Distr©
LIMITEQ'
August 1981
• Original : ENGLISH
v.
.V
ECONOMIC COMMISSION FOR AFRICA
Multinational Programming and Operational
Centre (MULPOC) for Eastern and Southern African StatesThird Extraordinary Conference of Ministers of Trade, Finance and Planning of Eastern and Southern Africa
12-16 October 1981, Addis Ababa, Ethiopia Meeting of Attorneys-General or their Senior
Representatives from Eastern and Southern African States
19-22 October 1981* Addis Ababa, Ethiopia
DRAFT STATUTES OF THE TRIBUNAL OF THE PREFERENTIAL TRADE AREA FOR EASTERN AND SOUTHERN AFRICAN STATES
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._. ECA/mjLPOC/Lusaka/PTA/lx/3A ev. 1
Introduction
It would "be recalled that as a result of the decisions taken by the Fourth .Meeting of the Lusaka MULPOC Council of Ministers and Second Extraordinary Meeting of .Ministers of Trade, Finance and Planning of East and Southern African States, Draft-General Provisions
concerning the composition, competence and the matters relating to the Tribunal of the PTA to be prescribed by the Authority of the PTA at its first meeting, were submitted to the Meeting of Officials from Eastern and Southern African States concerning the. finaliza—
tion of' the Draft Treaty for the Establishment of a Preferential Trade Area for Eastern
and Southern African States held at Addis Ababa, Ethiopia 12-16 May 1931. The -Draft
General Provisions were considered by the Meeting of Officials which took the followingdecisions. ...
"On the composition,of the Tribunal, the meeting decided that there should not be full-time members of the Tribunal but that thsre should be a Panel of ten persons including s. Chairman of the Tribunal appointed by the
Authority, from vihich the Chairman would choose four others to sit v.diih
him on a dispute as and when the need arose. It :was also "agreed'that all'. . members, of the Panel should, apart from their professional qualifications and experience and requirement to be nationals of the member States of the . PTA, be fit and proper persons of appointment to the Panel. It was also agreed that, whilst the Chairman should have legal qualifications, thesame need-not necessarily apply to the other members of the Panel."* . . .
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On the issue of the term of office of the members of the Panel, it was agreed that this should not exceed five years and that members of the Panel should be eligible for re-appointment. It was also pointed out that care should be taken when making appointment at the end of the term
of office of the members of the Panel to re-appoint some of the outgoing : "'■
members so as to maintain continuity of knowledge and experience.
On the question of the temporary disqualification of a member of the Panel ...- from sitting on the Tribunal because of his interest in a dispute before the Tribunal, as well as the question of the appointment of a member of the Panel, it was decided that these 'matters could be dealt with under the rules of procedure of the Tribunal. Since these were, technical legal matters, it was decided that they should be considered by the Meeting of Attorneys-General or their Senior Representatives from Eastern and Southern Africa.
The Meeting decided that the decisions of the Tribunal should be delivered in public sessions except in cases involving disputes among member States which could have political repercussions. Such decisions should be delivered <
before the parties privately. Where a decision reached by the majority of of the members of the Tribunal was delivered in public the dissenting members may deliver their opinions or record their dissent in public.
Par-e ?.
The r?eetin,v cTccir:cc" that advisory opinions of the Tribunal ray be re:.v.2sted by the Council either on its ot.1i initiative or at the request of a jr.c^ber [ State, -It.-was also cecir.ee' that a re;; her State vrliich was not a party to a dispute1'before the Tribunal could, if it -res able to establish to the cati_
sfaction of ths Tribunal tl;.?.t its interests vzr-s lilicly to be directly affected by the decision of the Tribunal, intervene in that case, but li:::itin/its
submissions to supportin- or opposin; vhe nr-_■»•outs of a party to the dispute.
The »ieetin; confir^d that only member Stater -ould be able to tr;.;c matters before the^Tribunal. The ieetinr, hoTiev-r, ^id^d that provisions
contained in the ^raft General Provisions on tic underta'.-.in-;; by -ei,:ber States not io submit disputes -.risin; out of the Treaty to any method of settle-exit
except as provided for in the Treaty, should b--. iv-intained.
