Gabrielle Marceau’s first brush with international trade law preceded her thirty-year career at the World Trade Organization (WTO). In 1990, she commenced her PhD at the London School of Economics, where she examined the extent to which regulating the abuse of market dominance could serve as an alternative to anti-dumping measures. This led to the publication of her monograph in 1994, *Antidumping and Antitrust Issues in Free-Trade Areas*, which was subsequently reprinted four times. The book offered a one-stop-shop on issues arising out of establishing both anti-dumping and anti-trust policies within free trade areas (FTAs).<fnref n="1" /> Her central premise is as follows. Anti-dumping measures restrict trade economically and should be phased out within regional trade areas, in which the adaptation of economic policies, importantly their competition policies, becomes a necessary step.<fnref n="2" /> Taking the *North American Free Trade Agreement* (*NAFTA*) as a case study, Marceau puts forward ways in which the parties could ensure consistency and cooperation to enforce competition laws and resolve jurisdictional conflicts in the applicable law.

In her work, Marceau throws a skeptical eye on anti-dumping duties, demonstrating that they may lessen competition and contradict national treatment principles under Article III of the*General Agreement on Tariffs and Trade* (*GATT*). According to Marceau, the phasing out of anti-dumping duties within an FTA would be the “minimum level integration necessary for a successful trade deal” leading to the expansion of internal competition.<fnref n="3" /> The critique was not new. Economists and lawyers alike have long documented the trade effects and welfare losses of anti-dumping duties.<fnref n="4" /> Offering an alternative approach, Marceau suggests that “the best safeguard against abusive anti-dumping procedures is strong enforcement of private anti-trust rights, both in the importing and in the exporting countries.”<fnref n="5" /> It reopened a discussion on the best ways to promote economic integration, particularly through the reinforcement of a robust and coordinated competition framework.<fnref n="6" />

The work was completed prior to the establishment of the WTO and the *Covered Agreements* coming into force. With the adoption of the Anti-Dumping Agreement in supplement to *GATT* Article VI in 1994, the landscape of trade remedies and anti-trust legislation changed significantly. While it brought a harmonization in anti-dumping procedures, it led to a rise in anti-dumping investigations.<fnref n="7" /> Amidst a world seeking deeper economic integration through the rise of regional trade agreements (RTAs), the need for coordination among competition policies also grew. Regional competition policy is complementary to free trade because the two polities share similar objectives such as eliminating barriers to entry and market foreclosure.<fnref n="8" /> Competition clauses are therefore the most frequently covered WTO-X policy area in RTAs.<fnref n="9" />

The late 2010s also saw to the establishment of the world’s largest regional FTA, the *African Continental Free Trade Area* (*AfCFTA*). After a five-year long negotiation process, on January 1, 2021, the *AfCFTA* came to fruition, introducing a 90% reduction in tariffs for goods and services. The *AfCFTA* is a first step towards implementing the pan-African vision of a single market, ensuring the free movement of goods and persons by 2063.<fnref n="10" /> With a view to creating the single market, the *AfCFTA* includes a *Protocol on Competition Policy* as well as provisions on anti-dumping and countervailing measures in the *Protocol on Trade in Goods*, which is supplemented by Annex 9 on Trade Remedies and *AfCFTA* Guidelines on Implementation of Trade Remedies. In contrast to the *NAFTA*, the potential trade-restrictive effects of intra-African anti-dumping measures may not raise the same level of concern within the *AfCFTA* framework. Intra-African trade remedies are seldomly applied, even when provided for under African Regional Economic Communities (RECs), which are regional groupings at various stages of economic integration.<fnref n="11" /> The elimination of intra-African anti-dumping duties may therefore understandably not be high on the integration agenda. The *AfCFTA Protocol on Trade in Goods* and the technical annex does not contain an equivalent provision to the European Union (EU) on the phase out of intra-African anti-dumping measures.<fnref n="12" /> That said, the recent levy of definitive anti-dumping duties imposed by Morocco on imports of school exercise books led to the first intra-African dispute, *Morocco—Definitive AD Measures on Exercise Books* (Tunisia), brought before the WTO in its history.<fnref n="13" /> As economic integration foreseeably progresses towards a single market, issues arising out of intra-African anti-dumping measures may become more salient.

While the interplay between anti-dumping and anti-trust regulation may not currently be a priority in terms of *AfCFTA*’s policy objectives, a central premise still rings true: an effective competition policy is needed to ensure deeper integration within RTAs.<fnref n="14" /> Free trade is undermined by cross-border anti-competitive conduct, export cartels, and regional market sharing within developing countries.<fnref n="15" /> Developing countries are at particular risk of anti-competitive behaviour due to their highly concentrated markets and deep-seated economic inequalities.<fnref n="16" /> As “competitive markets constitute the basis for economic development”<fnref n="17" />, a lack of regional competition law as well as enforcement mechanisms would undermine the ambitions of the *2063 Agenda*.<fnref n="18" /> Due to the general and specific deterrent effects of competition law enforcement, competition law is a discipline in which enforcement procedures become as important as the substantive rules.<fnref n="19" />

This contribution builds on existing literature on the role of competition law frameworks in RTAs in ensuring deeper economic integration by examining the institutional design and enforcement mechanisms of the *AfCFTA Protocol on Competition*. As effective competition law enforcement boosts intra-African trade, the design of the regional competition regulation matters. Based on the premise that competition regimes within RTAs must be tailored to defined policy objectives —encouraging the development of “own brands of competition law”<fnref n="20" />— the analysis builds on parties’ current efforts to implement a “more strategic approach towards international agreements tailoring the instrument to the real needs of the relationship”.<fnref n="21" /> Since the effectiveness of competition provisions in addressing market failures depends not only on the substantive rules but also on the institutional framework and enforcement mechanisms, the choice of instrument should reflect the FTA’s policy objectives.<fnref n="22" /> Section I therefore provides an overview of the regulatory landscape underlying *AfCFTA*’s *Protocol on Competition*, drawing out the unique policy objectives and challenges for a continent-wide competition policy. Section II situates the selected institutional model for *AfCFTA*’s competition regime globally. It draws lessons from those competition regimes embedded in other mega-regional FTAs and evaluates the *Protocol on Competition*’s general framework design in terms of *AfCFTA*’s policy objectives. Section III digs deeper into the contours of the *Protocol on Competition* while Section IV concludes by pinpointing key focus areas for the implementation of the regime with an eye to facilitating deeper economic integration.

