Reflecting on Nigeria’s Trade Law and Policy Review: two key questions
Adebambo Adewopo, SAN
Bio: Professor Adebambo Adewopo, SAN is a Research Professor at the Nigerian Institute of Advanced Legal Studies and a leading intellectual property scholar. He holds the distinguished Ademola Edu Intellectual Property Chair at the Institute.
The recent virtual Roundtable on the Review of Nigeria’s Trade Law and Policy organized by the NIALS’ Commercial Law Department was timely and apt, especially in the context of the emergent trading system of the post- African Continental Free Trade Agreement (AfCFTA ) era. The Roundtable, which drew constructive comments from speakers and discussants, contributes to the vibrant national discourse that could hardly be exhausted in a single-session roundtable. Trade law, though a specialised discipline, traverses an expansive field of international trade with tentacles straddling the traditional divides of public and private international law. Among the wide-ranging issues being discussed, this piece identifies two issues of particular interest, which I consider pertinent to the emerging realities of Nigeria’s trade law and policy review. The first is the imperatives of national economic interest or better still development goals coupled with the complex questions of balancing same with global norms or in this case the continental objectives and principles of trade agreements. While the political economy has always been a standard feature in the global trade regime complex, maintaining a strategic balance is a vital part of the negotiation and implementation of multilateral instruments by member states. The second issue, of course, is that of navigating trade law and policy from the lens of intellectual property rights (IPRs) protection as one of the building blocks of international trade, particularly in the context of the economic role of IPR protection and for those interested in IP law and policy in Nigeria. For good reason, trade law and policy review provide an added impetus for IP reform given the emerging competitive trade environment that AfCFTA has ushered in on the Continent. Both issues are discussed considering Nigeria’s current commitment to trade law and policy review.
As a backdrop, it is necessary to highlight the significance of trade. As it directly affects the flow of goods and services between and among countries and has wider economic and development implications, trade is an all-important matter of all time. As an ‘engine of growth that creates jobs, reduces poverty and increases economic opportunity’ (World Bank), trade provides an export-import market for over 1. 2 billion African population with a combined GDP of more than U$3.4 trillion that depends on a free, fair, predictable, and rules-based international trading system. As the cornerstone of economic growth, trade regulation through trade law and policy constructs a complex architecture of global normative order at the intersection of national development and international relations. The landscape of trade arrangements, encompassing multilateral, plurilateral and bilateral instruments, is wide-ranging, from both general and specific to the objectives and principles to issues relating to tariffs measures inclusive of import and export, taxes, voluntary export restraints, customs, liberalisation of trade, economic sectors, dispute settlement, among others. It extends to policies relating to investment, fiscal and monetary measures, competition, intellectual property and now e-commerce in the light of the digital economy.
Part of the importance of trade in international relations lies in its connection with the country’s global economic standing. Every country, therefore, takes its trade law and policy seriously by harnessing and defining its overall negotiating objectives, capacities, and institutional framework. For example, the United States Trade Representative (USTR), comprising over 25 key Policy Offices and Advisory Committees including Office of Innovation and Intellectual Property and Offices in Washington, Geneva, and Brussels, is reputable with long-standing responsibility, among others, for marshalling negotiating objectives and US trade interest in the implementation of US trade policy. In conjunction with domestic and foreign offices, it is well known for its special 301 Reports on the intellectual property situation worldwide. Nigeria has Trade Offices, including the Trade Office to WTO in Geneva separate from the Permanent Mission in Geneva and the Embassy in Bern. The Nigerian Office of Trade Negotiation (NOTN), a focal agency in the Federal Ministry of Trade and Investment (FMTI) provides an institutional framework that facilitates negotiating objectives that adequately reflect Nigeria’s public and private sector interest and updating Nigeria’s trade policy in order to optimise Nigeria’s competitive gains in the rapidly changing global landscape. This goes to show the primacy of trade and somewhat elaborate institutional frameworks for the advancement of the country’s trading interest under existing trading regimes and environment.
