Integrating African Markets into the Global Exchange of Services: A Central African Perspective

See World Trade Organization, World Trade Report 2011, The WTO and Preferential Trade Agreements: From Co-existence to Coherence (Geneva: WTO, 2011).

See for instance R. Baldwin, Multilaterising Regionalism: Spaghetti Bowls as Building Blocs on the Path to Global Free Trade, 29 The World Economy, no. 11 (2006), 1451-1518.

On the importance of services for economic growth (and the desire to further remove existing barriers to their trade in the Doha framework and beyond) see B. Hoekman and A. Mattoo, Services Trade Liberalization and Regulatory Reform: Re-invigorating International Cooperation, World Bank Policy Research Working Paper No. WPS 5517 (January 2011). See also UNCTAD, Trade in Services and Development Implications (Geneva: UNCTAD/TD/B/COM.1/85, 2007).

An exception being J.T. Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge: Cambridge University Press, 2011), where the author in Chapter IX discusses CEMAC alongside other monetary unions such as the West African Economic and Monetary Union (UEMOA) and the West African Monetary Zone (WAMZ). Note that the study of CEMAC in this article is without prejudice to the “rationalisation and harmonisation of African RECs” project that would entail the replacement of the latter by a wider REC – the Economic Community of Central African States (ECCAS).

S. Stephenson, “GATS and Regional Integration”, in P. Sauvé and R.M. Stern (eds.), GATS 2000: New Directions in Services Trade Liberalization (Washington, DC: Brookings Institution Press, 2000), p. 509.

See for instance Paul Brenton and Gözde Isik (eds.), De-fragmenting Africa: Deepening Regional Trade Integration in Goods and Services (Washington, DC: World Bank, 2012), on the fact that Africa as a whole trades too little with itself, hence a desire to deepen integration in both goods and services in order to reap the fruits of trade liberalisation. See also the African Union Action Plan for boosting intra-African trade, available at: <http://www.au.int/en/sites/default/files/Action%20Plan%20for%20boosting%20intra-African%20trade%20F-English.pdf>, accessed 15 June 2012.

See J. Marchetti and P.C. Mavroidis, The Genesis of the GATS (General Agreement on Trade in Services), 22 European Journal of International Law, no. 3 (2011), 689-721, tracing the GATS negotiating history.

See e.g. R. Adlung and M. Roy, Turning Hills into Mountains? Current Commitments under the GATS and Prospects for Change, WTO Staff Working Paper ERSD-2005-01 (March 2005).

There may however be other reasons for this phenomenon of bilateralism. For political reasons why Governments may prefer regionalism over multilateralism, see e.g. C. Damro, “The Political Economy of Regional Trade Agreements”, in L. Bartels and F. Ortino (eds.), Regional Trade Agreements and the WTO Legal System (Oxford: Oxford University Press, 2006), pp. 23-42. Note however that the fact that “regionalism” is on the rise is no longer a secret. It is gradually appearing not as the “second-best” option portrayed in mainstream economics but as a fully fledged policy option. In the words of the Panel in Turkey – Textiles, “regional trade agreements have greatly increased in number and importance since the establishment of GATT 1947 and today cover a significant proportion of world trade” (Panel Report, Turkey – Textiles, WT/DS34/R, adopted 19 November 1999, as modified by the Appellate Body Report, WT/DS34/AB/R, at para. 9.97). In fact, in the words of Mavroidis, the status of PTAs has today moved from that of “exception” to that of “right”. See P. Mavroidis, WTO and PTAs: A Preference for Multilateralism? (Or the Dog that Tried to Stop the Bus), 43 Journal of World Trade, no. 5 (2010), 1145-1154.

See Baldwin (2006), supra note 2.