Hie pectin/, then decided that the Draft 7encr-l Provisions, or Statutes concerning; the Tribunal of the Preferential Trr.'.-e Arc-, .for Eastern =^d Southern African States sliould be re-drafted i"; t/.s li'ht of the r.bo^e
policy decisions talcen by the i-eeiia.- as sot out above if tlisv are confirmed by the Resuneri .Session of the ^l^r-.&- Conference -f ["inistnrc of Traoe, finance and Plannin: of Astern and Southern /frica, or such other policy
decisions as the. .'lesui.-ed Session r.'.i. ht tr.^c-- r,":c nectin- also cccided
"that the rc*draftin^ could be un-"erja>en by the i'^tin.-; of /rttom-ys-Ooneral or their Senior ^oprcccsit^tivcs fro- :>.r.tciv. ?-id Southern .Africa. States if possible, durin; t'13 course of xlio ;?7ccti:v 0£ '^.-.■s ">cr,upe;" Sessic""
The above decisions of th-:- ] 'ectin; of Officials ycre endorsed by the "iesu-^c' Session of the Tinlar;ed Co:iL3rence of !"inistorc of Trade, finance and Plannin>- of rCastera rjid Southern /_;rica held at A'V.is Ababa, Ethiopia lC-^1 Pay r;Ol and the folloT-:in.~ Draft Statutes O:T the Tribunal of the PTA which is b-in;- subrdtte'1 to the Second I'eetin- of Atton'.cys-^eneral or their Senior Representatives fro:- Eastern and Southern /ifrican States, c/;t-rpts to incorporate tLosv'. decisions.
i^rMl .>-":-3-.-g.l Statutes of the Tribunal of the Preferential
ira'-e Area for ^.astera and Southern /--Tricgji States
In exercise of the pono:rs conferred upon the Authority of ihc Preferential Trade Area of Astern and Southern African States by paragraph ?. of Article 11 of the Treaty
^■or the Establish; eat of a Preferential Trade Area for l^r'com anr Soutliern African
■^<-avcs, the follovrin. Statutes are hereby prescribe-:'.
Article 1: Interpretation In those General ?rovisio:.ic:
-■■•©
"Authority11'-eans the Authority of the Preferential \?rade "Areiv-established by :
Article S of the treaty; . ■"■" ■
.,„ ■■■ -• ^-v-^,-1 -* »■-•-.- ^-e^c e^M-V^'by Article '? b:T-the Treaty;
"Council means ■•erne Council — i-^-'-Ci.s w.v-.-j.--- /
■Member State", orfeber States'1 iv.eans a•Terber State or Terser States of the
Preferential Trade Area; "' ■ ■■ . ; ,
"Preferential Trade Area" r.e^s the Preferential Trade Area for Astern and
Southern African Stater, established by Article ?. of the Treaty;
:..^eatyV.,leans, the treaty., for the establishment .of the Preferential Yrada Are*Tv"
"^ribunarV.-eshs tl>e:'Jribun&l of the Preferential Trade Area established by. ,
Article 11 of the .Trep-ty. :■.."" ■ . ; '" -.
Article '?.: Ss'tablisiy.cat of the Tribunal
1. . The.'iiribunal es^bHshec by Article 11 of the Treaty, shall "onaure the proper .
application or interpre^ion' of the provisions of the Treaty ?M adjucic^te upon such ..disputes, ec.r^ay'be refei-oc to it in accordance -fith the provisions of the Treaty,
2. The Tribunal shall be constituted and shall ■'perSom its duties in accordance .. :
with the Treaty and thes^ Str.tutes. : . ,
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/jtjcl-e _j;-. Co^positiai of tlie Tribunal : . .