Nigeria recently has redefined its foreign policy in an economic context – a shift, not necessarily a departure from its long-standing Afrocentric vision that has declared Africa as the centrepiece of its foreign policy. This is a good take-off point in the light of emergent Africa integration realities. While continuing to diversify export base and liberalise import base, the overall objective of Nigeria’s trade policy and recent review trajectory to enhance the country’s access to the regional market in preparation for effective implementation of AfCFTA sits strategically on a better prospect of achieving economic, technological, and institutional capacities and national interest. Today, AfCFTA, without forgetting ECOWAS sub-regional counterpart, is central to Nigeria’s trade policy at the regional level and that context will continue to shape the discussion on the dynamics of Nigeria’s trading interest in terms of the critical issue of balancing domestic economic objectives and regional obligations. In the pursuit of the vision of Africa integration and African Union (AU) Agenda 2063, AfCFTA has emerged to create the world’s largest single and liberalised market for the fifty-five AU members and laid the ‘foundation for the establishment of a Continental Customs Union’ (Article 3). Affirming the traditional principles of National Treatment, Most-Favoured-Nation (MFN), variable geometry, reciprocity, including the preservation of the acquis, among others (Article 5), the Agreement Establishing the AfCFTA, institutes the governing rules on critical issues of liberalisation of trade (Part III), comprising provisions relating to import duties (article 7), schedules of tariff concessions and modification (articles 8 and 11 respectively), elimination of quantitative restrictions (article 9), export duties (article 10), elimination of non-tariff barriers (article 12), rules of origin (article 13) among other Parts or provisions of the Agreement. It includes three incumbent Protocols: Protocol on Trade in Goods, Protocol on Trade in Services and Protocol on Rules and Procedures on the Settlement of Disputes, as part of the first phase of the multi-phase process of negotiations. With four Protocols (namely on Investment, IPRs, Competition and E-Commerce) with effect from January 2020, in the process of the second phase of negotiations and other issues to address, the agreement is still at its infancy stage.
Clearly, AfCFTA’s overarching objective of African integration through a ‘single’ ‘liberalised’ market for its members and Nigeria’s trade policy of enhancing the country’s access to the regional market is an important question that the issue of balancing objectives should address. The argument of whether they are mutually exclusive is a question of strategy in trading law and policymaking. The alignment of objectives with supporting provisions is crucial to the discussion of the issue of balancing domestic objectives and treaty obligations. This issue is often discussed in the context of compatibility and implementation of existing domestic frameworks with treaty obligations. The imperative of achieving equilibrium is at the core of a large body of policy and academic discussions with particular reference to WTO/TRIPs and can be replicated in the context of the compatibility of Nigeria trade law and policy review with existing global instruments and specifically with AfCFTA, which is the new African code that would govern continental trade environment for a long time to come. This issue is important in the current national trade law and policy review and continental negotiating process.
It raises the question often addressed by every progressive and leading nation, bordering on how to push national economic interest, trading objectives or comparative advantage as it were in the diversity of interests on the global and regional negotiating table, a question which has particularly made international IP law and policy and TRIPs, in particular, a complex and controversial regime. This could have a spiral effect on regional IP agreements and could be manifested within the context of the fairly contiguous or common objectives among developing and LDCs of AfCFTA. However, realising that though common as it were even among the same group of countries, national economic or trading interests are not always coterminous and no matter how marginally different the stages of development and needs are, economic and trading policy objectives are not always uniform. Therefore, it is difficult to achieve the goals of harmonisation in international treaty-making. This is one imperative Nigeria must take into consideration in setting negotiating objectives and implementing its trade policy and law. For example, with regards to IPRs, a strategy of strengthening the IPR protection as part of the balancing mechanism without offending the objectives of enhancing regional market access for its cultural industries and knowledge products, for instance, in music, Nollywood, TK, GI and the innovative ICT sector requiring robust protection that a liberalised IPR regime that AfCFTA IPR Protocol, for example, could offer. This leads to the issue of IPR in trade and in the context of Nigeria’s trade law and policy.