SDT provisions, alongside capacity building and technical cooperation, were designed to allow LDCs to actively participate in the world trade. SDTs are of many types. On this score, see E. Kessie, Enforceability of the Legal Provisions Relating to Special and Differential Treatment under the WTO Agreements, 3 Journal of World Intellectual Property, no. 6 (2000), 955-975, tracing the evolution of developing countries’ negotiations of GATT/WTO Agreements and concessions accorded to them to accommodate their “weaker” statuses, and the possible avenues to make these “concessions” enforceable (in the full legal meaning of the word).

J. Marchetti and P. Mavroidis, What Are the Main Challenges for the GATS Framework? Don’t Talk About Revolution, 5 European Business Organization Law Review, no. 3 (2004), 511-562, at 513.

The LDC waiver was adopted at the 8th WTO Ministerial Conference in Geneva on 17 December 2011 to enable WTO developing and developed-country Members to provide preferential treatment (hence market access privileges) to services and service suppliers of LDCs for 15 years from the date of its adoption. Although it is referred to as “enabling clause”, this terminology should not be confused with the trade in goods scenario where “enabling clause” refers to a preferential trade agreement among developing countries. In the services context, this is a “waiver”, providing a legal cover to developing and developed countries when they give preferential treatment to LDCs (whether WTO Member or not) contrary to Article II of the GATS (on MFN). Whether this waiver grants LDCs an “actionable” right is another matter altogether. Suffice it to say the waiver does not in any manner oblige Members to grant preferences.

For instance, the Agreement’s Preamble spells out the desire of WTO Members to “facilitate the increasing participation of developing countries in trade in services and the expansion of their services exports” with “particular account of serious difficulty of the least-developed countries”.

One important caveat is worth making: Article V GATS is not directed exclusively to developing countries, as this “exclusivity” is essentially dealt with under Article IV GATS (“increasing participation of developing countries” in the world trade). Rather, Article V GATS offers flexibility (vis-à-vis the multilateral rule) when an agreement of the type envisaged by that provision has one or more developing countries as its members. That is different from its GATT counterpart (article XXIV) that designed no special rules concerning PTAs between developed and developing countries (although goods PTAs between two or more developing countries are dealt with under the “Enabling Clause”). Additionally, in the process of “progressive liberalisation”, Article XIX.2 GATS also offers “flexibility” in the manner it will be conducted in this group of countries (progressively opening fewer sectors, liberalising fewer types of transaction, etc. in line with Article IV objectives).

On the status of PTAs from that of “exception” to that of “right”, see Mavroidis (2010), supra note 9.

On the criticism of the general tendency of overstating the failure of African regional trade agreements because they usually serve other purposes (apart from trade integration), see J. Gathii, African Regional Trade Agreements as Flexible Legal Regimes, 35 North Carolina Journal of International Commercial Regulation, no. 3 (2010), 571-668, for whom recounting the so-called failures over and over again may be too pessimistic a take on African regionalism.

See Regional Trade Agreements database, available at: <http://rtais.wto.org/UI/PublicSearchByCrResult.aspx>, accessed 15 June 2012.

The Enabling Clause stands for the General Agreement on Tariffs and Trade (GATT) Contracting Parties “Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries” of 28 November 1979 (GATT L/4903), GATT BISD 26th Supp. (Geneva, 1980), p. 203. It was later incorporated in the corpus of WTO law by GATT 1994, para. 1(b) (iv).

M. Roy, Services Commitments in Preferential Trade Agreements: Surveying the Empirical Landscape, NCCR-Trade Working Paper No 2012/02 (January 2012).

P. Mavroidis, If I Don’t Do It, Somebody Else Will (Or Won’t): Testing the Compliance of Preferential Trade Agreements With the Multilateral Rules, 40 Journal of World Trade, no. 2 (2006), 187-214.

But let’s not ignore that non-compliance by a PTA with the multilateral rules does not impact upon its validity between the Parties who signed it. A PTA is an international treaty on its own and there is consequently no deference of one to the other since they both stand on an equal footing in international law. Thus, “WTO Agreements per se have no legal supremacy over Economic Integration Agreements”: T. Cottier and M. Molinuevo, “Article V GATS”, in R. Wolfrum, P.T. Stoll and C. Feinäugle (eds.), Max Planck Commentaries on World Trade Law: WTO – Trade in Services, vol. 6 (The Hague: Martinus Nijhoff, 2008), p. 128. But the undesirable effects might advocate for a PTA-compliant rather than a PTA-rebellious.