1. There shall be r. Chaim^i of the tribunal i!ho shall be r.npointec.by,..the Authority and Ohall be chosen fron c, ■.on.-.: nationals of the renber States of ir^rtiality and.
independence -ho fulfil clie conditions required for the holdinr of the hi;-;hest judical
office in-:their respectiyc countries or uho are jurists of recognized competence. ;: ■ ->. The Authority,1 in consultation with thesChairman, shall appoint ten persons froi;- anonv] nationals o^ tlieT.cr^er 3"tat^-oi ii-parti^Iicy aivl independence-:ith extensive ■■
knoirled^c or experience O:'J industry, corar.erce or public affairs'to forr. a Panel' frov.:
which K:er..berE of tjic .Ti'ibun.-.l :?ay be selected fro:; ki;-s to tir-e.
3;; Thejfribunal shall be .composed of. the' Chairman;aiy\ four members selected by the.
Chain:-an fror:- the Panel referred, to in paragraph Z of this Article. ■ .. ■ .
Article h: "era of C-JT;Tic_e ... ...
1. ^ The'"Chairr:an ahd =--.sr.berc of t!:e Panel, shall hold office for's^c;/ period, not- ■
/hit / d th ■ id
TheChairr:an ahd .r.c ^
e less than five ye^c, as ^-ay: be determined by the /authority / and the ■■ period of office' shall ref lect -cue desirability- of securing continuity ir. vh-3 composition -.
of the Tribunal.
2. The Chairman and fibers of the Panel shall be eligible for reappoints-.enir".
3.': Ifthe Ghaiman or _a ^-.ber of ..the Tribunal is directly or ihfirsctly interested
in z case Before the,Tribunal he shall i--r-ediftely. report the nature of.-'his interest to
/I ■ULP0C/Lusa1.»/P?A/Xi:/3/ney • 1
TV'"? /-
ti- Authority or the Chairnan respectively, and if the interest is such that it «
be undesirable for the Chci—an or the r^ber to tahe part in that cr.se the Autaorivy ^ or the Chairman, as the cr.Co ,-;,y be, shall replace hin with another-Y,«*er of tne innc.
A. 'There the Chairs is replaced in accordance «ith paragraph 3 of this Article the :^ber of the Panel appoints by the Authority to replace the Chairman shall -, as Chairman for that case, r,-ul .hall have curinr the peno'.: -ic is aca.V., all .he po..c_.
and exercise all the functions of the Chairnan.
Article 5: Oath an-:.-, doclr^ratlon .■
. , . ■ -' ..t rt -^ ■„,..■- ■-!...r. t-sp o:-?i*->-;an of the Tribunal 1. Before entering upon ti:eir autiso xor u:e ,-x.s, .i.-, t.x .,.. i- ^
and such v-ertbers of the Pr-id aC ;-x:y constitute the tribunal, shall m public session ^ individually undertake, by oath or affixation, to perforr their dutien inpartrally ant-, conscientiously and to preserve the secrecy of the Tribunal's deliberations.
P. TJhen- entering upon thoir duties for the firct tire, the Chains of the ^ribunal and: such nepers of the Panel as n;ay constitute the Tribunal shall ,,a.:e a declaration ,o the effect that they .Trill, both durinr and after the termination of their cice, reapecv the obligations resultin-; therefrom and in particular the duty of oxercisin. aonec.y anc, discretion ar vr.-zwa the acceptance, after their tor--, of office, of certain pocinons o, benefitsr^nd -Jill abide by the direction of the Chainr&n in cassc of doubt.
Article 5: '-Zoldin;-- of P^^_ offices .
-.cent With the conc^t of the authority, the Chairr,an of the Tribunal shall neither hold any political office or any office in the service ofa Ke^ber State or tne- Pre.ere^a-
Trade Areas, nor en;;a.'c in ?dv/ trade, vocation or. profession.
Article 7. Heci'iiation . ..''."
7. 'tte'ehaiman of the Tribunal :,ay at any ti::e resini his office by letter delivered
7. tteehaiman of the Tri
to the Secretary-General of the Preferential Trade Arc^ for tranarasoion vo eny y
c^thority, but his reci-n^-ion shall not talta effect until hi^ ^uccoooor enters upon
his duties. ■
2. A ,^ber of the Penal :,*y at any tire miy. his office by letter delivered to^thc Chairman of the Tribunal for transriseion to the ^thority, but his rcC1/mat1On snail
not take effect until his successor is appointed.
