International Trade Dispute Resolution: Lessons From South Africa
by Gustav Brink
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Article 3.2 of the World Trade Organization (WTO) Understanding on Dispute Settlement (DSU)1 provides that the rationale for dispute settlement is to “clarify the existing provisions” of the WTO Agreements “in accordance with the customary rules of interpretation of public international law.” However, African countries have not made significant use of the DSU2 and only as either respondents or as third parties. There is thus a dearth of African experience in international trade dispute resolution, which this paper attempts to alleviate through reference to the South African experience, such as there is. Section I provides background on the importance of South Africa in the African context, while Section II considers South Africa’s institutional structure and processes (both those applied and the ideal) with references to the disputes in which South Africa has been involved to date.3 It investigates the methodology used to ascertain the necessary facts in disputes and identifies the gaps that currently exist in the procedure to defend a case, while indicating that a vacuum exists as regards the procedure to be used when the domestic industry is of the opinion that its rights have been infringed in a third country. Section II concludes with an evaluation of the technical expertise available in South Africa before providing a brief overview of dispute settlement within the Southern African Customs Union (SACU) and the Southern African Development Community (SADC).
The paper concludes by proposing changes to the current system to ensure that South Africa can effectively and efficiently defend its rights under the WTO Agreements. These considerations and proposals can then be used by other African nations to avoid the pitfalls encountered in South Africa and assist in setting up proper structures.
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