Since it is less doubt that Baldwin’s concept of “multilateralising regionalism” commends that multilateralism and regionalism strengthen each another. See F. Söderbaum, Unlocking the Relationship between the WTO & Regional Integration Arrangements (RIAs), 35 Review of African Political Economy, no. 118 (2008), 629-644, at 630. On how to do that, see R. Baldwin and P. Thornton, Multilateralising Regionalism: Ideas for a WTO Action Plan on Regionalism (London: Centre for Economic Policy Research, 2010).

At least for the time needed to reverse the diverting effects it they exist and which, unfortunately (for the multilateral regime), might even take longer in services context given its particular nature (bound to be regulated) and the speed at which multilateral negotiations are being conducted. But we will see later that services PTAs do not necessarily lead to diversion.

See J. Marchetti, “Developing Countries in the WTO Services Negotiations: Doing Enough?” in G. Berman and P. Mavoidis (eds.), WTO Law and Developing Countries (Cambridge: Cambridge University Press, 2007), p. 83.

Ibid.

T. Cottier, The Challenge of Regionalization and Preferential Relations in World Trade Law and Policy, 1 European Foreign Affairs Review, no. 2 (1996), 147-167, at 156.

The OECD Glossary of Statistical Terms defines “producer services” as “intermediate inputs to further production activities that are sold to other firms, although households are also important consumers in some cases”. Producer services comprise the following International Standard Industrial Classification (ISIC) Rev. 3 sub-groups: business and professional services; financial services; insurance services; real estate services.

B. Hoekman and P. Sauvé, Regional and Multilateral Liberalization of Service Markets: Complements or Substitutes? 32 Journal of Common Market Studies no. 3 (1994), 282-318, at 284, footnote 1.

M. Matsushita, T. Schoenbaum and P. Mavroidis, The World Trade Organization: Law, Practice and Policy (2nd ed., Oxford: Oxford University Press, 2006), p. 607. See also Wolfrum, Stoll and Feinäugle (eds.) (2008), supra note 22, p. ix, where global services exports amounted to 2.6 trillion US Dollar in 2006.

Hoekman and Sauvé (1994), supra note 29, at 284.

World Trade Organization, A Handbook on the GATS Agreement (Cambridge: Cambridge University Press, 2005), p. 3.

UNCTAD (2007), supra note 3, p. 2. These figures notwithstanding, Africa represents only 10% of services exports in the developing world, see Id, p. 3.

The issue was nevertheless already present on the agenda of the Tokyo Round (1973–1979) at the initiative of the US. See Marchetti and Mavroidis (2011), supra note 7. See also C. Fuchs, “GATS Negotiating History”, in Wolfrum, Stoll and Feinäugle (eds.) (2008), supra note 22, p. 3.

Matsushita et al. (2006), supra note 30, p.604.

See J. Marchetti and P. Mavroidis (2004), supra note 12, at 523-524.

See recital 2 of GATS Preamble.

Although Article XXI GATS allows a Member to modify a commitment in its Schedule (after 3 years), it is rather difficult to think of how that might happen in practice given that the modifying Member is required to negotiate “compensatory adjustments” with “affected Members” on an MFN basis, which the latter must agree with. This is a difficult result to achieve as it involves reaching consensus (by all WTO Members) to allow the modifying Member to deprive other Members of the advantages they have been enjoying in trading when that commitment was in force. This particular argument can be advanced on Article V:5 (modification and withdrawal of commitment in an economic integration agreement).

The approach taken by negotiators was to opt for a “progressive liberalisation” for all Members, unresolved issues to be sorted out during subsequent rounds; and flexibility with respect to the participation of developing countries and loosened discipline when it comes to services of interest to them, etc.

