Préstamos bancarios y deuda a largo plazo

(i) To examine the dispute resolution mechanism availed through the AU single court, and to establish whether the same addresses the resolution of potential trade and investment disputes under the AEC treaty.

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(ii) To assess the viability of expansion of the jurisdiction of the AU single court to include the settlement of trade and investment disputes envisaged under the AEC treaty.

(iii) To advance the case for a special chamber/section and an expanded spectrum of dispute resolution mechanisms to involve arbitration, mediation and conciliation, under the court.

(iv) To use comparative law to model an appropriate structure of an expanded and devolved trade and investment chamber of the ACJ&HR.

An examination of the jurisdiction and remit of the ACJ&HR will form the substratum of the first part of this research. An interrogation of Article 28 of the Statute of the ACJ&HR will, therefore, be necessary. Moreover, an expanded jurisdictional mandate of the AU single court to include resolution of trade and investment disputes will be justified.

Firstly, this research will underscore that trade and investment operate most effectively within jurisdictions with predictable, independent, impartial and efficient dispute resolution mechanisms. An effective and holistic mechanism for the settlement of trade and investment disputes is critical for the deepening of the integration process. Fair, efficient, expeditious, reliable and competent dispute resolution methods, assure state parties, investors, third states and trading citizens of member states, of the reliability of the AfCFTA and AEC. Confidence is therefore infused in the AEC rules of engagement, tariffs and tax regimes. In addition, foreign direct and intra-community trade and investments shall follow. Accordingly, the World Trade Organisation (WTO) Guidelines on Regional Integration recognise that an effective and efficient dispute resolution system is imperative for the proper functioning of a REC.12

The second aspect of this thesis delves into a consideration of the instruments available to the ACJ&HR; and whether the same underwrite trade and investment dispute settlement under the AEC. The point of commencement is the Charter of the United Nations (UN) and the AU Treaty,

12 _{Article XXIV 1994 GATTS/WTO Agreement}

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which underscore the commitment of member states to settling disputes by peaceful means.13 These include trade and investment disputes. On the international plane, international tribunals/courts, mediation, conciliation and arbitration are the primary methods of settling disputes among states, third parties and investors inter se.14 The thesis will therefore seek to justify an expanded array or spectrum of dispute resolution mechanisms which are deemed useful to the resolution of trade and investment disputes in an integrated Africa.

Coupled with the aforementioned objectives, this research will highlight how international economic law has over time developed a body of law complete with its own unique dispute resolution mechanisms, with international commercial arbitration as its significant feature.15 Arbitration has been found to be most suitable for investment disputes between states and investors with regards to private international contracts/transactions, treaty based transactions/contracts and disputes related thereto.16

Mediation, negotiation and conciliation, on the other hand, have found use mostly in political disputes including trade disputes pitting states and more particularly on interpretation, application, observance and implementation of treaty obligations.17 Mediation, negotiation and conciliation are preferred over adversarial court or arbitral tribunal proceedings. These non-adversarial methods of dispute resolution are useful in resolving or managing trade disputes between states. This is largely because they involve negotiations with the facilitation of neutral experts and often ensure relationships endure the dispute, rather than fracturing or completely severing relations between states.

13 _{Article 2(1) and 33 of the Charter of the UN; Article 4 (e) of the AU Act.}

14 _{MF Hollering, “Alternative Dispute Resolution and International Trade” (1986) 14 N.Y.U Rev. L. & Soc. Change} 785. Also see Article 33 of the Charter of the UN, available at <https://www.un.org/securitycouncil/content/pacific- settlement-disputes-chapter-vi-un-charter> accessed on 30th _{January 2019.}

15 _{AS Sweet, “The New Lex Mercatoria and Transnational Governance” (2000) 13 Journal of European Public Policy} 627-646. MF Hoellering MF, [n14] 785.

16 _{Ibid 628-630. See also, H Booysen, “International Law as a Legal System; the Quest for a Private Law Leg” (1996)} 21 SAYIL 60.

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Further, the thesis will analyse the structure of the dispute resolution mechanism availed by the ACJ&HR to determine its efficacy in the settlement of trade and investment disputes. The first section of the thesis will recommend an inbuilt appellate mechanism in the court’s structure. As it is, the ACJ&HR is a centralised court without branches or without presence in the regions of Africa. It will be proposed that the structures of existing RECs be maintained at the sub-regional level with the objective of devolving the functions of the ACJ&HR. This will not only ensure a harmonised approach, but will also ensure effective, expedient disposal of disputes. It will also allow the court to leverage on the existing structures developed by RECs instead of winding them up. This will allow for the benefits of the continental economic integration to be seen and felt in all corners of the continent. It will also allow for an overall avoidance of waste of physical infrastructure, as well as human resource capacity, built by RECs, throughout the last six decades, as part of sub-regional integration efforts by independent African states.

