Legal Issues on the Validity of the MFN Clauses in the EPAs

Abstract

Following a submission by Brazil at the WTO General Council meeting in Febraury 2008, on the potentially disastrous implications of the MFN provisions in the initialled EPAs between the EU and many ACP States, the debate has increasingly continued as to the undermining effects of the provisions on South-South trade cooperation under the Enabling Clause. Some comments have indeed underscored the potential utility of these provisions in securing for ACP States, simpler rules of origin that may be conceded by the EU in a subsequent FTA with more powerful negotiating countries than the ACP States. This paper follows a different approach to the debate by examining the legality of the MFN clauses in the EPAs rather than the abundant policy-driven debates as earlier depicted. The paper will review the legality of the MFN clause as it could impact on cooperation under the enabling clause. It will also delve into what seems a ‘settled area’, when it reviews the legality of the MFN clause in classical FTAs, questioning the purport of the MFN clause to automatically confer on non-parties to an agreements rights that are negotiated for and having corresponding obligations in a parallel agreement.