Matsushita et al. (2006), supra note 30, p. 605.

It is argued, however, that GATS favours liberalisation over allowing domestic regulation due to the “right of Members to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet national policies objectives”, as found in Recital 4 of the Preamble of GATS which, if it were to be accorded greater impact, should have simply been made part of the provisions of Article VI (Domestic Regulation). See H. Hestermeyer, “Preamble General Agreement on Trade in Services”, in Wolfrum, Stoll and Feinäugle (eds.) (2008), supra note 22, p. 27.

Article II GATS.

P. Delimatsis and M. Molinuevo, “Specific Commitments: Article XVI GATS”, in Wolfrum, Stoll and Feinäugle (eds.) (2008), supra note 22, p. 369.

Article I:1 GATS.

Article I:3(a) GATS.

Article I:3(b) GATS. Article I:3(c) GATS on its part defines a service “supplied in the exercise of governmental authority” as one supplied neither on a commercial basis, nor in competition with one or more service suppliers, i.e. not-for-profit activities like social security or central banking services.

Pursuant to Article I:2 GATS, services can be traded in the following manners: (i) Mode 1–cross-border supply; (ii) Mode 2–consumption abroad; (iii) Mode 3–commercial presence; (iv) Mode 4–presence of natural persons.

Article V:1(a) GATS. See Section V.

J. Hodge, “Liberalization of Trade in Services in Developing Countries”, in B. Hoekman, A. Mattoo and P. English (eds.), Development, Trade and the WTO: A Handbook (Washington, DC: The World Bank, 2002), p. 222. See also Marchetti (2007), supra note 25, p. 97.

Matsushita et al. (2006), supra note 30, p. 617.

Hodge (2002), supra note 49, p. 222.

World Trade Organization, Guide to the Uruguay Round Agreements (The Hague: Kluwer Law International, 1999), p. 164.

Marchetti and Mavroidis (2011), supra note 7.

Which Mode became one of the most important challenges for developing countries in the DDA of services negotiations. See Marchetti (2007), supra note 25, pp. 97, 115-116.

The status of some of which is rather controversial since WTO does not have a definition of “developing countries” on its own, letting each of them to self-elect its status on accession. There is indeed no international consensus on the concept.

R. Adlung et al., “The GATS: Key Features and Sectors”, in Hoekman, Mattoo and English (eds.) (2002), supra note 49, p. 261.

A. Mukerji, Developing Countries and the WTO; Issues of Implementation, 34 Journal of World Trade, no. 6 (2000), 33-74, at 33, 39-40 cited by Matsutshita, Shoenbaum and Mavroidis (2006), supra note 30, p. 782. Enhanced market access is the bone of contention between negotiating actors and the politically sensitive Mode 4 is of utmost importance to developing countries that want to see developed nations commit while in turn refraining to open further on this mode of supply. Offers as of the end of 2005 has shown this dangling pattern. On this score, see J. Marchetti (2007), supra note 25, pp. 100, 110-114.

See Adlung et al. (2002), supra note 56, at 263 (Table 27.3). See also Marchetti and Mavroidis (2004), supra note 12, at 521 and 558 (Table I).

Marchetti (2007), supra note 25, p. 90.

Ibid, pp. 87-89. Marchetti shows how welfare has been enhanced in those countries whose telecommunication industries were liberalised, allowing for extended Internet penetration that in turn affected in a positive manner how other services are being traded. The same holds true for maritime transport services liberalisation (in Chile) in the reduction of transportation costs and also in distribution services (especially of agricultural products) where Zimbabwean farmers for instance have seen an increase in their income when competition was introduced (eliminating monopsony) in the market for the purchase of their production.

See Joseph J.L. Correa, L’OMC à l’épreuve des Accords de Partenariat Economique et de l’intégration économique africaine (Zurich: Schulthess, 2007), pp. 144-151.