/j'ticle c: . "epla.ce;-.:eat of ■■ei::ber .:
A person appointed -o replace the Chairr.:an of the Tribunal or a : .eaber of the Panel whose terr: Ov office IiC.a -ot expired shall be' appointed in the sare nanner as .yao -the Chair-an that -csr.ber arid for the reminder of the Chairman's or that reviber's ..terr.-os:
office. ; :
/irticle-.j/j. Coj-petence gil^he Tribunal
^e "ribum-l ^rU be cav-petant to accept and adjudicate upon all r-atters uhich
pursuant to the Treaty ^ these Statutes ray be referred to it, and chall also possess
iCA/l "ULPCG/Luc^.:- /PTA/E /2/Hevi 1
the jurisidic'ation specifically conferred on it bv there Statute.-..
.Article 10: lieforencc to the Tribunal by a r<s:iber State
f.iers the /.uthoi-ity or the 2punqil:^icGvi^uer;.^...oinCiii.j;'-cirec-Jiva to r. lW:bcr- ■ oj£\:3 suk' in the opinionof o;ir o:7 the. other ror.b.?:* ot^sc that directive is- not cor.:plio:
with"'--by the'Ve^ber State to -rhich it ic directe--" -rit.'un the period fired t^-P-in ■:■'■,-■:- other L-ember state r.r.y re::oi- tlie ruc^tion o:: sue!;. :ion-ca;:?li£nce to'V.e Tribunal.
ouall cc^oiO.or end ceterr.-ine every.reLereiico v:.c/.o to it pursurjit to vns irec-vy in giccorc-.caicc -.riv:.: tliece otaw.tsc &n:' tl:e rulec of procesc'.ure o:c the Tribunal
^;5hc;ir^^iv^ .^ >-^Uc cession a reasoned /.-.ecioion. whicli, subject to the provisions
o:: vnsGS Statuteo ac to rocti:Tic?.tion r.nc rericr, .shcJl be ;:in^l ?ja£ conducive anc not
open to appeal.
... ... __ _^rovi(£ecl that,. i:f t":.e tribunal concic-erc that in the opccif.l. circui-,-
Gtances of tl:e ca.oe.it is undesirable -Vlir.t.its e'ecision be.-deliverer]; . ■ , - in ""public, the '-Yibuiial ; :ay ;-al;e an or:"cr to thr.t ef:"ec.t znic deliver ito c.e :;, '.lee is ion before the parties privately.
°'"# ?"re ?iounril :sh"-il ^clivai- one csciaion or.ly.in recpsct of G-oir/ reference to it, -
•^ich shall be the r":ec"icioii of the '..Vibunal reached in private by majority verdict. In the event of the r.er/oors of the tribunal bein;: c'.ually c^ivicle^, the CI:air;.ian shall have
a C£.7-tin£- vote. -' ■■'■.■■ .■ . ■ - ■ ' ' . ■ ■■■■'•.'■■;■
^m Ix r. r-er-ber of t:ie '.'ribuiial -'.ocg not a; rec «ith the majority verdict reached
in respect of any reference, he :;»ay neither deliver a disoenUnr .opinion■■ nor refco^^^
ais dissent in public. ... . ...
Article IP.: - Advisor:' opinions of the Tribunal '■"'■ - '* '*
*i* S!l? CouUCil rr- OL1 i;;-- °'m initi.-tive or at t;-e i-e^uest of a Merber 3tat.-2, rc^uent
'v-e.Tribunal.^t6: :;ivc^n r/'vicory opinion ■rs^.Kii^:. Juections of la:: arisin.- fro:*" tlip. ' provisionppv .tne Vreaty'cuid thnf-rber States cliall in the case of every'such request"- have the.rirjht to'be :vg?voc<&/:ps and ta::e part in the ;prococc'inr;S. *-■-■■ ■-A----'
°.. A re-uest for an a^'vi-ory opinion v.nr'er para, raph 1 of this Article shall be :ia,-e y ;:-e£mc of a written request' containin;; an exact staterent of the Section upon
^^ich an opinion is ■ :-o—i-ed and shall be acco-paiiieci byr all documents lively to be''"""
o assit :' ''
o~ assista
3 . Upon receipt of a rc.v.-r,t und.nr oara-raph .*>. of this articl-'.tho ^c^i-str^ kiai%^~'-"-- Lor-cnrxch »ive notice thereof to the ; c; -ber States and notify thc>-; that.'the Tribun?!
