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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

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