; only states are parties to such disputes.
The COMESA Court of Justice which was represented at the TRALAC conference by five judges and the Registrar was cited for praise for its landmark ruling in a matter involving a private company and the State of Mauritius. The judgment was made in favour of the company; Polytol Paints in 2013.

More recently, the COMESA Court found that it has jurisdiction to hear a case between Malawi Mobile (a mobile company incorporate in Malawi) and the government of Malawi. An appeal by the government is still to be decided. Similarly, the East African Court was cited for taking up a significant number of cases relating to the fundamental and operational principles enshrined in the EAC Treaty.

Urging for deeper inclusion of the private sector in the formulation of regional trade laws and policies, delegates noted that the benefits of trade and economic integration depended on the commercial activities of private parties across borders. Hence private sector activities ensured the economic gains that underpinned free trade and integration efforts.

“The quest by private parties to resolve disputes and hold governments accountable for the commitments that they have undertaken, can make an important contribution to the development of rules-based governance for trade and integration in Africa,” the Executive Director of TRALAC, Ms Trudi Hartzenberg observed.

The conference agreed that there was room for private party participation in enforcement of the Treaties’ provision at the national level through litigation in national and regional courts and lobbying for the enhancement of Panel process that deal with Non-Tariff Barriers.

The key issues in focus at the conference were: rules-based governance in African trade and integration; safeguards and trade remedies; standards; private litigation, dispute resolution and community law developments and connecting Africa for competitiveness.

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