wiir.be -prepared 'to ^6^t vrith±n rl^i-e to be fi;;o<: by the Chains,, bitten subr-ission or to hear, P/c a heariii;; :,cld for the purpose, orr.1 suU:lssionc relati-r to the'^uestion.
A. ^ The Tribunal shall, u-;loso for special reasons it •■.al:er. an order to the contrary,
deliver an advisory opinion ir. public session.
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5« In the exercise of its advisory function the Tribunal shall be guided "by the provisions of these Statues relating to references to the extent which it considers
them applicable. ...
Article 13: Interim orders and directions of the Tribunal
The Tribunal may, in any case referred to it, make any interim order or issue
any directions which it considers necessary or desirable,.
Article 14s Intervention
A Member State which is not a party to a case before the Tribunal may,, if it is able to establish to the satisfaction of the Tribunal, that its interests are likely to be affected by the decision of the Tribunal, intervene in that case, but its sub missions shall be limited to supporting or opposing the arguments of a party to the
caseo
Article IS' Acceptance of the Tribunal's decisions
1* The Member States undertake not to submit a dispute concerning the interpretation
or application of this Treaty, so far as it relates to or affects the Treaty, to any method of settlement other than those provided for in the Treaty.2, Where a dispute has been referred to the Tribunal, the Member States shall refrain from any action which might endanger the solution of the dispute or might aggravate.the dispute,
3. A Member State shall take, without delay, the measures required to implement a decision of the Tribunals
Article 16: Registrar and staff
1. There shall be a Registrar of the Tribunal who shall hold office in the service of the Preferential Trade Area and whose functions shall.subject to these Statutes and to the rules of procedure of the Tribunalf be determined by the Chairman to the Tribunal, 2« Before entering upon his duties, the Registrar of the Tribunal shall undertake, by oath or affirmation sworn or made before the Chairman of the Tribunal, to perform his duties impartially and conscientiously and to preserve the secrecy of the Tribunals deliberations,,
3. The Tribunal shall have such officials and staff, who shall hold office in the service of the Preferential Trade Area: as may be necessary to enable it to perform its functions,.
Article 17: Seat of the Tribunal
The seat of the Tribunal shall be at „• o««*o»«»«o«« »•••• •••••«
but the Tribunal may in any particular case sit and excercise its functions elsewhere within the Member States if it considers it desirable.
Article.18: Sessions .of the Tribunal
1. Subject to any direction which may be given by the Authority, the dates and length of sessions of the Tribunal shall be determined by the Chairman having due
regard for the Tribunal's obligations. ,
2. Subject to these Statues and to the rules of procedure of the Tribunal, the Tribunal shall sit in plenary session only as composed in accordance with paragraph 3 of Article 3 of these Statues.
Provided that, in any case where the Tribunal has commenced the hearing of a case before it and not more than one member of the Tribunal is'unable to continue such hearing and is temporarily absent therefrom, it shall be competent to the Tribunal, notvdthstanding the temporary absence of
such member and with the agreement of the parties to the. case before it, ' .. . to continue and determine the hearing of such case.
Artlole 19.: Functions of the Chairman
Notvdthstanding the provisions of these Statues', the rules of procedure of the Tribunal may impose functions upon the Chairman of the Tribunal sitting alone in relate
ion to administrative, procedural and other preliminary matters not being matters falling to be dealt with by the Tribunal by interim order under Article 13 of these Statutes.
Article 20: Duty to attend ■■. . ... .i.;^.*.^.i
Members of the Panel selected to constitute the Tribunal in accordance with para
graph 3 of Article 3 of these Statues shall be bound, unless they are prevented from attending by illness or other serious reasons duly explained to the Chairman of the
Tribunal, to attend all sessions of the Tribunal, .. .