<footnote n="1">Robert A Lipstein, “Anti-Dumping and Anti-Trust Issues in Free Trade Areas. By Gabrielle Marceau. New York: Oxford University Press, 1994” (1995) 89:4 AJIL 233 at 328.</footnote>

<footnote n="2">Gabrielle Marceau, *Anti-Dumping and Anti-Trust Issues in Free-Trade Areas* (Oxford: Clarendon Press, 1994) at 312.</footnote>

<footnote n="3">*Ibid* at 192.</footnote>

<footnote n="4">See Thomas J Prusa, “The Trade Effects of U.S. Antidumping Actions” in Robert C Feenstra, ed, *The Effects of U.S. Trade Protection and Promotion Policies* (Chicago: University of Chicago Press, 1997) 191.</footnote>

<footnote n="5">Marceau, *supra* note 2 at 158.</footnote>

<footnote n="6">See Douglas E Rosenthal and Phedon Nicolaides, “Harmonizing Antitrust: The Less Effective Way to Promote International Competition” in Edward M Graham and David Richardson, eds, *Global Competition Policy* (Institute for International Economics, 1997) 355 at 358—9.</footnote>

<footnote n="7">Meredith Crowley, “*The Worldwide Spread of Antidumping Protection*” (2004) No 198 Chicago Fed Letter, online: <chicagofed.com>[perma.cc/EG2V-2F76].</footnote>

<footnote n="8">Yo Sop Choi & Andreas Heinnemann, “Competition and Trade: The Rise of Competition Law in Trade Agreements and Its Implications for the World Trading System” (2020) 43:4 World Competition 521 at 522.</footnote>

<footnote n="9">Claudia Hofman, Alberto Osnago & Michele Ruta, “The Content of Preferential Trade Agreements” (2019) 18:3 World Trade Rev 365 at 381.</footnote>

<footnote n="10">*Agreement Establishing the African Continental Free Trade Area*, 5 February 2021, African Union (entered into force: 30 May 2019).</footnote>

<footnote n="11">These are the Common Market for Eastern and Southern Africa (COMESA), East African Community, Southern African Customs Union (SACU), Southern African Development Community (SADC), West African Economic and Monetary Union (WAEMU), Economic Community of West African States (ECOWAS), Economic Community of Central African States (ECCAS), and the Central African Economic and Monetary Community (CEMAC). See Kamala Dawar & George Lipimile, “Africa: Harmonising Competition Policy under the AfCFTA” (2020) Concurrences N° 2-2020 Art. N° 93472 246. Also see Gerhard Erasmus, “Why does the AfCFTA provide for Trade Remedies?” (23 November 2021) Tralac, online: <tralac.org> [perma.cc/WT2M-9TRQ] [Dawar & Lipimile].</footnote>

<footnote n="12">The key provision being Article 17.1 of the *Protocol on Competition*: “Subject to the provisions of this Protocol, nothing in this Protocol shall prevent State Parties from applying anti-dumping and countervailing measures.”</footnote>

<footnote n="13">WTO, Morocco—Definitive Anti-Dumping Measures on School Exercise Books from Tunisia, WTO Doc WT/DS578/R (27 July 2021) and Add.1.</footnote>

<footnote n="14">As Fox noted, AfCFTA Phase II negotiations should not merely cast competition law as an “afterthought [that] may be sacrificed when it conflicts with nationalistic interests, such as competition-restraining anti-dumping laws”. See Eleanor M Fox, “Competition, Development and Regional Integration: In Search of Competition Law Fit for Developing Countries”, in Josef Drexl, Mor Bakhoum, Eleanor M Fox et al, eds, *Competition Policy and Regional Integration in Developing Countries* (Gloucestershire: Edward Elgar Publishing, 2012) 287.</footnote>

<footnote n="15">The arguments put forth in Micheal A Utton, *International Competition Policy* (Gloucestershire: Edward Elgar Publishing, 2008) are analysed by Kamala Dawar and Peter Holmes, “Competition Policy” in Jean-Pierre Chauffour & Jean-Christophe Maur, eds, *Preferential Trade Agreement Policies for Development: A Handbook* (Washington, DC: World Bank, 2011) at 349.</footnote>

<footnote n="16">Vellah K Kigwiru, “The Cooperation on Competition Policy under the African Continental Free Trade Area (AfCFTA)” (2020) 17:1 Manchester J Intl Econ L 98 at 98.</footnote>

<footnote n="17">Mor Bakhoum, “Competition (Law) and Access to Telecommunications Technologies in Sub-Saharan Africa” in Damien Gerard and Ioannis Lianos, eds, *Reconciling Efficiency and Equity: A Global Challenge for Competition Policy* (Cambridge: Cambridge University Press, 2019) 152 at 154.</footnote>