The research also addresses the decentralisation and devolution of the ACJ&HR as a means of achieving access to trade and investment justice in the context of the AEC. The 40-year journey towards the AEC is meant to benefit from vital lessons drawn from experiences of the RECs, which the AU intends to eventually consolidate and collapse into the AEC. These experiences invariably include attempts at establishing both supranational and inter-governmental institutions at sub- regional levels on the African continent. African RECs have established, at the sub-regional level, courts, tribunals, arbitration and mediation centres as part of their own integration process. The East African Community (EAC) has created the East African Court of Justice (EACJ). The Southern African Development Community (SADC) has established a tribunal. ECOWAS has established a Court of Justice. The Common Market for Eastern and Southern Africa (COMESA) has established a court of Justice with jurisdiction to employ arbitration. The Intergovernmental Agreement on Development (IGAD) has an arbitration centre, which also focuses on mediation in peace and conflict management. The thesis will, therefore, draw from the experiences gained by these sub-regional RECs, in dispute resolution, which include the establishment of permanent and ad hoc courts, tribunals and other dispute settlement bodies.

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It is also intended, through this research, to develop a multi-door, multifaceted dispute resolution mechanism. This mechanism proposed is to offer litigation in the traditional court set up, international commercial arbitration, as well as in mediation and conciliation; each being suited for a specific nature of dispute, all under the aegis of the ACJ&HR. For instance, mediation and conciliation, which are useful for resolving state-state, or state-community disputes, based on obligations under the AEC Treaty, are proposed. International commercial arbitration, which is most suitable for resolution of commercial and investment disputes, based on treaty rights and cross border transactions between member states’ citizens and which, therefore, cannot be the subject of national courts, is also proposed. The research will, therefore, gravitate towards an expanded dispute resolution spectrum, beyond what is currently offered by the ACJ&HR.

The conclusions drawn and the propositions proffered, in answer to the research questions posed, bear economic and social justifications. In 2018, Africa’s combined Gross Domestic Product (GDP) stood at US Dollars 2.5 trillion with a potential market of 1.2 billion people.18 Intra- Africa trade currently accounts for between 17%-23% of the trade on the continent.19 It is estimated that inter-Africa trade, under the AfCFTA, will account for an increase by up to 52.3% of all the trade in Africa by 2022.20 Intra Africa trade in industrial goods is projected to grow by US $60 billion annually.21 In 2018, Foreign Direct Investment (FDI) into Africa rose to US Dollars 46 billion in 2018 representing an 11% increase from the previous year.22 Foreign direct investors and traders are attracted to regions with an efficient and effective dispute resolution infrastructure. One of the core objectives of integration and indeed the drivers of the economic integration of Africa,

18 _{African Export-Import Bank (2018) African Trade Report, <https://s3-eu-west-}

1.amazonaws.com/demo2.opus.ee/afrexim/African-Trade-Report-2018.pdf> accessed on 14th _{August 2019, 78.} 19 _{Africa Trade Statistics Yearbook 2018 <https://www.uneca.org/publications/african-statistical-yearbook-2018>} accessed on 14th _{August 2019. See also, similar statistics by the World Trade Statistical Review 2018,} <https://www.wto.org/english/res_e/statis_e/wts2018_e/wts18_toc_e.htm> accessed on 14th _{August 2019. UNECA}

Economic Report on Africa 2019 <https://www.uneca.org/sites/default/files/PublicationFiles/era2019_eng_fin.pdf>

accessed on 14th _{August 2019.}

20 _{African Export-Import Bank, (n)18, 80.} 21 _ibid.

22_{United Nations Conference on Trade and Development (UNCTAD) World Investment Report (2019)} <https://unctad.org/en/PublicationsLibrary/wir2019_en.pdf> accessed on 14th _{August 201, 1}

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includes the quest for larger FDI and the deepening of intra–African trade. This is only possible with the assurance or guarantee that comes with a reliable and efficacious dispute resolution mechanism.

This research breaks new ground and ventures into the nascent area of continental economic integration of Africa. It addresses the economic integration of the African continent under the AEC Treaty and AfCFTA Agreement, in the limited context of dispute resolution. The research and the proposals emanating therefrom are aimed at enhancing the African integration process through proposing an effective, broad-based, devolved and effective dispute resolution mechanism that can spur intra-African trade and foreign investment.