Comesa court ruling underscores need for fair application of trade policies

Although the year is still young, the international trade scene has already been marked by notable developments, such as the United States' decision to impose, and later suspend, tariffs on its key trade partners.

Africa, too, has recently experienced some notable activity. On February 4, the Comesa Court of Justice issued a rare judgment, nullifying and restraining the government of Mauritius from imposing a safeguard measure on imported edible oils from the Comesa [Common Market for Eastern and Southern Africa] region.

Safeguard measures, alongside anti-dumping duties and countervailing measures, are key trade policy instruments designed to protect domestic industries from the negative impacts of trade liberalisation, where countries open their markets to imports from abroad.

These measures are intended to be temporary and must be implemented in a transparent, predictable, and rule-based manner to prevent abuse.

The case before the court was brought by Agiliss Limited, an importer and distributor of staple foods in Mauritius. Agiliss challenged the Mauritian government's notification to the Comesa Secretary General about its intention to impose a 10 percent customs duty on edible oil imports originating from the Comesa region, above a non-tariff annual quota of 3,000 tonnes.

After reviewing the relevant provisions of the Treaty establishing the Comesa and the Comesa Regulations on Trade Remedy Measures, the Court concluded that a safeguard measure could only be applied following an investigation by the relevant national authority, which must adhere to the Regulations, including issuing reasonable public notices to all interested parties.

The Court found that the investigation conducted by Mauritius was insufficient and did not meet the standards required to justify the safeguard measure.

Additionally, the court emphasised that safeguard measures are meant to be immediate and temporary responses to import surges, and the law limits such measures to the minimum necessary in specific circumstances.

Mauritius failed to demonstrate that the safeguard measures were absolutely necessary, and no evidence was presented to support the claim that there was a surge in imports or a decline in domestic activity that warranted protective measures.

The Comesa court's ruling underscores the need for trade policies to strike a balance between protection and fairness, ensuring that all parties adhere to the rules outlined in regional trade agreements and uphold due process.

The writer is an Advocate of the High Court of Kenya