<footnote n="18">See the seven aspirations of the AU’s Agenda 2063, such as relieving poverty and facilitating integration. African Union Commission, “Agenda 2063: The Africa We Want” (September 2015), online (pdf): <au.int> [perma.cc/X5KP-KNNX].</footnote>

<footnote n="19">Ratshidaho Maphwanya, “Cartel likelihood, Duration and Deterrence in South Africa” in Jonathan Klaaren. ed, *Competition Law and Economic Regulation in Southern Africa: Addressing Market Power in Southern Africa* (Johannesburg: Wits University Press, 2017) 49 at 50.</footnote>

<footnote n="20">This position is in line with recent literature exploring competition frameworks in terms the objectives of international cooperation. Valerie Demedts, “International Competition Law Enforcement: Different Means, One Goal?” (2012) 8:3 Competition L Rev 223 at 225. Fox, *supra* note 14 at 273.</footnote>

<footnote n="21">Eva Valle Lagares, “International Agreements Regarding Cooperation in the Field of Competition: The New Strategy of the European Commission” (2010) 1:2 J Eur Competition L & Practice 155 at 156.</footnote>

<footnote n="22">Seema Gaur, “Competition Provisions in Trade Agreements How to Realize their Potential?” in Rijit Sengupta, ed, *Pursuing Competition and Regulatory Reforms for Achieving Sustainable Development Goal*s (New Delhi: CUTS International, 2015) 357.</footnote>
# I. Depicting the Regulatory Landscape: Competition Law within the *AfCFTA*

Competition Law on the African continent is a recent phenomenon, originating in the 1990s. From 1990 to 2010, 28 States adopted a national competition law for the first time, which increased to 36 by 2020.<fnref n="23" /> Competition law within Africa developed asymmetrically, and the current landscape can be understood in the following three stages: (1) 25 countries implemented national competition legislation and a national competition authority (NCA);<fnref n="24" /> (2) 13 countries enacted competition legislation, but do not have a NCA;<fnref n="25" /> (3) 17 countries have no competition legislation or are at early stages of implementation.<fnref n="26" /> The heterogeneous pattern of national competition laws reflects diverse development levels and large disparities present among African markets. While seven African countries are upper middle income countries,<fnref n="27" /> 33 countries are least developed countries (LDCs).<fnref n="28" /> 50% of Africa’s cumulative GDP emanates from Egypt, Nigeria and South Africa while the six African island countries cumulatively contribute 1%.<fnref n="29" /> African markets are highly concentrated and have high barriers to entry, involving market restraints such as the abuse of buyer power and anti-competitive business models.<fnref n="30" /> Further distortions in the market for LDCs specifically include the presence of a large informal economy, the dominance of State-owned enterprises (SOEs) and multinational corporations, and the lack of provision of public goods.<fnref n="31" /> For this reason, African countries have varying enforcement priorities: some address cartels, whilst others focus on market dominance abuse, mergers or the creation of a competition culture. The latter remains challenge for many countries.<fnref n="32" /> It is said that the first priority is to “create markets before competition can exist.”<fnref n="33" /> The implementation of the *AfCFTA* *Protocol on Competition* will aim to accommodate both differences in the development of regulatory frameworks as well as market conditions on the Continent.

Particularly in LDCs, a lack of capital and resources presents a challenge to the implementation and enforcement of competition laws. For example, Cabo Verde enacted its first competition legislation in 2003, however due to financial restraints, it is yet to operationalise the competition regime.<fnref n="34" /> Competition law enforcement is particularly costly. The EU annually spends 800,000 euros in training national judges in EU competition law to buttress its competition culture.<fnref n="35" /> As implementation costs depend on the prevalence of a competition culture and the market conditions, they are higher in developing countries.<fnref n="36" /> Competition law enforcement frequently falls short of a national priority: “given the competing short-term pressures on scarce resources, national governments do not always look favourably on regional competition provisions that would yield benefits only in the longer term.”<fnref n="37" /> While one solution is to promote the provision of technical assistance from upper-middle income countries to LDCs<fnref n="38" />, “few *AfCFTA* countries would have the budget to pay for the technical assistance that LDCs in the *AfCFTA* may require”.<fnref n="39" /> Nonetheless, studies show that “the costs of antitrust non-intervention in many circumstances are likely to be higher than the costs of intervention” for developing countries<fnref n="40" />, as the costs of under-enforcement are greater in markets with high barriers to entry.<fnref n="41" /> Furthermore, the experience of Nigeria evidences that rapid increases in enforcement capability can occur in newly formed competition regimes where there is sufficient political support.<fnref n="42" /> Such developments additionally lead to positive externalities in neighbouring States through transboundary spill-over effects.<fnref n="43" /> Therefore, a cost-benefit analysis encompassing low implementation costs and efficient enforcement mechanisms for LDCs is essential when implementing an African competition framework.

Despite varying development stages and income levels, African competition regimes share a common interest of promoting inclusive development, in sharp contrast to the concerns of competition regimes such as the US and the EU.<fnref n="44" /> The equitable distribution of wealth is not prioritised in US anti-trust law enforcement, as it may undermine aggregate efficiency.<fnref n="45" /> However, it should underpin the competition laws of LDCs in order to target goals such as eradicating poverty. Therefore, the underlying objectives of the *AfCFTA* *Protocol on Competition* should concern “economic efficiency but also fairness, [which] may call for a limited redesign of competition law” enforcement.<fnref n="46" />

