Ljiljana Biukovic

The African Continental Free Trade Area (“AfCFTA”) Agreement was launched on March 21, 2018, after 44 African countries signed the AfCFTA agreement, and it subsequently came into force on May 20, 2019 after the first initial 22 countries assented to the same. The AfCFTA aims to create a continental-wide Free Trade Area, with the potential of boosting intra-African trade and galvanize structural transformation of African economies, with a view to promoting socio-economic development of Africa as a whole. The World Bank has proclaimed that the AfCFTA would create the biggest Free Trade Area in the world, in terms of the number of participating countries, connecting 1.3 billion people in Africa, with a combined GDP of USD3.4 trillion; and that if the agreement is fully implemented, it has the potential of lifting 30 million people out of extreme poverty by 2035. The thesis provides a chronological accounts of regional/ continental economic integrations treaties that have been previously adopted by African countries to promote economic development in Africa. However, those previous integration efforts did not achieve their intended objectives, hence the birth of the AfCFTA. The thesis adopts the doctrinal methodology in analyzing the texts of the AfCFTA framework agreement and the Phase I Protocols which have been adopted and have come into effect, namely: the Protocols on Trade in Good, Trade in Service, and Dispute Settlement. The thesis proposes amendment, where necessary, to some of the provisions of the treaties, for effective implementation, and so that the AfCFTA can produce more benefits to the peoples of Africa. The thesis also adopts a comparative methodology to analyze the implementation strategies adopted by Nigeria and South Africa, two of the biggest economies in Africa, drawing lessons from their experimentations for other African countries. Owing to the importance of implementation to the realization of the objectives of AfCFTA, this thesis proffers recommendations on how and what the state parties can do to ensure successful implementation of AfCFTA. The thesis concludes that the AfCFTA’s objectives are achievable, if the state parties show exemplary political will to implement and carry out their obligations under the AfCFTA.

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In the European Union (“EU”) public enforcement of competition law prevails. Private enforcement is scarce and has not been encouraged or advocated for until the end of 2014, when the EU Parliament passed Directive 2014/104/EU, which sets out an EU-wide framework aimed at promoting and facilitating private damages actions for parties harmed by anticompetitive behaviour.This thesis inquires whether Directive 2014/104/EU succeeds in creating sufficient and appropriate incentives for victims of competition law infringements. The main argument is that while the preparatory work leading to the adoption of the Directive focused on lowering the barriers of access to justice for victims of anticompetitive conduct and incentivizing victims to take legal action against infringing firms, the final version of the Directive partly misses these points. The limited access to evidence provided by the Directive undermines the goal of lowering the burden and standard of proof, because it will still be difficult for claimants to obtain the necessary evidence for building their case, especially in standalone actions. The complete lack of any provisions facilitating class actions for the recovery of damages fails to lower litigation costs and has the effect of keeping in a particularly disadvantaged position consumers and small firms, for which litigation costs are usually prohibitive. These problems are exacerbated by the limitations of public enforcement: public enforcement agencies, due to their limited resources, have to prioritize the violations that warrant enforcement action and let some infringements go unpunished. In this context, despite the consumer welfare objective of EU competition law aiming to prevent the situation where wealth is illegally redistributed from consumers to competition law infringers, the restricted ability of victims to recover damages has the effect of allowing competition law infringers to keep most of their illegal gains.

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This thesis explores whether international trade rules apply to Canada’s fresh water resources. In order to determine if international trade rules apply, in particular the rules contained in GATT 1947, GATT 1994, and NAFTA, three questions are posed by the author. The first question focuses the enquiry on the legal characterization of fresh water resources in the selected international legal instruments to determine the obligations contained in the trade agreements apply. The second question is, if the first question cannot be answered, what other interpretive tools can be employed to come to an answer. Finally, the third question is, if international trade obligations apply the the bulk export of fresh water resources, are there any exemptions which can be employed to limit or prohibit the bulk export of the resource. In order to answer these questions, the author applies a traditional legal doctrinal analysis. This provides a method of analyzing the legal texts of the international agreements and other legal materials in an orderly and systematic manner. Using this methodology, the author engages with the primary materials to determine the ordinary meaning of the words and phrases used in the texts. In addition to the analysis of the legal texts, the author reviews the history of the development of Canada’s international trade and foreign policy through the lens of the international relations theory of exogenous shock. By using the theory of exogenous shock as an interpretive aid, the author is able to provide justification in concluding that the preferred interpretation that Canada’s international trade obligations found in GATT and NAFTA do not apply to Canada’s fresh water resources.

