This article examines
the African Continental Free Trade Area Agreement’s (AfCFTA’s) dispute
settlement system (AfCFTA DSS) and its innovations. The innovations refer to
changes in the AfCFTA DSS that distinguish it from the World Trade Organization
dispute settlement system (WTO DSS). This article discusses four innovations:
the obligation to fill Appellate Body (AB) vacancies, a sequencing arrangement,
the AfCFTA AB and the Panel’s authority to interpret the AfCFTA and disputing
parties’ responsibility for panellists’ remuneration.
This article makes
three main arguments. First, Good Office, Conciliation and Mediation (GOCM) are
most suitable for resolving disputes under the AfCFTA DSS. The flexibility to
use GOCM at any time and appoint independent individuals, including eminent
persons, appeals to African states’ preference for using eminent persons to
facilitate dispute settlement. Second, AfCFTA innovations might address
challenges encountered under the WTO DSS, particularly the AB crisis, that is
non-functioning AB, and Sequencing issue, from occurring under the AfCFTA DSS.
However, some of the innovations expose the AfCFTA DSS to other challenges,
including judicial activism and concerns over panellists’ independence. The
amendment of the AfCFTA DSP to incorporate non-ambiguous provisions that
address the challenges constitutes one possible solution. Third, the role of
the AfCFTA DSS in facilitating the implementation of the AfCFTA, providing
uniform interpretation of intra-African trade law and an opportunity to develop
technical trade expertise constitute reasons why AfCFTA Parties should use the
AfCFTA DSS.