Diverse competition cultures throughout Africa not only originate from differing market conditions and development stages, but also political interests, which pose a further challenge to shaping an African-wide competition policy. With an estimated 433 million Africans below the poverty line, ensuring regional market efficiencies is less of a priority for some countries.<fnref n="47" /> The establishment of State monopolies and SOEs may pose internal threats to implementing a regional competition regime as “the removal of border barriers will fuel the incentives of governments and firms to find other ways to re-erect barriers and protect their historical advantage”.<fnref n="48" /> Such conduct is currently permitted under the *AfCFTA* *Protocol on Trade in Services*, which legalises State monopolisation of services.<fnref n="49" /> Furthermore, national competition policy frequently makes exceptions for “historical relics”, which are particular private behaviours culturally present in States.<fnref n="50" /> The nationalist interests of countries may undermine an African competition framework as regional competition laws must be implemented in line with national procedures. For example, national procedures permitting the opening of investigations into anti-competitive behaviour at the request of an external NCA must be implemented domestically to facilitate regional co-operation.<fnref n="51" /> The *Protocol on Competition* should therefore strike a balance of promoting regional competition interests over national ones but leaving sufficient room for State Parties to voice and protect national competition concerns.

Even though not all African countries have national competition laws, their territories may be caught by the competition regimes of the RECs. The RECs adopt differing approaches to competition law, which can be categorised into three distinct models. Firstly, the majority of RECs harmonise competition laws and establish a supranational competition agency to enforce cross-border cartels through either a centralised<fnref n="52" /> or a decentralised<fnref n="53" /> regulatory system. Secondly, regional bodies pursue soft harmonisation in which the members agree to implement national competition laws and co-operate in investigations.<fnref n="54" /> Lastly, ECCAS is a REC that promotes regional cooperation, but does not lay down a framework for harmonising or enforcing competition laws.<fnref n="55" /> As national competition polices also impact foreign investors<fnref n="56" />, regional investment instruments are increasingly including competition provisions, which may provide for additional methods of dispute resolution and shape the language of the *Protocol on Competition*.<fnref n="57" />

The type of anti-competitive practices targeted by NCAs furthermore differs. For example, COMESA and CEMAC are the only RECs to have a mandatory merger regime, WAEMU implements a voluntary one, while the other RECs do not account for merger control.<fnref n="58" /> These divergent approaches adopted by RECs is further complicated by the fact that Member States within the AU (African Union) are subject to multiple overlapping jurisdictions of RECs. For example, Eswatini is subject to the supranational NCA established under COMESA and the cooperative competition frameworks embedded in SACU and SADC.<fnref n="59" /> Only six African countries are not currently part of a REC.<fnref n="60" /> While the RECs form the foundations for an African-wide competition framework, their divergent enforcement approaches may be difficult to reconcile. Competition policy in Africa is thus characterised by the overlapping jurisdictions of RECs coupled with various national competition cultures across the continent.

The reasons for the resulting jurisdictional conflicts are twofold. Firstly, conflicts may arise between the competition laws of RECs and national competition laws. Secondly, when RECs operate under differing competition enforcement models, the enforcement action of one REC can have undesired legal ramifications across other jurisdictions. For example, if a merger is prohibited by one REC, but permitted in another, the enterprises are unlikely to complete the merger. The issue is further compounded by the fact that RECS prioritise regional interests “with less attention and focus paid to an equally important aspect of African unification”.<fnref n="61" /> The jurisdictional conflicts of RECs create difficulties for businesses and investors to operate transnationally. Such conflicts particularly arise when the allocation of enforcement competencies between regional bodies and national authorities are unclear.<fnref n="62" /> For example, Member States party to the WAEMU are also members of a larger community, the ECOWAS, but both RECs have established differing competition regimes: the former implements a centralised enforcement model, while the latter has a decentralised one. *AfCFTA*’s *Protocol on Competition* would seek to resolve such tensions, build upon the investments made by RECs to establish regional competition policies, and provide a transparent allocation of competencies.

In light of the potential for jurisdictional conflicts, a particular challenge will be to leverage continental competition policy to promote continental integration. A closely integrated competition regime furthermore enhances the African voice in global competition enforcement and philosophies. The regulatory landscape concerning competition policy is therefore particularly complex for State Parties to the *AfCFTA*. In light of the unique features of regional economic integration efforts, key policy objectives for the *AfCFTA* *Protocol on Competition*can be summarised under seven pillars: (i) aligning asymmetric competition law developments; (ii) accommodating diverse market conditions; (iii) addressing capacity restraints; (iv) promoting inclusive development; (v) reducing nationalistic interests; (vi) minimising jurisdictional conflicts of the RECs; and (vii) promoting continental integration. These policy objectives are also reflected in Article 2 of the *Protocol on Competition*.

<footnote n="23">Kigwiru, *supra* note 16 at 102.</footnote>

<footnote n="24">These are Algeria, Angola, Botswana, Burkina Faso, Cameroon, Cote d’Ivoire, Egypt, Ethiopia, Eswatini, Gambia, Kenya, Liberia, Madagascar, Malawi, Mauritius, Morocco, Namibia, Nigeria, Senegal, Seychelles, South Africa, Tanzania, Tunisia, Zambia, and Zimbabwe. See Fiona Okadia et al., “Designing an AfCFTA-Driven Continent-Wide Competition Policy Around the Regional Economic Communities” (2021) 66:4 Antitrust Bulletin 556 at 575.</footnote>

<footnote n="25">Benin, Burundi, Comoros, Cape Verde, Democratic Republic of Congo, Djibouti, Gabon, Mali, Mozambique, Niger, Rwanda, Sudan, and Togo; *ibid*.</footnote>

<footnote n="26">Central African Republic, Chad, Congo Brazzaville, Equatorial Guinea, Eritrea, Ghana, Guinea, Guinea Bissau, Lesotho, Libya, Mauritania, Sahrawi Republic, Sao Tome and Principe, Sierra Leone, Somalia, South Sudan, and Uganda; *ibid*.</footnote>

