Negotiations on the liberalisation of the Southern African Development Community (?SADC?) services market are progressing. Negotiations started in April 2012 and in August of the same year the negotiators agreed on an agreement, the SADC Protocol on Trade in Services. ,

The SADC Protocol on Trade in Services provides the framework for allowing service providers from any SADC member state to provide their services within the territories of other SADC member states. To be more precise, it will allow service providers from SADC member states better access to the services markets of other SADC members states than compared to the access (if at all) that service providers from non-SADC member states may have. , The SADC Protocol on Trade in Services does not fully regulate the manner in which the service providers may access the SADC market. Such regulation lies within the specific commitments made by each member state of SADC.

SADC member states have made very few commitments on services liberalisation. As such foreign service providers in currently operating within SADC markets may be open to expropriation of their investments or subject to discrimination as SADC member states may indeed resort to expropriation or discrimination if they have not made a commitment to the contrary. The specific commitments currently being negotiated amongst member states are aimed at allowing SADC service providers access to the SADC market and protect against expropriate or discrimination (or indeed define the limitations of expropriation or discrimination). This allows service providers access to the SADC market and allows service providers the opportunity to properly evaluate the potential risk involved in providing a service in another SADC member state.

The current negotiations on these specific commitments to be undertaken by SADC member states are limited to six priority sectors, being the communication, construction, energy, financial, tourism and transport sectors. It thus presents an opportunity for service providers in these sectors to become active in other SADC member states territories. From a South African perspective, South Africa has requested better access and treatment in all of the abovementioned sectors save for the energy sector. In contrast South Africa has only received requests for better access and treatment from other SADC member states in three sectors, namely the communication, transport and financial services sectors. These requests have been made by Lesotho, Swaziland and Mauritius.

Currently these requests are being evaluated by each of the SADC member states and offers are being finalised. Service providers are encouraged to keep an eye on any developments on this front and better yet, participate in the process so that their government may negotiate with the private sector's best interest in mind.

Rian Geldenhuys

© Trade Law Chambers 2013