Panel Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/R and WT/DS142/R para. 10.271. [hereinafter Canada – Autos]

Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/AB/R, para.45 (hereinafter Turkey – Textiles) cited in Cottier and Molinuevo (2008), supra note 22, p. 128.

However, although it will make the agreement unlawful, non-compliance with one or more of GATS provisions does not render the PTA null and void. The issue would then be for interested (and/or third) parties to issue an MFN claim or ask for (adequate) compensation by way of dispute settlement. See Cottier (1996), supra note 27, at 162-163.

Cottier (1996), supra note 27, at 158.

Cottier and Molinuevo (2008), supra note 22, p.131.

Ibid.

See the Committee of Regional Trade Agreements Note on the Meetings of 29–30 April and 3 May 1999, WT/REG/M/22, 4 June 1999, cited in Cottier and Molinuevo (2008), supra note 22, p. 131.

But difficulties in interpretation resurface if no commitments on MFN basis have been made at all. This is due to the fact that it is difficult to depict free-trade scenario in services since almost all barriers are regulatory in nature with no obligation to harmonise laws.

Cottier and Molinuevo (2008), supra note 22, at 132.

Ibid.

Ibid, at 132-133.

Ibid, at 133.

Ibid.

P. Van den Bossche, The Law and Policy of the World Trade Organization (2nd ed., Cambridge: Cambridge University Press, 2008), p. 711.

Stephenson (2000), supra note 5, p. 516.

Ibid, footnote 6. However, it may be relevant while reviewing the agreement under Article V:2 GATS.

Panel Report, Canada – Autos, para. 10.271.

Cottier and Molinuevo (2008), supra note 22, at 134.

Ibid, at 135.

Van den Bossche (2008), supra note 75, p. 712.

Ibid, p. 664. See also Stephenson (2000), supra note 5, p. 517.

Van den Bossche (2008), supra note 75, p. 664 & Stephenson (2000), supra note 5, p. 517.

Committee on Regional Trade Agreement, Examination of the North American Free Trade Agreement, Note of the Meeting of 24 February 1997, WT/REG4/M/4, cited in Van den Bossche (2008), supra note 75, p. 712, footnote 399.

Cottier and Molinuevo (2008), supra note 22, at 136

Ibid.

Van den Bossche, supra note 75, p. 712.

Stephenson (2000), supra note 5, p. 519, footnote 8 citing a proposal made by Japan at a meeting of the WTO Council for Trade in Services in April 1999 where it is required of an EIA to eliminate discriminations in sectors covered within 5 years after the entry into force of that agreement. GATT Article XXIV discussions have also in some occasions suggested longer timeframes of say 12 years as practice shows (like in the case of the FTA between the United States and Chile). See L. Bartels, “Interim Agreements” under Article XXIV GATT, 8 World Trade Review, no. 2 (2009), 339-350, at 346-348. See also Gathii (2011), supra note 4, p. 86 et seq where the author argues inter alia for longer timeframe for developing countries, especially pursuant to the Enabling Clause.

See Matsushita et al. (2006), supra note 30, p. 578 who argue that GATS PTA borrows features of FTAs even though the term is not used as such.

Commitments are inscribed in each WTO Member’s GATS Schedule of Specific Commitments. This Schedule is a document where a Member binds itself not to impose any new measures that would restrict entry into the market beyond the specified levels of market access and national treatment in the document.

Article V:4 states in relevant part that an EIA “shall in no respect of any Member outside the agreement raise the overall level of barriers to trade in services within the respective sectors or subsectors compared to the level applicable prior to such an agreement”.

Cottier (1996), supra note 27, at 159.

Stephenson (2000), supra note 5, p. 519.

Cottier and Molinuevo (2008), supra note 22, p. 144.

Stephenson (2000), supra note 5, p. 519.

Ibid. See also Van den Bossche (2008), supra note 75, p. 712.