<footnote n="27">UN, *World Economic Situation and Prospects: Statistical* *Annex* (New York: UN, 2020), online: <un.org> [perma.cc/5F6T-HMBT].</footnote>

<footnote n="28">*List of Least Developed Countries (as of 11 February 2021)*, UN Committee for Development Policy (2021), online: <unctad.org> [perma.cc/PGW9-DBVY].</footnote>

<footnote n="29">Landry Signé & Colette van der Ven, *Keys to Success for the AfCFTA Negotiations*, Policy Brief (Washington, DC: Brookings: Africa Growth Initiative, 2020) at 8, online: <brookings.edu> [perma.cc/YAF9-C2PQ].</footnote>

<footnote n="30">E.g. the NCA in Kenya is developing specific guidelines to address buyer concentration. See e.g. *Assessing Regional Integration in Africa — ARIA IX: Next Steps for the African Continental Free Trade Agreement*, United Nations Economic Commission for Africa (UNECA) (2019), online: <repository.uneca.org> [perma.cc/4WLV-DCLB], 168 [*Assessing Regional Integration in Africa*].</footnote>

<footnote n="31">*Ibid* at 163 and 164.</footnote>

<footnote n="32">*Ibid* at 47.</footnote>

<footnote n="33">*Ibid* at 168.</footnote>

<footnote n="34">Kigwiru, *supra* note 16 at 109.</footnote>

<footnote n="35">Kamala Dawar & Peter Holmes, “Competition Policy” in Jean-Pierre Chauffour & Jean-Christophe Maur, eds, *Preferential Trade Agreement Policies for Development: A Handbook* (Washington, DC: World Bank, 2011), 347 at 353.</footnote>

<footnote n="36">*Ibid* at 352.</footnote>

<footnote n="37">*Ibid* at 353.</footnote>

<footnote n="38">E.g. the failure of the Doha Rounds was attributed to the fact that the provision of technical assistance by developed countries was non-legally binding. See e.g., Anestis S Papadopoulos, “The Role of Competition Law and Policy of the EU in Multilateral Negotiations on Competition” in *The International Dimension of EU Competition Law and Policy* (Cambridge: Cambridge University Press, 2010) 205 at 237 [Papadopoulos].</footnote>

<footnote n="39">Signé & van der Ven, *supra* note 29 at 8.</footnote>

<footnote n="40">Fox, *supra* note 14 at 280.</footnote>

<footnote n="41">Simon Roberts, “Competition Law Prescriptions and Competitive Outcomes” in Damien Gerard & Ioannis Lianos, eds, *Reconciling Efficiency and Equity: A Global Challenge for Competition Policy* (Cambridge: Cambridge University Press, 2019) 173 at 174.</footnote>

<footnote n="42">Vellah K Kigwiru & Tim Büthe, “The Spread of Competition Law and Policy in Africa: A Research Agenda” (2020) 1 African J Intl Econ L 41 at 47.</footnote>

<footnote n="43">Dawar & Holmes, *supra* note 35 at 351.</footnote>

<footnote n="44">Eleanor M Fox & Mor Bakhoum, “Perspectives from Four Stages of Development: What is Needed by the Nations, What is Needed for the World” in *Making Markets Work for Africa: Markets, Development, and Competition Law in Sub-Saharan Africa* (Oxford: Oxford University Press, 2019), 169 at 176—77.</footnote>

<footnote n="45">Fox contrasts the normative foundations of the Washington and the Spencer Model. The latter is recommended for developing countries; *ibid* at 277—78.</footnote>

<footnote n="46">For a discussion on the complex interaction between promoting economic efficiency and equality in competition law, see Ioannis Lianos, “The Poverty of Competition Law: The Short Story” in Damien Gerard, ed, *Reconciling Efficiency and Equity: A Global Challenge for Competition Policy* (Cambridge: Cambridge University Press, 2019) at 86.</footnote>

<footnote n="47">*Reversals of Fortune: Poverty and Shared Prosperity 2020* (Washington, DC: World Bank Group, 2020) at 28, online: <openknowledge.worldbank.org> [perma.cc/65YF-W5Q5].</footnote>

<footnote n="48">Dawar & Lipimile, *supra* note 11 at 243.</footnote>

<footnote n="49">Kigwiru & Büthe, *supra* note 42 at 13.</footnote>

<footnote n="50">Anestis S Papadopoulos, “The National and International Dimensions of Competition Law and Policy” in *The International Dimension of EU Competition Law and Policy* (Cambridge: Cambridge University Press, 2010) 7 at 33.</footnote>

<footnote n="51">*Regional Competition Agreements: Benefits and Challenges*, DAF/COMP/GF (OECD, 2018) at 5, online: <one.oecd.org> [perma.cc/8PPG-77WJ] [*Regional Competition Agreements: Benefits and Challenges*].</footnote>

<footnote n="52">The WAEMU is distinct in adopting a centralised enforcement model. See Dawar & Lipimile, *supra* note 11 at 247.</footnote>

<footnote n="53">COMESA, ECOWAS, CEMAC, and EAC. See G Deniz Both, “Models of Regional Cooperation in Competition Law and Policy from Around the World: Lessons for the ASEAN Region” in Burten Ong, ed, *The Regionalisation of Competition Law and Policy within the ASEAN Economic Community*(Cambridge: Cambridge University Press, 2018) at 178—80.</footnote>

<footnote n="54">Kigwiru & Büthe, *supra* note 42 at 54—6.</footnote>

<footnote n="55">*Assessing Regional Integration in Africa*, *supra* note 30 at 151.</footnote>

