An Analysis and Exposition of Dispute Settlement Forum Shopping for SADC Member States in the Light of the Suspension of the SADC Tribunal

• Jurisdiction: South Africa
• Author: Amos Saurombe
• Date: 25 May 2019
• Published date: 25 May 2019
• Citation: (2011) 23 SA Merc LJ 392
• Pages: 392-406

An Analysis and Exposition of Dispute

Settlement Forum Shopping for SADC Member

States in the Light of the Suspension of the

SADC Tribunal*

AMOS SAUROMBE**

University of South Africa

1 Introduction

The Southern African Development Community (‘SADC’) Tribunal was

suspended by the Summit Heads of State and Government in August 2010. Its

reinstatement was made subject to a review of its operations. As from the

2010 suspension, the Tribunal could rule on matters already before it at the

time, but it could not accept new cases until the Summit was satisf‌ied with the

f‌indings of the review process. The review process subsequently exonerated

the Tribunal by f‌inding that it had acted within the powers it derived from the

SADC Treaty and the Protocol on the Tribunal.

However, the 2011 SADC Summit strongly differed with the f‌inding of the

review process and rendered the Tribunal inoperative by not appointing new

judges after some positions became vacant. This will surely dent the

institutional structure of an organisation that has been struggling to implement

treaty obligations. The Tribunal had clearly signaled its intention to apply the

letter of the law in treaty interpretation, application and dispute settlement as

empowered by the SADC Treaty.The suspension of the Tribunal is therefore a

blow to the region. However it is not all doom and gloom for dispute

settlement in the SADC region.

This paper seeks to expose and explore other dispute settlement forum

options available to SADC member states. The main focus will be on trade

matters. Forum shopping is possible for SADC member states since there are

overlaps between the SADC dispute settlement mechanism on trade and other

regional, continental and international dispute settlement regimes. The f‌irst

part of this paper gives a historical background of developments to date. The

paper then identif‌ies potential jurisdiction overlaps that exist between SADC

and many other organisations. Thirdly, the paper discusses these jurisdictional

overlaps. Finally, it makes recommendations on how SADC can amend

* This article is based on a paper presented at the Eighth International Workshop on Commercial

Law, hosted by the Centre for Business Law of the University of South Africa, on 3 August 2011 at

Nedbank in Sandton, South Africa.

** LLB (Fort Hare) LLM (Western Cape) LLD (North West).Senior lecturer in International Trade

Law in the Department of Mercantile Law, University of South Africa, Pretoria. e-Mail:

sauroa@unisa.ac.za.

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(2011) 23 SA Merc LJ 392

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