Cottier and Molinuevo (2008), supra note 19, p. 145. Article XXI of the GATS provides for situations where a WTO Member intends to modify or withdraw a commitment in its Schedule. Paragraphs 2, 3 and 4 of that provision essentially deal respectively with “compensatory adjustments” in favour of affected Member(s), arbitration proceedings in case no agreement has been reached between the modifying Member and the affected one(s), and “retaliation” by the affected Member(s) if the modifying Member does not comply with the findings of the arbitration.

Matsushita et al. (2006), supra note 30, p. 579. The legal maxim of statutory interpretation “lex specialis derogat lege generali” (literally meaning that a “special law prevails over general laws”), applies in situations of conflicts and may also give instructions on what a general rule requires in the case at hand. Article V:4 and Article V:5 of the GATS are therefore governed by this general/special relationship. On the study of “lex specialis” in international law, see for instance M. Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group on Fragmentation of the International Law Commission, UN. Doc. A/CN.4/L.682 (13 April 2006), available at: <http://untreaty.un.org/ilc/documentation/english/a_cn4_l682.pdf>.

Cottier and Molinuevo (2008), supra note 22, p. 146. It is again the place to note the vacuum in case no commitment at all has been made at multilateral level. In such a scenario, Article V:5 is of less significance, if at all. See also the text to note 69 supra.

See the Transparency Mechanism for Regional Trade Agreements Decision, WT/L/671, para. 3 of 18 December 2006, cited in Cottier and Molinuevo (2008), supra note 22, p. 149.

This has much to do with the unanimous decision method required within the CRTA to arrive (where, it is important to note, incumbents will also be voting) as well as risk-averse Panels’ strategies. On PTAs’ review mechanisms, see P. Mavroidis, Trade in Goods: The GATT and the Other Agreements Regulating Trade in Goods (Oxford: Oxford University Press, 2007), pp. 148-178.

The Transparency Mechanism for Regional Trade Agreements (of 14 December 2006) was meant to be a “complement” to the existing arsenal (namely Article XXIV GATT, Article V GATS, Understanding on the Interpretation of Article XXIV GATT, Decision on the establishment of the Committee on Regional Trade Agreements), but ended up being a “substitute” to it. On this score, see Mavroidis (2010), supra note 9, at 1149. See also Cottier and Molinuevo (2008), supra note 22, p. 150.

Mavroidis (2006), supra note 21, at 204

Stephenson (2000), supra note 5, p. 520.

Despite the strength of WTO judicial mechanism, disputes do not abound. There exists what has been described as a “mutual deterrence scenario”: Mavroidis (2006), supra note 21, at 211. This is the case even though it is clear that the party invoking the application of the provision related to the establishment of the PTA (i.e. the incumbent) bears the burden of showing that its scheme meets such requirement. It means that the challenging party (i.e. the outsider), in principle, bears no risk (if not that of seeing its own PTA facing challenges too). As Mavroidis puts it, motivations are possibly guided by the fact that “outsiders of today might be the incumbents of tomorrow”. As such, they gain from not challenging today what they might be benefitting from when they decide tomorrow to join the PTA, avoiding to “face the music [they] helped to compose”. Moreover, it is not excluded that challenge on a PTA provision might lead to retaliation on a complete different provision. To this risk-averse conduct, the author associates the often very high litigation costs (for sometimes countries with no diplomatic presence in Geneva). See ample discussion by Mavroidis (2007), supra note 101, pp. 171-177.

Cottier (1996), supra note 27, at 161.

Matsushita et al. (2006), supra note 30, p. 581.

That is, the external requirement not to impose overall barriers to outsiders to the CU and not to maintain those of the members of the FTA, higher than those in place prior to the conclusion of the agreement. See the Committee of Regional Trade Agreements, Synopsis of Systemic Issues Related to Regional Trade Agreements, Note of the Secretariat, WT/REG/W/37 (2 March 2002), para. 85; and, Committee on Regional Trade Agreements, Systemic Issues Arising from Article V of the GATS, Communication from Hong Kong, China, WT/REG/W/34 (19 February 1999), para. 11, both cited in Cottier and Molinuevo (2008), supra note 22, p. 139.