<footnote n="56">See Dai Tamada, “Discriminatory Application of Competition Law and International Investment Agreements” (2015) RIETI, Discussion Paper Series 15-E-125, online: <rieti.go.jp> [perma.cc/Z8NR-WRG8].</footnote>

<footnote n="57">See e.g. *ECOWAS Common Investment Code*, July 2018 (Chapter 14), online: <ecotis.projects.ecowas.int> [perma.cc/NX2C-6BGS].</footnote>

<footnote n="58">Dawar & Lipimile, *supra* note 11 at 247.</footnote>

<footnote n="59">*Ibid* at 244.</footnote>

<footnote n="60">Algeria, Mauritania, Morocco, Réunion, Somalia, and the Western Sahara; *ibid* at 244—45.</footnote>

<footnote n="61">Moorosi Leshoele, “AfCFTA and Regional Integration in Africa: Is African Union Government a Dream Deferred or Denied?” (2023) 41:4 J Contemporary Af Stud 393 at 403.</footnote>

<footnote n="62">Kigwiru & Büthe, *supra* note 42 at 64.</footnote>
# III. The*AfCFTA Protocol on Competition* as a
        Steppingstone to Integration on the Continent

At first glance, with the establishment of an SCA and mandatory enforcement of domestic competition law, the *Protocol on Competition* seemingly falls under the unified enforcement model. However, delving deeper into the provisions, the *Protocol* has also borrowed features of the voluntary and mandatory cooperation models. This section examines the characteristics of the *Protocol on Competition* through the lens of the above-listed policy objectives.

Under Article 3(1)(b), the *Protocol on Competition* applies to “conduct with continental dimension and having significant effect on competition in the market”. The *Protocol* is therefore grounded in the effects-doctrine as is central to most modern competition regimes, such as that of the EU. Textual differences nonetheless reveal that the *Protocol*’s scope is narrower than that of the EU. Article 101(1) of the *Treaty on the Functioning of the European Union* applies to anticompetitive conduct “which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market”. The EU competition regime’s jurisdictional scope covers anti-competitive conduct that has the intention of, or results in, *actual or potential effects on trade*. It covers practices that are capable of directly or indirectly, actually or potentially, influencing trade between EU Member States. In contrast, the *AfCFTA* *Protocol on Competition* applies to conduct *with significant effects on competition*. The jurisdictional hook is narrower, applying only to actual conduct that has significant effects on competition. The planned intervention of the continental-wide framework would therefore only apply in serious cases. This approach reflects the principle of subsidiarity. It avoids overburdening the SCA and allows the strategic allocation of pooled resources, while also respecting the jurisdictional reach of NCAs and RECs. However, with a focus on effects to competition rather than trade, it may not necessarily capture certain anti-competitive conduct that may pose threats to deeper trade integration unless significant effects to competition can be shown.

The scope is also limited to “conduct with continental dimension”, which is further defined in Article 1(h) as conduct having “significant effect on competition in a market of at least two State Parties that do not share the same jurisdiction of the existing regional economic communities”. The *Protocol* does not apply to anti-competitive conduct within the national jurisdiction of the NCAs, which is confirmed in Article 3(2). Requiring the effect on competition to occur in State Parties that are not part of the same REC further excludes cases that fall within the jurisdiction of the REC. The *Protocol* therefore allocates jurisdiction to act on anti-competitive conduct to the various agencies involved. The *Protocol*’s SCA addresses conduct that affects the markets of State Parties of differing RECs, the RECs address conduct that affects the markets of its members, and NCAs address conduct that affects their domestic markets.

In addition, the *Protocol* does not provide for the harmonization of substantive competition principles. While it mandates the enactment of competition laws and establishment of NCAs upon the *Protocol*’s entry into force, the design of the legislation and features of the NCAs are left to State Parties to govern. The *Protocol* merely stipulates that “State Parties shall endeavor to harmonize their competition laws to ensure consistency with this Protocol”.<fnref n="110" /> The application of competition law is therefore also divided between actors. *AfCFTA*’s SCA applies the *Protocol on Competition*, the RECs apply the competition legislation contained in the agreements establishing these communities, while NCAs apply domestic competition law frameworks. In the case of jurisdictional conflicts, guidance can be found in Article 19 of the Agreement establishing the *AfCFTA*; “in the event of any conflict and inconsistency between this Agreement and any regional agreement, this Agreement shall prevail” and which is reiterated in Article 3(3) of the *Protocol*. In addition, Article 20(1) further states that RECs “shall maintain their jurisdiction as building blocks for an integrated competition regime in Africa”.

The *Protocol on Competition* is therefore intended to fill a gap, covering those restrictive business practices that may not be captured by domestic frameworks nor RECs. With no mandatory harmonization of the substantive obligations, the *Protocol on Competition* does not create a unified enforcement model for anti-competitive business practices across the continent. It also does not yet fully align asymmetric competition laws. Rather, the effect is to create an additional layer of enforcement, alongside existing mechanisms at national and regional levels. This approach strategically differs from the institutional framework of the EU, which established uniform substantive competition legislation and a decentralized enforcement model. It offers a flexible approach to the harmonization of competition law and enforcement, reflecting the principle of variable geometry inherent to African-wide RTA*s*, which establishes regimes for cooperation and steps for deeper commitments rather than “rules requiring scrupulous and rigorous adherence”.<fnref n="111" />

Importantly, the scope of the *Protocol on Competition*, operating on the subsidiarity principle, together with the requirement to enact domestic competition law and enforcement agencies, incentivizes those State Parties that have not developed their own competition regimes to do so. This bottom-up approach pushes State Parties to strengthen their institutional capacities and expertise in competition law enforcement, allowing them to focus on conduct most detrimental to their own markets, accounting for the diverse market conditions across the continent. As Kigwiru notes, State Parties to the WAEMU have already learnt the lesson of stifled competition law and policy development among its Member States as a result of the primacy and exclusive authority of a newly established SCA.<fnref n="112" /> In 2002, through a judicial opinion by the WAEMU Court of Justice, Member States were required to modify their domestic legislation to give precedence to WAEMU competition laws. As a result, the Senegalese NCA, which had started to strengthen its enforcement capacity, scaled back enforcement activities so as to prevent overlap with the REC competition mandate.<fnref n="113" /> The *Protocol on Competition* therefore adopts an inclusive approach towards developing competitive markets and competition cultures across the continent.

