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24 Int'l L. News 1 (1995)

handle is hein.journals/inrnlwnw24 and id is 1 raw text is: NAFTA and the Resolution of Private Commercial Disputes By Ginger Lew ne measure of the success of a trade agreement is the ability to resolve disputes that arise under it. Traditionally, trade agreements have provided mechanisms for the resolution of government-to-government disputes. In addition, agreements such as bilateral in- vestment treaties have dealt with the res- olution of investor-state disputes. The North American Free Trade Agree- merit (NAFTA) took dispute settlement one step further when it became the first free trade agreement to address the res- olution of international commercial dis- putes between private parties. NAFTA Article 2022 requires each NAFTA part- ner to encourage and facilitate the use of arbitration and other means of alter- native dispute resolution (ADR) to settle international commercial disputes be- tween private parties in the NAFTA re- gion, and to provide procedures for the enforcement of agreements to arbitrate and for the recognition and enforcement of arbitral awards. A NAFTA country can satisfy the latter obligation by being a party to, and complying with, the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) or the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention). Mexico andi the United States are parties to both Con- ventions, while Canada has only signed on to the New York Convention. The NAFTA also called for the creation of a committee to advise the NAFTA Com- mission, the three trade ministers, on the resolution of private commercial disputes ABA Delegation in China and Hong Kong 30-niember Delegation from the Section and the ABA participated in a series of meetings with gov- ernment and business leaders in Beijing, Shanghai and Hong Kong in October. This Delegation included representatives from a broad cross-section of the legal profession in the United States and also included representatives from Mexico, Germany, the Philippines, Taiwan and Japan. Among the most important aspects of the Delegation's visit were its discussions with Chinese lawyers about the impor- tance of creating an independent legal profession in China. Without some sig- nificant degree of independence by lawyers in China, there will be less op- portunity for achievement by China of goals in areas such as furtherance of hiu- man rights, creation of a market econ- omy and establishment of democratic political structures. Among the groups with which the Dele- gation met were the All China Lawyers Association, the Supreme People's Court, the U.S. Embassy, the U.S. Consuls Gen- eral in Shanghai and Hong Kong, the China International Trust and Investment Corporation, the Ministry of Foreign Trade and Economic Cooperation, the China Council for the Promotion of In- ternational Trade, Hong Kong Law School, the Shanghai Bar Association, the World Bank, the International Finance Corporation and the Shanghai Stock Ex- change. The Delegation also met with U.S. lawyers and business executives in the three cities visited. Finally, the Dele- gation also visited a Chinese prison near Beijing to discuss human rights and crim- inal law issues. U in its oversight of the implementation of the NAFTA. Accordingly, the Commis- sion formally established an Advisory Committee on Private Commercial Dis- putes (Committee), comprised of persons with expertise or experience in the reso- lution of private international commer- cial disputes, in October 1994. The Committee is made up of two gov- ernnient representatives who chair the Committee and eight private sector rep- resentatives from each of the three NAFTA countries. I co-chair the Com- mittee for the United States with Conrad K. Harper, the Legal Adviser of the De- partment of State. The United States se- lected eight private sector members and eight alternates, based on recommenda- tions of several national and regional or- ganizations. The members are Jose I. Asti- garraga, Miami, FL; James H. Carter, New York, NY; Jose A. Cardenas, Phoenix, AZ; John M. Dickenson, Ill, Santa Paula, CA; Deborah Enix-Ross, New York, NY; Rona R. Mears, Dallas, TX; David W. Rivkin, New York, NY; and Susan Kohn Ross, Los Angeles, CA. The alternates are Gerald Aksen, New York, NY; Charles N. Brower, Washington, DC; Corinne Cooper, Kansas City, MO; Michael F. Hoellering, New York, NY; William K. continued on page 4 AkACOIrAk DII)AD A Ccflr' AflI

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