Non-Exclusivity and an Ocean of Possibilities: The AfCFTA Jurisdictional Lex Specialis

The Dispute Settlement Mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) is established as a central element to provide security and predictability to the newly created regional trading system. Enacted to preserve the rights and obligations of State Parties to the Agreement and modelled after the dispute settlement system of the World Trade Organisation (WTO), the AfCFTA Agreement's Dispute Settlement Protocol (DSP) provides that the DSM is only accessible to States. This inter-state feature of the AfCFTA DSM is, however, seen as a setback when compared to the access
private parties have to the courts/tribunals of certain regional economic communities. However, the AfCFTA dispute settlement mechanism, while compulsory, is not exclusive. Article 3(2) of the DSP, which provides 'special and additional rules and procedures on dispute settlement' opens an ocean of possibilities. This paper explores these possibilities, including, but not limited to, whether and to what extent, Article 3(2) can also be construed as granting private parties access to the (trade) dispute settlement procedure(s).