The multilayered approach to competition law enforcement still leaves a couple of questions open. The non-uniformity of substantive competition law across the continent combined with the mandate for State Parties to “endeavor” to harmonize them does fully not resolve the “spaghetti bowl” of national, regional, and continental competition laws and enforcement mechanisms. With the potential for conflicts between national and regional competition laws and their enforcement, there is a need for coordination and cooperation amongst actors—with the SCA intervening in cases with a continental dimension and significant effects on competition when necessary. As indicated above, the guidance provided by the *Protocol on Competition* concerns the relationship between the *Protocol* and RECs and NCAs respectively. In cases of conflict between the *AfCFTA* *Competition Protocol* and the RECs where precedence is given to the *Protocol*. Furthermore, according to Article 3(2), the *Protocol*’s scope does not cover “matters falling within the respective jurisdiction of the national competition authorities”, recognising State Parties’ right to regulate competition practices within their territories.<fnref n="114" />

The need for cooperation may become prevalent when it comes to merger control. Unlike the EU competition regime, the *Protocol on Competition*does not establish a one-stop-shop in which mergers that meet certain EU-wide thresholds fall under the exclusive review of the EU SCA, the Commission.<fnref n="115" /> As discussed under the voluntary cooperation model, this may result in conflicting merger decisions. In addition, it can inefficiently result in the duplication of resources, in which a merger potentially affecting various jurisdictions, is investigated by different enforcement actors.<fnref n="116" /> The jurisdictional scope of *AfCFTA*’s SCA, which only intervenes in “mergers and acquisitions with a continental dimension” may also result in important mergers falling out of the scope of the SCA’s enforcement action. This was the case with the Holcim and Lafarge merger, creating the largest cement producer on the continent, and which had been cleared by the COMESA without any conditions.<fnref n="117" /> These two companies operated in Mauritius and Madagascar, and the COMESA SCA only identified potential anti-competitive effects in Mauritius. In the “absence of overlap”, as Fox explains, the merger did not pose competition concerns within the COMESA, despite the potential for cross-border market division cartels in the cement industry<fnref n="118" /> It then referred these concerns to Mauritius. Similarly, the “continental dimension” requirement of *AfCFTA* SCA’s jurisdiction may leave enforcement gaps, particularly where NCAs do not have the capacities to address these competition concerns. Of particular importance is the cement industry’s interest in government intervention through anti-dumping duties when faced with lower-priced imports,<fnref n="119" /> which underscores the need for a coherent competition law framework. A well-integrated competition policy is essential to ensure that enforcement gaps do not arise from jurisdictional conflicts, enabling oversight of cross-border cases that might otherwise fall through the cracks.

Further clarification regarding the potential for overlap and jurisdictional conflicts is sought in further *AfCFTA* negotiations. Article 20(2) stipulates that the Council of Ministers, comprising Ministers of State Parties responsible for trade, “shall develop future regulations and procedures to address the concurrent jurisdiction”.<fnref n="120" /> These regulations and procedures should include comprehensive and mandatory positive and negative comity provisions to resolve jurisdictional conflicts and capture a range of threats to competition. Positive comity provisions, allowing the SCA to intervene at the request of an NCA, could allow the *AfCFTA* SCA to provide support where greater capacity is needed and speak in one voice where a multitude of enforcement actors are involved. The *Protocol on Competition* includes few obligations on State Parties<fnref n="121" /> and these could be expanded to include mandatory provisions on cooperation and coordination. Reflecting the mandatory enforcement model, which is highly compatible with the *Protocol*’s goal of resolving jurisdictional conflicts, these responsibilities should include mandatory consultations, which could reflect the language of Article 21(6) of the *USMCA* (see Section II.3 above), formalised coordination, and the mandatory exchange of information. This could also provide greater alignment in competition laws and could require State Parties to account for one another’s interests when exercising jurisdiction. State responsibilities are subject to the *AfCFTA*’s dispute settlement mechanism, which reflects that of the WTO and would strengthen cooperative efforts among enforcement actors with the potential to limit the role of nationalist interests in competition law enforcement.<fnref n="122" />

Furthermore, the *Protocol on Competition* grants the established SCA a strong mandate to cooperate with State Parties and RECs.<fnref n="123" /> To realise the goal of a continent-wide competition policy, the SCA “shall provide technical assistance, upon request, to State Parties or Member States wishing to enact competition legislation and establish competition enforcement bodies” to meet the obligation contained in Article 12(3).<fnref n="124" /> Dressed in mandatory language, the technical assistance provisions become important, particularly in light of the capacity restraints faced by NCAs and those State Parties in the process of establishing one.<fnref n="125" /> This should include the exchange of information and best practices to maximize the use of continent-wide resources. Providing support in terms of capacity-building and technical assistance further has the potential to attract outside funding and leaves room for the SCA to have a marked influence on the development of competition cultures across the continent, providing a soft harmonization approach to competition law alignment.<fnref n="126" /> This is reinforced by Articles 22(4) and 18 which allow the SCA to recommend procedures or policies that would strengthen cooperation between State Parties and establishes a Committee on Competition Policy, comprising representatives of State Parties, to further the *Protocol*’s objectives, respectively. Coordination of competition policies, priorities, and the sharing of resources, information, and best practices — not only by the SCA but also by NCAs and RECs — is vital to ensure an efficient use of capacities and a more robust and unified competition culture.

