Negotiations for the Common Market for Eastern and Southern Africa (COMESA) Common Investment Area (CCIA)

Background to the CCIA: Strengthening Regional Integration

FTA allows goods qualifying under the COMESA Rules of Origin to be traded without payment of import duties CCIA goes a step further in regional integration by allowing investors the freer movement of capital, labour (that is, management and technical skills), goods and services across borders of Member States. AIM: to attract greater and sustainable levels of investment from within and outside the region by creating investor confidence, improving general business environment that would make it easier for investors to operate in more than one country in the region COMESA Customs Union will then improve movement of goods within the region

Presentation will discuss:

Authority of Heads of State declaration of COMESA as a Common Investment Area in 1998. Consultations Capacity building activities in conjunction with UNCTAD and other partners The 4 Rounds of Negotiations Adoption of Investment Agreement for CCIA in May 2007 by policy organs

Declaration of COMESA as a Common Investment Area

Made in 1998 at Kinshasa, DRC by COMESA Heads of State Details were left to the Secretariat to work out

Conceptualisati on
2002 to 2003 Secretariat produced CCIA Policy Paper and draft Investment Agreement for the CCIA based on ASEAN Investment Framework Agreement

Consultations

Wide national and regional consultations took place bet. August November 2003 on the Draft Agreement and on the Policy Paper

Aim was to: (i) raise awareness of the concept and benefits of the CCIA in the context of COMESAs regional integration programme, (ii)discuss with stakeholders what the CCIA is (iii)solicit input from private and public sector stakeholders on the content of the draft Agreement

Capacity Building

COMESA had funded and facilitated UNCTAD Distance Learning Course on Negotiating IIAs for members of TWGs from August to Sept. 2004 Purpose was to build the technical capacity of M/S so that they were able to effectively understand and eventually negotiate the contents of the draft Investment Agreement for the CCIA

Regional Negotiations

4 rounds of negotiations held in Zambia, Malawi and Swaziland on contents of Investment Framework Agreement for the CCIA Technical support from UNCTAD, Commonwealth Secretariat and International Institute of Sustainable Development (IISD)

Regional Negotiations: Dispute Settlement

Dealt with at Rounds 2, 3 and 4 At Round 2 discussed state-state dispute resolution and concluded quickly (read Articles 26 and 27 of CCIA Agreement) First discussions on investor-state where investor had choice of going for either ICSID, national courts, COMESA Court Provisions were not very detailed

Regional Negotiations: Dispute Settlement

Round 3 discussed investor-state in greater detail After Round 3 amended Agreement to give negotiators alternatives to ICSID resolution of investor-state dispute, such as that contained in IISD model agreement Round 4 negotiators settled for either competent, national court, COMESA Court of Justice, international arbitration (ICSID, ICSID Additional Facility Rules, UNCITRAL Arbitration Rules, any other arbitration institution

Negotiations: Dispute Settlement

Article 28 contains certain improvements to international arbitration such as: Artcile 28(5): initiation of arbitral tribunal, pleadings, evidence and decisions shall be available to the public Article 28(6): Procedural and substantive oral hearings open to the public Article 28(8); amicus curiae submissions

Secretariats aim was to reduce risk of investor initiating disute settlement procedure Investor could only institute proceedings if
investment had been specifically registered in member state where investment was made Defined terms like fair and equitable treatment, COMESA investor Investor can only sue for member states breach of Part Two, which deals with member state obligations

Adoption of Agreement by Policy Organs

COMESA Heads of State adopted the Investment Agreement for the CCIA in May 2007

THANK YOU FOR YOUR KIND ATTENTION

Contact Details: tfmwiko@fnclegal.com