Article 21: References .
1. Matters in dispute shall be referred to the Tribunal by a reference addressed to the Registrar specifying the subject matter of the dispute and the parties to it.
2. The Registrar shall immediately send a copy of the reference to all concerned.
Article 22: Representation before the Tribunal
Every party to a case'before the Tribunal shall be represented, by a person appointed
by that party for the case; a representative need not be a legal practitioner but he may be assisted by a legal practitioner entitled to appear before a superior court of any of the Member States.Article 23: Proceedings . .
1, The proceedings of the Tribunal shall consist of a vrritten part and an oral parti 2. The written part of the proceedings shall include the reference, the application;
the response to the application, the reply, the rejoinder and the submissions, together1 with all papers and documents in support;
EEA/MULPOC /Lusaka/m/lx/3/kev. 1
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3. The written part of the proceedings shall be presented.to the Registrar,.in the order and .within the time fixed by the rules of procedure or "by the Tribunal in. any particular caser and a copy of every paper or document presented by one party shall be communicated to the other party.
4« The oral part of the proceedings shall consist of the hearing by the Tribunal of witnesses, experts, representatives and advocates.
Article 24; Hearings
The hearing before the Tribunal shall be under the control of the Chairman and
shall be in public, unless the Tribunal decides otherwise or a party requests that the
public be not admitted. .■..'"
Article 25i Production of documents . "
1# The Tribunal may at any time request the parties to produce all documents and . supply all information or explanations which the Tribunal "considers desirable. Formal"^-"
note shall be taken of any refusal. . ' ■ ■
2j The Tribunal may also request a Member State, which is not a party to.the case, or an institution of.the Preferential Trade Area to supply all information which the
Tribunal considers necessary for the proceedings.
Article 26: Inquiries and experti opinions
The Tribunal may, in relation to any proceedings and at any time, charge any person, body or institution with the task of carrying out an inquiry or giving an. , expert opinion*
Article 27: Witnesses
1. During the hearing, relevant questions may be put to the witnesses and experts under the. conditions laid down by the rules of procedure of the Tribunal.
2. During the hearing the Tribunal may examine the experts and witnesses and ask questions of the representatives and advocates.
3. The Tribunal shall have, with respect to defaulting'witnesses, the powers granted to the superior court in the Member State where it is at the relevant time sitting,and
may impose sanctions accordingly.
4. Minutes shall be kept of each hearing and shall be signed by the Chairman.of the Tribunal and the Registrar.
Article 28; List_ of cases
; The list of cases shall be fixed by the Chairman of the Tribunal.
Article 29; ..'•.Costs ' ..: . : , -
Unless otherwise decided by the Tribunal, each party shall bear its own costs, :
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Article 30s Interpretation of decisions
In the case of difficulty as to the meaning or scope of a decision or an advisory
opinion, the Tribunal shall interpret it upon the request of any party or any insti tution of the Preferential Trade Area establishing an interest therein.Article 31s Revision
1- An application for revision of a decision may be made to the Tribunal only if it is based upon the discovery of some fact of such nature as to be a decisive factor, which fact was, when the decision was delivered, unknown to the Tribunal and to the
party claiming revision.2« On an appV.co/!;:: on for revision, the procedure shall commence, where the application is admissible, with a decision of the Tribunal explicitly finding that the new fact alleged does exist and is of such a character as to lay the case open to
revision, and declaring the application admissible on the ground,3« Before declaring an application for revision of a decision to be admissible, the Tribunal may require prior compliance with the terms of the decision.
4. No application for revision of a decision may be made after the expiry of five
years from the date of the decision.
Article 32; -fjul.es of the Tribunal
The Chairman of the Tribunal shall, after consultation with the members of the
Panel, make the rules of procedure of the Tribunal.Article 33s Amendment
The Authority may, after consultation with the Chairman of the Tribunal, by order from time to time, amend or add to these St&tivtes cad ths Chairman of the. Tribvnc-.l iisv r.fter consultation with the members of the Panel propose amendments or additions to
these Statues.