<footnote n="110">*Protocol on Competition*, *supra* note 64, art 12(5).</footnote>

<footnote n="111">James Thuo Gathii, “African Regional Trade Agreements as Flexible Legal Regimes” in *African Regional Trade Agreements as Legal Regimes* (Cambridge: Cambridge University Press, 2011) 1 at 2.</footnote>

<footnote n="112">Vellah Kedogo Kigwiru, “Supranational or cooperative? Rethinking the African Continental Free Trade Area Agreement Competition Protocol institutional design” (2024) 12 J Antitrust Enforcement 98 at 111.</footnote>

<footnote n="113">*Ibid*.</footnote>

<footnote n="114">*Protocol on Competition*, *supra* note 64, art 12(6).</footnote>

<footnote n="115">EU, *Council Regulation (EC) 139/2004 of 20 January 2004 on the Control of Concentrations between Undertakings* [2004] OJ, L 24/1 at 21(2).</footnote>

<footnote n="116">Eleanor M Fox, “Integrating Africa by Competition and Market Policy” (2022) 60 Rev Industrial Organization 305 at 316.</footnote>

<footnote n="117">*Ibid* at 315.</footnote>

<footnote n="118">Eleanor M. Fox, “Integrating Africa by Competition and Market Policy” (2022) 60 Rev Industrial Organization 305 at 315.</footnote>

<footnote n="119">*Ibid* at 315.</footnote>

<footnote n="120">*Protocol on Competition*, *supra* note 64, art 1(i).</footnote>

<footnote n="121">Only Article 12 deals with responsibilities of State Parties and include the enactment of national laws and enforcement authorities and the notification of the laws and regulations to the *AfCFTA* Secretariat.</footnote>

<footnote n="122">*Protocol on Competition*, *supra* note 64, art 23.</footnote>

<footnote n="123">*Ibid,* art 15(1), 22.</footnote>

<footnote n="124">*Ibid,* art 22(2).</footnote>

<footnote n="125">Franziska Sucker, “Navigating Economic Inequalities Alongside African Digital Market Integration: The Role of the AfCFTA Competition Protocol” (2025) 52 Leg Issues Eco Integration 5 at 38.</footnote>

<footnote n="126">*Ibid* at 37.</footnote>
# —

This article examined the institutional design features and enforcement mechanisms of *AfCFTA*’s *Protocol on Competition* through the lens of *AfCFTA*’s unique policy objectives. It offers a tailored approach to assessing compliance mechanisms for the *AfCFTA* *Protocol on Competition*. The bottom-up analysis of the RTA’s underlying rationales is an important step in fulfilling the vision of pan-African trade.

Through an analysis of the regulatory landscape for competition policy on the continent, seven key objectives were identified: (i) aligning asymmetric competition law developments; (ii) accommodating diverse market conditions; (iii) addressing capacity restraints; (iv) promoting inclusive development; (v) reducing nationalistic interests; (vi) minimising jurisdictional conflicts of the RECs; and (vii) promoting continental integration. It further examined four different competition enforcement models adopted in other mega-RTA*s* globally: the soft harmonisation model, voluntary cooperation model, mandatory cooperation model, and unified enforcement model, drawing out lessons for meeting the desired policy objectives. While softer compliance mechanisms tend to accommodate varying market conditions and require fewer resources, the more formalised approaches provide for deeper levels of integration by aligning national competition laws and resolving potential jurisdictional conflicts.

No one size fits all approach applies to *AfCFTA*: the *Protocol on Competition* has borrowed features from all four models. Rather than adopting a unified enforcement model, the *Protocol* takes a multilayered approach to enforcement: NCAs, RECs, and the SCA address anti-competitive practices that fall within their jurisdiction. While the adoption of competition laws and establishment of enforcement agencies is mandatory, State Parties “shall endeavor” to harmonize substantive competition laws across the continent. This multilayered approach is particularly robust in encouraging the enactment and enforcement of domestic competition regimes, while providing support through technical assistance and capacity building. This allows State Parties to develop a competition regime that is aligned with their particular market conditions, promotes inclusive development, while addressing capacity restraints. In establishing mandatory cooperation provisions for the SCA and facilitating a continent-wide competition culture through a Committee on Competition Policy, the approach also works towards aligning asymmetric competition laws and promoting continental integration. There is room, however, for the *Protocol on Competition* to further develop regulation that addresses jurisdictional conflicts between NCAs, RECs, and the SCA while minimising the role of political and nationalistic interests in enforcement. Key focus areas for implementation should include the establishment of mandatory negative and positive comity provisions to address jurisdictional conflicts, procedures for the coordination and alignment of competition priorities throughout the continent, and the soft harmonization of substantive competition legislation through the sharing of best practices and pooling of resources. There is potential to strengthen cooperation provisions,<fnref n="127" /> not only among competition agencies, but also with sector regulators and anti-dumping authorities, with a view to greater convergence between trade, anti-dumping, and competition policies, providing a strong foundation for continental integration.

<footnote n="127">For cooperation with non-competition agencies, the *Protocol* mandates that the SCA cooperates with “sector regulators with or without concurrent competition Jurisdiction”. See, *supra* note 64, art 15(g)(iii).</footnote>