Cottier and Molinuevo (2008), supra note 22, p. 140. The level of development, as we will see, is also a criterion relevant in granting flexibility under Article V:3 GATS.

Matsushita et al. (2006), supra note 30, p. 581.

See text to note 102 supra.

It seems unlikely to happen because an incumbent would rarely want to help burst a PTA he helped to build even if some Members to the agreement are not complying with their obligations. Yet, it is not excluded completely. Whether the incumbent is in possession of a valid claim is another issue altogether. As for the outsider, it is always possible, but again unlikely on the grounds that the EIA has breached the legal discipline of its internal requirement (Article V:1 GATS) (which would probably have been dealt with by the CTS/CRTA, or simply because it is a bad move to adopt since the less trade liberalisation exists among PTA members, the less the risk of trade diversion, hence more gains potentials for outsiders). Still, the outsider could be tempted to challenge the EIA on other grounds including, but not limited to, Article V:4 GATS. However, recall our discussion supra note 105, and see “Article V:6” GATS infra.

On “flexibility”, see Section F infra.

Stephenson (2000), supra note 5, pp. 525-526.

WTO (1999), supra note 49, p.165, footnote 427.

Recall our discussion supra note 13 on LDCs services waiver.

Cottier and Molinuevo (2008), supra note 22, pp. 140-141.

Ibid, p. 141.

Ibid.

Ibid.

The UN uses the following criteria to identify LDCs: (i) a low-income criterion, based on a 3-year average estimate of the gross national income (GNI) per capita; (ii) a human resource weakness criterion, involving a composite Human Assets Index (HAI) based on indicators of: (a) nutrition; (b) health; (c) education; and (d) adult literacy; and (iii) an economic vulnerability criterion, involving a composite Economic Vulnerability Index (EVI) based on indicators of: (a) the instability of agricultural production; (b) the instability of exports of goods and services; (c) the economic importance of non-traditional activities (share of manufacturing and modern services in GDP); (d) merchandise export concentration; and (e) the handicap of economic smallness; and the percentage of population displaced by natural disasters. See the UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, available at: <http://www.un.org/special-rep/ohrlls/ldc/ldc%20criteria.htm>, accessed 08 June 2013.

Cottier and Molinuevo (2008), supra note 22, p. 142.

Ibid, p. 143.

Ibid.

Ibid.

The phrase “liberal rule of origin” is borrowed from Cottier and Molinuevo (2008), supra note 22, p. 146.

Article V:6 reads: “[a] service supplier of any Member that is a juridical person constituted under the laws of a party to an agreement referred to in paragraph 1 shall be entitled to treatment granted under such agreement, provided that it engages in substantive business operations in the territories of parties to such agreements.”

Cottier and Molinuevo (2008), supra note 22, p. 146.

Ibid.

Ibid, p. 147.

Article XXVIII (b). See the Negotiating Group on Rules, Compendium of Issues Related to Regional Trade Agreements, Background Note by the Secretariat, Revision, TN/RL/W/8/Rev.1, paras 111-112 cited in Cottier and Molinuevo (2008), supra note 22, p. 148, footnote 41.

Ibid, p. 148.

UNCTAD (2007), supra note 3, p. 7.

Ibid.

A. Mattoo and P. Sauvé, “Regionalism in Services Trade”, in A. Mattoo, R. Stern and G. Zanini (eds.), A Handbook of International Trade in Services, (Oxford: Oxford University Press, 2007), p. 253.

Ibid.

Ibid.

Ibid.

Ibid, p. 254.

Ibid. In fact, it is the case with the Andean Community agreement that is said, however, to have adopted a “somewhat different version of the negative list”: see Ibid, footnote 33.

Ibid, p. 256.

Ibid.

Ibid.

Ibid, p. 255.

