1. Accelerated action for the adoption of best practices in trade and investment for the benefit of China-Africa co-operation’s legal framework
Ignatious Nzero
LLB (UFH), LLM (UKZN), LLD CANDIDATE (UNI. PRETORIA)
Paper presented at the 4TH Forum on China-Africa Co-operation (FOCAC) LAL FORUM, Victoria Falls, November 2013.

2. Introduction
Best practices : established principles underlying the multilateral trading and investment system
Legal framework : enforceable standards
Assumptions: mutual trade and investment enhance general standards of living
Currently no comprehensive legal framework to foster China-Africa trade and investment co-operation
Use the established principles to formulate China-Africa trade and investment legal framework

3. The multilateral trading system
Principles of the WTO
The WTO established by the WTO Agreement
WTO custodian of the MTs
WTO administer the MTs, legal instruments eg. WTO Agreement, DSU, GATT
WTO Agreement
Est. WTO – one-stop shop
Mechanism to facilitate, administer Multilateral trading Agreements (MTAs)

4. Ctd… Provides forum for negotiation (key to the MTs)
Emphasise the spirit of negotiation
Reiterates the significance of trade (PREAMBLE)
Provides mechanisms for reducing tariffs and other barriers to trade (trade liberalisation/ free trade)
Decision making (inclusive)
Treatment of developing and least developed nations as designated by the UN eg. irto commitments
Based on contractual consesus

5. WTO Agreement and lessons for China-Africa
Mutually beneficial trade
Differential treatment based on countries’ levels of economic development
A one-stop-shop
Freedom to contract

6. The GATT Most important of the MTAs
1947 lays foundation for WTO-current 1994 annexed to the WTO Agreement (Annex.1A)
Primarily- reduce tariffs and eliminate barriers to trade and discriminatory practices
Promote free trade
Confirms principles of the WTO eg. Treatment of developing countries
Most Favoured Nation principles (MFN) – Art. 1 exception to the general non-discrimination principle
Freedom of transit of trade commodities

7. Ctd… General exception to the non-discrimination principles
Aim to balance free trade and other relevant interests
Protect public morals
Protect human, animals or plant life or health (environment)
Conservation of exhaustible natural resources
Protect domestic industries
N/B conditions for application of the General Exceptions- not in a manner that unnecessarily hamper international trade eg. In an arbitrary or unjustified discrimination between countries where same conditions apply

8. Free v fair trade
GATT exceptions illustrates the need to balance free trade and other interests relevant to trading nations
The concept is relevant to China-Africa trade co-op.
Free trade and dumping
Dumping def in Art. VI of GATT ‘the Anti-dumping and countervailing duties clause’
Art. VI provides a built in mechanism aimed at combating dumping
Contains conditions upon which duties can be levelled
Question : how to adapt the measures to the China-Africa trade context?

9. Dispute settlement mechanism
Disputes inevitable in trade
Def. of dispute
MTs- regulated by the DSU –central to WTO
Founded on principle that Members willingly accept to be bound by the legal processes of the WTO
Principles : primarily aim at settling trade disputes
Consultation
Inclusive
Respect for the processes
Due process and rules of natural justice

10. Ctd… Compliance, remedy and enforcement
Parties feel bound by outcome as a result of the respect they have for the process
Arbitration- thriving to secure a settlement
Retaliation –last resort
Status of developing countries
Assistance – aimed at levelling the playing field
No complaints against
Flexible timeframes if dispute involves a developing country
The Dispute Settlement mechanism and lessons for China-Africa
Flexibility
Equality ( a level playing field )
Rules of natural justice
Culture of respect of the processes makes outcome acceptable

11. A legal framework for fostering China-Africa investment relations
BIPPAs –provides a building block
Aims at ensuring a predictable and stable investment environment conducive for investment
Promotion and protection of cross-border investment
Provides rights and obligations for both the investing and the host nation
Within the China-Africa context
to create IPPAs in individual countries–legally constitutes and empower them
Capacitates IPPAs
Provides clear rules and processes for investment promotion and protection
Establish a one-stop- shop for investment promotion and protection between China and Africa

12. Fostering the China-Africa trade and investment co-operation: the legal framework
A need for a one-stop-shop to promote trade and investment
Legal rules to give impetus to the trade and investment promotion system
Use the established principles of the MT&I s
Adapt the MT&Is to suit China-Africa trade and investment needs
Adopting and adapting the best standards for trade and investment and formulating an enforceable legal standard
Will enhance trade and investment for the mutual benefit of China and Africa