The Agreement on African Continental Free Trade Area (AfCFTA) - Protocol on IP

The African Union (AU) Commission Chairperson, Moussa Faki Mahamat, recently confirmed that the African Continental Free Trade Area (AfCFTA) will officially enter into force during the next Extra-Ordinary Heads of State and Government summit, scheduled for 7th July 2019.

One African Market...

Although 52 African countries signed the agreement establishing the AfCFTA, the AU needed at least 22 ratifications to enable the AfCFTA Agreement enter into force. With Gambia submitting the 22nd ratification instrument, the AfCFTA Agreement is now officially on track. [While large economies like South Africa and Egypt have ratified the Agreement, Nigeria is yet to do so].

The AfCFTA Agreement is intended to bring together the 55 Member States of the AU and will be the world’s largest free trade area since the formation of the World Trade Organisation (WTO) in terms of participating member states.

Negotiated areas
The AfCFTA Agreement requires several commitments by Member States. Member States would need to commit to:

• eliminating tariffs and non-tariff barriers to trade in goods and liberalising trade in services (Phase 1 negotiations); 
•  cooperating on investment, intellectual property rights, competition policy, customs matters, and all other trade-related areas (Phase 2 negotiations); and 
• establishing a dispute settlement system (Phase 1 negotiations).
  

The AfCFTA Agreement is not expected to counter the spirit and obligations of the WTO agreements.

Negotiations on Intellectual Property Rights
IP is one of the three items currently under negotiation in Phase II of the AfCFTA Agreement. The Protocol on IP has not been released and so there have been no (official) documents indicating the possible scope of the discussions on IP. However, some commentators have put forward some suggestions on the possible scope of such Protocol. See here, here and here. Key suggestions include formulating provisions that address the existence of sub-regional IP organisations on the continent; provisions that take cognisance of the fact that innovation in Africa occurs mostly in the informal sector; and provisions that take advantage of TRIPS flexibilities strikes the right balance between development goals, innovation and trade.

Initial comments
This writer knows that the African continent presents a mix of countries at varying stages of national and sectoral development. It therefore goes without saying that the benefits from AfCFTA need to be evenly distributed if the Agreement is to be acceptable and effective. For IP, this is crucial. If the benefits of the free trade area are unevenly distributed for IPRs, the Continent may have a “post-TRIPS situation” (i.e. developing countries complaining that their interests were not sufficiently taken into account) on its hands.

One of the ways to achieve any of the benefits of a possible Protocol on IP is to address the enforcement of IP and the dispute resolution mechanisms for the settlement of IP disputes. If the Protocol on IPRs is to make its intended beneficial contribution to economic and social welfare in the Continent, it is crucial to ensure that dispute settlement mechanisms and processes are effective and accessible. Of the 41 WTO dispute settlement cases that sought guidance on the interpretation of certain key provisions in the enforcement section of the TRIPS Agreement, there is none instituted by an African country. Accessibility of the dispute settlement mechanisms in terms of costs and expertise may be significant contributory factors to this situation.

Part VI of the AfCFTA Agreement (Protocol on Dispute Settlement) introduces the Protocol on the Rules and Procedures on the Settlement of Disputes. The Dispute Settlement institutions and processes are quite similar to those of the WTO. There is a Dispute Settlement Body consisting of representatives of Member States, which will take decisions by consensus. The Dispute Settlement Body has the powers to establish Dispute Settlement Panels, and an Appellate Body. See Article 5 of the Protocol. Whether the Dispute Settlement mechanism can assure a level playing field or actually settle IP disputes remains to be seen and may also depend on the contents of the Protocol on IP.

This Africa Correspondent is patiently waiting to see the (draft) Protocol on IP (and competition policy, investment and customs matters) and will share her thoughts with readers.