UDEAC stands for the Customs and Economic Union of Central Africa – a post-independence regional grouping formed in 1964. Worth noting is that it’s during UDEAC years that the EC and ACP conventions (Lomé I et seq) were entered into. Also, this period is marked by the creation of another, hence overlapping, central African regional grouping, as a concretisation of the Lagos Plan of Action: ECCAS (in 1981). CEMAC Treaty of 1994 was further revised in 2008.

See also Article 2 CEMAC Treaty (Revised).

Article 6 CEMAC and Article 55 CEMAC (Revised). This can qualify as a “semi-open” regionalism in that any African State can join the scheme (kind of “open”), but limited to African only (sort of “closed”).

See WTO documents WT/COMTD/N/13 and WT/COMTD/24 of 29 September 2000. See for instance paragraph 2(c) of the Enabling Clause that allows less developed Members to enter into PTAs not meeting the strict requirements (of reciprocity, substantial all the trade, etc.) of Article XXIV GATT.

Cottier and Molinuevo (2008), supra note 22, p. 130.

See the second intent of the Preamble of UEAC Convention.

Per Article 2(c) UEAC Convention.

Article 3 UEAC Convention (Revised).

This is the provision of Article 13 of the UEAC Convention pertaining to the “common market”. These Balassa’s five stages are the following: free trade areas, customs unions, common markets, economic unions and complete economic integration as the final stage. See Bela Balassa, The Theory of Economic Integration (Homewood, IL: Richard D Irwin, 1961), p. 2.

UNCTAD, Economic Development in Africa Report 2009: Strengthening Regional Economic Integration for Africa’s Development (Geneva: UNCTAD/ALDC/AFRICA/2009), p. 14.

Ibid.

See UNCTAD Handbook of Statistics 2011 (TD/STAT. 36, 18 December 2011) available at: <http://unctad.org/en/Docs/tdstat36_en.pdf>, accessed 15 June 2012. Note ECCAS’ share of services export over the same period is almost twice that of CEMAC thereby militating in favour of a “merger” of these blocs for a meaningful impact.

Hoekman and Sauvé (1994), supra note 29, at 314.

Ibid, at 313.

While proponents of PTAs on the one side of the spectrum argue that they bring about large trade creation effects, the opponents on the other side consider PTAs harmful for global welfare. For the formers, see for instance Baldwin (2006), supra note 2. See Also R. Baldwin and E. Seghezza, Are Trade Blocs Building or Stumbling Blocks? New Evidence, CEPR Discussion Paper 6599 (2007). For the latter, see J. Bagwati, The World Trading System at Risk (Princeton, NJ: Princeton University Press, 1991); P. Krugman, Is Bilateralism Bad? NBER Working Paper No. 2972 (May 1989).

UNCTAD (2007), supra note 3, p. 6.

A. Mattoo and C. Fink, Regional Agreements and Trade in Services: Policy Issues, World Bank Policy Research Working Paper No. 2852 (June 2002), at 4.

Ibid, at 5.

Ibid.

Ibid.

Article 27 UEAC Convention as read together with Article 13(d) (Revised).

E. Gnimpieba Tonnang, La libre circulation des personnes et des services en Afrique Centrale: entre consécrations théoriques et hésitations politiques, 71 Juridis Périodique (2007), at 94-95.

Ibid, at 95 footnote 95. This can appear as a limitation though because it allows the benefit of “national treatment” only if a service provider is linked somehow with the economy of the country in which the treatment is sought and not in the territory of any other member of the community. This may call for a “mutual recognition”-type of principle akin to what obtains in the European context (with the celebrated Cassis de Dijon jurisprudence).

Ibid, at 96 footnote 103 on Article 9 of the Law n° 90/031 of 10 August 1990 regulating commercial activities in Cameroon.

Ibid, footnote 106.

See for instance ACORD, Economic Partnership Agreements: Jeopardizing a United Africa, Policy Briefing Paper No. 4 (June 2007), available at: <http://www.acordinternational.org/silo/files/economic-partnership-agreements-cjeopardising-a-united-africa.pdf>, accessed 16 January 2012.

See notes 102 and 103 supra.