Having established the critical role that trade plays in economic growth and development, it stands to reason that the connection of IPRs to trade is inextricably tied to that role. Among the WTO Agreements, the TRIPs agreement is perhaps one of the most topical and debated Agreements for none other reason than the inherent value of IPRs in global trade. In effectively linking IPRs to trade, in the last twenty-seven years, TRIPs has established the global regime for the regulation of trade in IPRs and embodies, ab initio, an instrument of geo-political contestation along the North – South divide. With the IPR-trade linkage and the new regime governing trade in knowledge or IPR-carrying products in form of trademarked goods and services, patented technologies, designs and copyrighted creative products in the global channel of trade, TRIPs has produced a ‘global acquis’ of considerable force on the landscape of trade law and policy of WTO member states. For most of Africa and other developing or less developed countries, a huge body of literature has provided valuable insights into the TRIPs experience and the dominant narrative has been less than complementary; from the negotiation, interpretation, enforcement, or overall impact on facilitating the global visions of access to knowledge in many essential respects. One of the most troubled sites has been the role of IPRs in the public health conditions of many African and less-developed members of the WTO with the recent invocation of IPRs waiver for the prevention, containment, and treatment of COVID-19. For what the Doha Declaration could not achieve, this new ‘waiver dispensation’ at least potentially provides another test or exceptional circumstance in the global channel of trade to allow for more robust access to life-saving vaccines during the pandemic. At the continental level, AfCFTA’s Protocol on IPRs is expected to govern trade in IPRs for AU members and a natural site for rethinking the ideological foundation of IP system vis-à-vis African values. Within the regional context of trade or unfair trade practices, AfCFTA offers a significant international protection against piracy and counterfeiting and complements the protection offered under existing domestic laws and multilateral IP conventions.
Nigeria’s IP framework protects copyright and related rights, trademark, patent and designs for creatives, innovators, and entrepreneurs in three pieces of legislation that have been generally adjudged as inadequate in the rapidly developing commercial and technological environment. This has generated considerable momentum for reform in many areas particularly the expansion of IP rights to exceed exceeding levels. Currently, Copyright bill 2021 has crystallised many decades of reform initiatives and is at an advanced stage of enactment by the National assembly. This certainly presents a remarkable promise for the creative industry and is crucial for trade law and policy review, particularly considering the emergence and contribution of Nigeria’s cultural industries and digital economy with a significant IP base. Empirical export and contribution-to-GDP data support the placement of the creative industry, like agriculture, financial services and ICT counterparts, among sectors of comparative advantage eligible for priority in the trade policy review. As indicated, this includes notably issues of protection of TK and cultural expressions already protected in the existing ARIPO and OAPI Agreements, GIs and emerging issues of value to Africa such as alternative innovation models and balancing mechanisms that would advance access to knowledge, medicines and other imperatives.
Nigeria, therefore, requires a serious work of international relations and trade negotiations involving trade experts, legal experts, seasoned diplomats and development experts,’ key industry practitioners and academia to negotiate multilateral and bilateral agreements. In the roundtable, there was a consensus of opinion on existing gaps in the negotiating capacity and performance. With the establishment of the NOTN as the coordinating office, that gap should be closed. Positioned as the focal agency, facilitating Nigeria’s trading objectives will benefit significantly by enhancing the Office’s pool of technical and advisory capacities drawn from public and private sectors and academia. The current second phase of the AfCFTA with the Protocols on Investment, IPRs, Competition and E-Commerce offer an acid test for both the negotiation and the review of trade policy. A complete audit of international and bilateral agreements which Nigeria has signed and/or ratified is necessary for the trade law and policy review process. On the final note, it is instructive to note that as a matter of constitutional law, the requirement of domestication offers a reprieve for the legal, policy and institutional gaps in the existing trade regime that could be addressed in the current Nigerian trade law and policy review as a groundwork to the coming ‘trade and investment wars’ in the post-AfCFTA political economy.
Sokoajin Madey Aileku