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Last WTO Dispute Settlement case book confirms that African countries’ participation to the Organization’s dispute resolution mechanism is almost zero

The WTO Dispute Settlement (One-Page Case Summaries), is a biennial publication with a summary of all cases where the panels and the WTO Appellate Body decided disputes between the WTO members since the creation of this body up to the end of 2022. The publication summarizes the core facts and substantive findings contained in WTO panel reports and those of the Appellate Body - a body, the latter, now paralyzed because of "veto power" exerted since 2019 by the United States on the appointment of its members. The 2023 edition of the WTO publication shows that the main users of this dispute resolution mechanisms remain the developed economies: mainly the United States, the European Union and Canada. Cases involving African countries are just a bunch.

Apart from their sporadic involvement as third parties in a few disputes concerning agricultural issues (such as a dispute on subsidies introduced by the U.S. and the EU, respectively, on upland cotton and sugar), only three disputes have seen African countries as respondents. In 2017 and 2002, Turkey initiated a dispute, respectively, against Morocco and Egypt for the application of anti-dumping measures on the export in the two North African countries of steel products. The only case of dispute between African countries was initiated in 2019 by Tunisia against Morocco due to the application by the latter of an anti-dumping duty on school exercise books. The publication does not mention a complaint initiated by South Africa in July 2022 against the EU concerning certain measures imposed by the European Union on the importation of South African citrus fruit and a complaint initiated by the EU against Egypt in January 2022 regarding a registration procedure introduced by the General Organization for Export and Import Control ("GOEIC"), to all foreign factories or companies owning trademarks as a condition to import in Egypt. However, the parties in both complaints are still in the phase of conducting consultations to try to solve their dispute in an amicable manner.

Although African countries represent 27 percent of WTO members (44 out of 164), their participation in the WTO dispute settlement system is almost zero. The lack of utilization by African countries of the WTO dispute settlement mechanism is due to a number of reasons, such as the difficulty to bear the costs of disputes before WTO dispute settlement bodies, and the unwillingness of African countries to resolve disputes through their referral to judicial or quasi-judicial (i.e., technical bodies exercising powers or functions that resemble those of a court or a judge) systems. This poses the question how useful can be a similar body which has been created in the context of the African Continental Free Trade Area (AfCFTA) to resolve inter-State disputes of commercial nature.

Historical precedents teach that, in fact, African countries prefer to resolve their disputes through forms of inter-governmental dialogue and mediation. What is surprising is that the WTO system, which is not used at all by sub-Saharan African countries, inspired the development of the dispute settlement system under the AfCFTA. This casts doubts on the effectiveness of this mechanism in resolving future trade disputes among African countries. Indeed, as it has been rightly observed, how should this mechanism help African countries to resolve their trade disputes if they never defer trade disputes to judicial and quasi-judicial fora?

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