African countries and the world trade organization dispute settlement mechanism; the challenges, constraints and the need for reforms

Abstract

African countries form almost one-third of the membership of the World Trade Organization (WTO) yet their participation in the WTO Dispute Settlement Body (DSB) is quite alarming. Only South Africa and Egypt have ever instituted a case at the DSB. Other African countries have never instituted cases at the DSB and neither have they joined other cases at the DSB as third parties. Is it a case of African countries having no trade disputes to refer to the DSB? The failure by African countries to utilize the WTO dispute settlement mechanism is triggered by factors such as the cost of referring a dispute to the DSB, the inadequacy of the SDT provisions under the DSU, the inadequacy of retaliatory provisions under the DSU and the DSU’s lack of a development agenda towards African countries among other factors. The Doha round of negotiations which begun in 2001 has provided a platform for African countries and other WTO members to amend the DSU with an aim of encouraging the participation of African countries in the WTO DSB. The objective of the paper is to determine whether African countries have an alternative dispute resolution mechanism to the WTO DSB, whether African countries face difficulties in utilizing the DSB and what those difficulties are and whether the DSU is out of touch with African countries and as such African countries tend to shy away from solving their disputes through the DSB. Understanding the WTO DSU provisions, procedures and its dispute resolution mechanism, its applicability and use by African countries will be the main issue for consideration in this research. The research will concentrate on how African countries have participated in, and utilized the DSU. The focus will be mainly on the challenges encountered by African countries in their quest to settle trade disputes using the DSU, the constraints to their participation, and how the same can be reformed to improve their participation.