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The thesis looks into factors that have resulted in the failure of Washington Consensus policies prescribed by International Financial Institutions (IFIs). The IFIs consider free trade, investment, privatization, and deregulation as key to removing impediments to the development of host countries. From a Law and Development perspective, the thesis argues for review of these policies, and suggests reforms in the institutional design, governance, and redefined role of IFIs and national governments. At host countries’ current stage of development the adoption of free trade policies based on comparative advantage will lock them in dead end professions or industries with low rates of return, and they will no longer be competitive in industrial production and international trade. After providing historical analysis of the economic policies of the developed countries the thesis argues that developed countries selectively adopted free trade to achieve their economic goals. The developing countries should also selectively structure creative protectionist and free trade policies. The thesis presents Pakistan as a case study and argues that in Pakistan’s specific non-economic circumstances IFIs need to acknowledge the redefined role of the state and facilitate a rule based, institutionalized, public-private partnership model. If privatization and deregulation are considered a panacea to address Pakistan’s governance and development problems, then it needs to be done in the right way. The thesis conducts comparative analysis of privatization and deregulation in the telecommunication and banking sectors of Pakistan, Poland, Hungary, and the Czech Republic, and highlights the importance of legal and institutional design in the pre- and post-privatization eras to achieve the desired goals. In the light of the comparative studies the thesis argues for reforms in the Privatization Act and incorporation of an Appellate Court/Tribunal to review privatization transactions in Pakistan. The thesis argues that instead of ranking host countries on the pace of their privatization, the IFIs rank them on how they privatize by incorporating good governance principles in conditions associated with their development mandate. The IFIs need to follow good governance in their own governance structure as well through proper representation of developing countries.

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In 2010 South Africa officially adopted a new Bilateral Investment Treaty Policy. The new policy brought to an end a policy review process that was initiated following an investor-State arbitration concerning legislation introduced in the South African mining sector, aimed at promoting equality in South African society, which allegedly breached South Africa’s international obligations in terms of the country’s Bilateral Investment Treaties with Italy and the Belgo-Luxemburg Economic Union respectively.South Africa’s new policy was introduced in the wake of various concerns that have been raised against the investment law regime, specifically with regard to the way in which earlier Bilateral Investment Treaties limited a State’s right to regulate, which could, in turn, negatively impact on a State’s right to development. One of the main limitations on a State’s right to regulate is the overly expansive application of the provision prohibiting expropriation of investments of foreign investors. If applied to any form of taking, including takings resulting from proportional and non-discriminatory regulatory measures that are in the public interest, States face the risk of their actions being challenged in investor-State arbitration. If such an arbitration tribunal finds the disputed regulatory measures to violate a State’s international obligations, States who have not drafted their Bilateral Investment Treaties carefully, will be forced to pay compensation to the investor based solely on the market value of the investment in terms of the standard of paying prompt, adequate and effective compensation.This thesis considers South Africa’s new policy against the background of these concerns. It focuses specifically on the standard for expropriation, the standard of compensation for expropriation and the role of investor-State arbitration in investment law. South Africa’s policy is placed in context through consideration of the Bilateral Investment Treaty policies of Canada and Brazil. Finally, through a study of various treaty models, the thesis considers ways in which these potentially problematic provisions could be drafted to address the concerns raised by South Africa. The thesis concludes that, despite legitimate concerns about the implementation of South Africa’s new policy, the policy itself is reasonable and appropriate in light of the country’s domestic priorities.

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Industry self-regulation and governmental regulation compete for the best model of Internet regulation. This thesis challenges the argument that they have to be antagonistic schemes and evaluates the possibility of cooperation in the form of co-regulation or ‘regulated self-regulation’. It uses a comparative method to analyze the preference for the regulatory models in Europe, the United States and Canada, which draws upon the role of governments in a historical context and the impact of fundamental rights in the respective constitutional frameworks. Before considering the peculiarities of Internet regulation, the thesis identifies and analyzes the advantages and difficulties of both self-regulation and co-regulation. Whereas self-regulation lacks democratic legitimacy, has little incentive to detect violations and to maintain high standards, governments have the ability to compensate for some of these problems. In the Internet context, this analysis reveals the need to deal with regulatory effects of code, transborder conduct, and ways to sanction non-compliance. However, governments with traditional command-and-control legislature have not adapted to these specifics. A system that would suit the Internet environment is composed of certification and accreditation of codes of conduct, and support of self-regulatory institutions. The thesis proposes ten criteria for efficient co-regulation that attend to fundamental values and favor an open, transparent collaboration. It further evaluates the substitution of governmental influence by external self-regulatory bodies, and the integration of Internet users to create a democratic link between regulators and regulated. The ten criteria are applied to some exemplary regimes to demonstrate practical application and ways to improve existing regulation. This shows the potential of models in which the public sector defines the goals and the private sector offers the solutions.

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