The SADC Trade Agenda, A Tool to Facilitate Regional Commercial Law: An Analysis

• Jurisdiction: South Africa
• Pages: 695-709
• Published date: 25 May 2019
• Date: 25 May 2019
• Author: Amos Saurombe
• Citation: (2009) 21 SA Merc LJ 695

The SADC TradeAgenda, ATool to Facilitate

Regional Commercial Law: An Analysis

AMOS SAUROMBE*

University of South Africa

1 Introduction

The harmonisation of trade laws and commercial practices is an important

ingredient of regional integration, without which meaningful economic

integration cannot be achieved. Economic integration needs a legal

framework to foster and support it. It is widely acknowledged that conf‌licts

and divergences arising from the laws of different states in matters relating to

international trade constitute an obstacle to the development of that

trade.

1

The existence, in the Southern African Development Community

(SADC) of widely accepted trade laws and commercial practices would

eliminate a number of problems that currently plague intra-regional trade.

One of the problems that states face is the diversity of national laws and the

complexity of the rules of private international law for determining the system

applicable to their transaction, even if based on the choice of the parties, who

would have to contend with limitations imposed by individual states. At

present in SADC, the parties cannot always be certain which law will apply.

This may discourage them from entering into intra-regional business

transactions. If the parties in an intra-regional business transaction come from

different states and are therefore accustomed to different legal systems, the

governing law is going to be unfamiliar to one of the parties. This situation

may also discourage parties from entering into intra-regional trade.

2

The

absence of uniform commercial rules makes the outcome of litigation

unpredictable and to some extent dependent on the court and place of hearing

of the case. The problem is compounded by the fact that these laws are often

* LLB (UFH) LLM (UWC-Amsterdam Law School). Senior Lecturer, Department of Mercantile

Law, College of Law,University of South Africa.

1

The study that led to the establishment of United Nations Commission on International Trade Law

(UNCITRAL) referred to difficultiesfaced by parties engaging in international commercial transactions

as a result of the multiplicity of and divergences in national laws and recommended a new United

Nations (UN) organ to systematise and accelerate the process of harmonisation and unif‌ication of

international trade law. See ‘Progressive Development of the Law of International Trade: Report of the

Secretary General’, Official Records of the General Assembly, Twenty-f‌irst Session, Annexes, agenda

item 88, docs. A/6396, Add.1 and 2.

2

The United Nations Conference on Trade and Development (UNCTAD) observes in General

Principle Six of UNCTAD:

‘International trade is one of the most important factors in economic development. It should be

governed by such rules as are consistent with the attainment of economic and social progress and

should not be hampered by measures incompatible therewith.’

695

(2009) 21 SA Merc LJ 695

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