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FTAA.soc/civ/29
May 15, 2002

Original: Spanish
Translation: FTAA Secretariat

FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CIVIL SOCIETY

CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION


Name (s) Roberto Illingworth Cabanellas,  President CIAC
Organization (s) Inter-American Commercial Arbitration Commission
Country Ecuador

SUBMISSION OF THE INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION-CIAC-A PROPOSAL TO SERVE AS THE ADMINISTRATIVE ENTITY FOR DISPUTE SETTLEMENT AT THE PRIVATE LEVEL WITHIN THE FTAA INSTITUTIONAL SCHEME

 

INTRODUCTION

Trade among the countries in the Americas has increased as a result of the signing of International Agreements, integration processes, and regional and subregional trade agreements. By 2005, with the advent of the Free Trade Area of the Americas, FTAA, trade is expected to increase even more, bringing us together into a market of 800 million people. The logical outcome of this increase in trade and the internationalization process is that it is becoming absolutely necessary for entrepreneurs, in their capacity as the principal economic players, to be able to meet the challenge of becoming competitive and handling the numerous conflicts that can be expected to arise. in a cost-effective way, using swift, efficient and transparent mechanisms.

IMPACT ON TRADE RELATIONS AND SUPPORT MECHANISMS FOR THE SETTLEMENT OF PRIVATE DISPUTES

Differences in culture, language, and legal systems, and the latter’s inability to respond to the needs of trade in a swift and effective manner make the implementation of neutral and standard response mechanisms an absolute necessity. The tremendous surge in the development of Alternative dispute settlement mechanisms, especially arbitration and conciliation or mediation, in the past decade therefore does not come as a surprise. A large number of centers specializing in administering alternative private commercial dispute settlement methods in the region have thus been established.

THE INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION IS AN OAS-CREATED INSTITUTION

The Inter-American Commission on Commercial Arbitration, which has its origins in Resolution XLI on Commercial Arbitration, adopted by the Seventh International Conference of American States, held in Montevideo (Uruguay) in 1933, at which it was agreed that, in order to establish closer ties among the Trade Associations of the Americas, with absolute independence from official controls, an Inter-American body needed to be created to assume, as one of its most important functions, the responsibility for setting up an Inter-American arbitration system. This led to the creation of CIAC in 1943. CIAC’s role and leadership was strengthened by the Inter-American Convention on International Commercial Arbitration, known as the 1975 Panama Convention, which was adopted in Panama in 1975. This Convention, which was preceded in 1967 by a draft by the Inter-American Juridical Committee, was approved at a meeting of the Member States of the Organization of American States, held in Panama City in January 1975. The third paragraph of the Convention recognizes the Inter-American Commercial Arbitration Commission and expressly indicates that in the absence of a specific agreement between the parties, arbitration will be conducted pursuant to the Committee’s rules of procedure. These rules were recently modified, following negotiation with the U. S. State Department, and congressional approval, which had retained this power with respect to the rules prevailing since 1988. The new rules of procedure have been in effect since 1 April 2002.

PRESENCE OF THE INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION -CIAC- IN THE AMERICAS

The Inter-American Commercial Arbitration Commission has been gaining in strength and representation, increasing its number of national chapters and associates. At present there are 16 national chapters and 6 associate entities in the following countries of the American Hemisphere: the United States, Mexico, Guatemala, Costa Rica, Panama, Colombia, Ecuador, Peru, Chile, Bolivia, Brazil, Argentina, Paraguay, Uruguay, Venezuela and the Dominican Republic. Canada and Honduras are in the process of formalizing their national chapters. Most of these entities are represented by the countries’ leading Chambers of Commerce and in the United States by the American Arbitration Association.

In developing alternative methods, the Commission has spearheaded a leading role in raising awareness about them and enhancing them by assisting in the implementation of training and legal reform programs, inter alia. The Commission keeps abreast of progress in such programs in its National Chapters throughout the Americas. Additionally, the Commission has been executing programs with the Inter-American Development Bank and Organization of American States, the result of which has been a transformation in alternative dispute settlement methods.

IMPACT OF THE PARTICIPATION OF CIAC IN THE SETTLEMENT OF PRIVATE SECTOR DISPUTES WITHIN THE FRAMEWORK OF THE FTAA

Within the context of the negotiation of the Free Trade Area of the Americas (FTAA) the San José Declaration, drafted during the Fourth Trade Ministerial Meeting, made clear the importance of having alternative dispute settlement methods. One of the objectives set out with respect to the Dispute Settlement issue is “to design ways to facilitate and promote the use of arbitration and other alternative dispute settlement mechanisms, to solve private trade controversies in the framework of the FTAA.” Thus, the importance of Alternative Methods as a means to resolve private commercial disputes was given express recognition in the framework of the FTAA.

In addition to the foregoing, at the Fifth Trade Ministerial Meeting, held in Toronto, Canada in November 1999, the Ministers instructed the Trade Negotiations Committee (TNC) to identify, consider and recommend additional business facilitation measures, while at the Sixth Ministerial Meeting in Buenos Aires, Argentina, the Technical Committee on Institutional Issues was created and the Ministers instructed the Trade Negotiations Committee to submit to the Technical Committee on Institutional Issues its preliminary views on the institutions that will need to be established to adequately implement the dispute settlement mechanisms established in the FTAA.

In view of the fact that the 1975 Inter-American Convention on International Commercial Arbitration is the foremost agreement of the Americas and that article 56 of the draft FTAA Agreement establishes […the obligation of each Party…] to provide for procedures to ensure observance of international arbitration conventions and the recognition and enforcement of arbitral awards granted in those disputes, […pointing out that…] a Party shall be deemed to be in compliance with this paragraph if it is party to, inter alia, the 1975 Convention, we believe that CIAC has come to be an ideal and natural alternative, serving as the coordinating entity, throughout the Americas, of a hemispheric network of institutions devoted to the administration of dispute settlement mechanisms.

CIAC’s suitability lies in the fact that, in addition to the representativeness and sufficiency of its structure through which knowledge and experience has been garnered in developing alternative dispute settlement mechanisms in the region, it also comprises the main business organizations of the Americas.

With all these credentials CIAC is in good stead to be considered as the ideal structure to be subsumed under the FTAA Dispute Settlement Mechanism.

 

  NATIONAL CHAPTERS OF THE INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION -CIAC-
  NATIONAL SECTION: BODY
1 ARGENTINA Argentine Chamber of Commerce
2 BOLIVIA La Paz National Chamber of Commerce
3 BRAZIL Brazilian Confederation of Commercial Associations
4 COLOMBIA Bogotá Chamber of Commerce
5 CHILE Santiago Chamber of Commerce
6 COSTA RICA Costa Rica Chamber of Commerce
7 GUATEMALA Chamber of Commerce of Guatemala
8 ECUADOR Guayaquil Chamber of Commerce
9 MEXICO Mexico City National Chamber of Commerce
10 PANAMA Panama Chamber of Commerce, Agriculture, and Industry
11 PARAGUAY Paraguayan Commercial Arbitration Commission Chamber of Commerce, and Asuncion Commodity Exchange
12 PERU Commercial Arbitration and Conciliation Center
13 DOMINICAN REPUBLIC Santo Domingo Chamber of Commerce and Production
14 URUGUAY Montevideo Chamber of Commerce
15 VENEZUELA Caracas Chamber of Commerce
16 USA American Arbitration Association

 
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