A critical assessment of the relationship between the AfCFTA and World Trade Organisation dispute settlement mechanisms, in light of the Conflict of Jurisdiction
- Nhemachena, Tichakunda Charles
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
Opening up global food trade to developing countries: an evaluation of the World Trade Organisation's agreement on sanitary and phytosanitary measure
- Authors: Nyatsanza, Sharon
- Date: 2013
- Subjects: World Trade Organization , Food contamination , Food handling -- Safety measures
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/27413 , vital:67294
- Description: Food safety and consumer protection has been a major concern of regulators since the 12th century. Sanitary and Phytosanitary (SPS) measures were therefore introduced to protect human, animal and plant safety. With the expansion of international trade came the increase in the use of SPS measures. However these increases in the use of SPS measures were accompanied with their misuse for protectionist purposes. SPS measures which had been created for legitimate purposes quickly became significant barriers to trade. The World Trade Organisation (WTO) adopted the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) as a mechanism to regulate the use of SPS measures and avoid their potential use as protectionist tools. Trade liberalization and market access has been a primary aim of the WTO, therefore in principle the SPS Agreement is supposed to open up global food trade for all countries.Apart from opening up global food trade, another purpose of the SPS Agreement was to protect the developing countries, accommodate their special needs and in turn promote their economic development. Developing countries are heavily dependent on global food trade for their economic development. However developing states can only benefit from global food trade if they comply with SPS standards set in the importing countries. Considering their reliance on the agro – food sector the economic development of developing states is heavily reliant on the successful implementation of the SPS Agreement. According the SPS Agreement must avoid the use of illegitimate SPS measures and promote market access. It is therefore crucial that the SPS Agreement be analysed to determine whether its text, application and or interpretation satisfies the objective of opening up global food trade especially for developing states. The objective is to show the significance of a regulatory framework that is as much as possible devoid of any loopholes or shortcomings, which could frustrate the developmental interests. Inappropriate accommodation of developmental interests in the SPS Agreement could have adverse impacts on the development prospectus of developing countries. , Thesis (LLM) -- Faculty of Law, 2013
- Full Text:
- Date Issued: 2013
- Authors: Nyatsanza, Sharon
- Date: 2013
- Subjects: World Trade Organization , Food contamination , Food handling -- Safety measures
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/27413 , vital:67294
- Description: Food safety and consumer protection has been a major concern of regulators since the 12th century. Sanitary and Phytosanitary (SPS) measures were therefore introduced to protect human, animal and plant safety. With the expansion of international trade came the increase in the use of SPS measures. However these increases in the use of SPS measures were accompanied with their misuse for protectionist purposes. SPS measures which had been created for legitimate purposes quickly became significant barriers to trade. The World Trade Organisation (WTO) adopted the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) as a mechanism to regulate the use of SPS measures and avoid their potential use as protectionist tools. Trade liberalization and market access has been a primary aim of the WTO, therefore in principle the SPS Agreement is supposed to open up global food trade for all countries.Apart from opening up global food trade, another purpose of the SPS Agreement was to protect the developing countries, accommodate their special needs and in turn promote their economic development. Developing countries are heavily dependent on global food trade for their economic development. However developing states can only benefit from global food trade if they comply with SPS standards set in the importing countries. Considering their reliance on the agro – food sector the economic development of developing states is heavily reliant on the successful implementation of the SPS Agreement. According the SPS Agreement must avoid the use of illegitimate SPS measures and promote market access. It is therefore crucial that the SPS Agreement be analysed to determine whether its text, application and or interpretation satisfies the objective of opening up global food trade especially for developing states. The objective is to show the significance of a regulatory framework that is as much as possible devoid of any loopholes or shortcomings, which could frustrate the developmental interests. Inappropriate accommodation of developmental interests in the SPS Agreement could have adverse impacts on the development prospectus of developing countries. , Thesis (LLM) -- Faculty of Law, 2013
- Full Text:
- Date Issued: 2013
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