Chapter 12: Dispute Mediation

 

Objective

 

APEC economies will:

 

a.                   encourage members to address disputes cooperatively at an early stage with a view to resolving their differences in a manner which will help avoid confrontation and escalation, without prejudice to rights and obligations under the WTO Agreement and other international agreements and without duplicating or detracting from WTO dispute settlement procedures;

 

b.                  facilitate and encourage the use of procedures for timely and effective resolution of disputes between private entities and governments and disputes between private parties in the Asia-Pacific region; and

 

c.                    ensure increased transparency of government laws, regulations and administrative procedures with a view to reducing and avoiding disputes regarding trade and investment matters in order to promote a secure and predictable business environment.

 

 

Guidelines

 

Each APEC economy will:

 

a.                   provide for the mutual and effective enforcement of arbitration agreements and the recognition and enforcement of arbitral awards;

 

b.                  provide adequate measures to make all laws, regulations, administrative guidelines and policies pertaining to trade and investment publicly available in a prompt, transparent and readily accessible manner; and

 

c.                    promote domestic transparency by developing and/or maintaining appropriate and independent review or appeal procedures to expedite review and, where warranted, correction of administrative actions regarding trade and investment.

 

 

Collective Actions

 

APEC economies will:

 

a.                with respect to resolution of disputes between APEC economies;

                     i.      promote dialogue and increased understanding, including exchange of views on any matter that may lead to a dispute, and cooperatively examine on a voluntary basis disputes that arise, utilizing policy dialogue such as the “Trade Policy Dialogue” of the CTI;

                   ii.      give further consideration as to how the above Trade Policy Dialogue or similar functions of other fora may be used by APEC economies for the exchange of information, enhanced dialogue and mediation; and

                  iii.      examine the possible future evolution of procedures for the resolution of disputes as the APEC liberalization and facilitation process develops;

 

b.               with respect to resolution of disputes between private parties, and between private parties and APEC economies;

                  i.       provide CTI with a listing of arbitration, mediation, and conciliation services available to private entities of other APEC economies, including a description of any such service which might provide a useful model for private-to-government dispute resolution in the Asia-Pacific region, and make such information widely available to the business/private sector in the Asia-Pacific region;

                ii.      provide CTI with comments regarding experiences with the above services;

               iii.      accede where appropriate to international agreements for the settlement of disputes between governments and private entities such as the Convention on the Settlement of Investment Disputes between States and Nationals of Other States; and

               iv.      accede where appropriate to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention);

 

c.                with respect to transparency;

           promote transparency on an APEC-wide basis, through, for example, publication of a guide book on arbitration, mediation, and conciliation services available in each APEC economy; and

 

d.                   with respect to the above collective actions, continue to report to CTI on progress, with recommendations. 

 

The current CAP relating to dispute mediation can be found in the Dispute Mediation Collective Action Plan.

 

 

 

Canada’s Approach to Dispute Mediation in 2003

 

The WTO Dispute Settlement Understanding (DSU), which came into effect in January 1995, sets out a dispute settlement system that is widely used by both

developed and developing Members.  Canada believes that the DSU is an effective and appropriate means of resolving disputes between Members fairly and

efficiently.  In addition to panel proceedings, WTO dispute settlement provisions include a time for consultations, and opportunities for settlement exist throughout the

process.  Furthermore, WTO Members are working to improve existing rules.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

 

In addition, one of the principal elements of NAFTA is the establishment of a clear set of rules for dealing with the settlement of disputes.  Chapter Eleven of NAFTA

sets out dispute resolution procedures to resolve complaints between the investor and the host state.

 

Dispute settlement provisions for countervailing duty and anti-dumping matters are covered under Chapter Nineteen.  Chapter Twenty of NAFTA includes provisions

relating to the avoidance or settlement of all disputes regarding the interpretation or application of NAFTA.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/n
afta-alena/settle-e.asp

 

In addition, under NAFTA and the Canada - Chile Free Trade Agreement, as well as under the Foreign Investment Protection and Promotion Agreements (FIPAs),

provisions exist which encourage resolution of disputes through consultations.  During 2001, Canada also concluded a free-trade agreement with Costa Rica, which contains consultative and dispute-settlement mechanisms.  The Agreement entered into force on November 1, 2002.  For further information, see http://www.dfait-maeci.gc.ca/t
na-nac/Costa_Rica-e.asp)
.  Finally, foreign and national entities have equal access to legal procedures in Canada.

 

Canada is also participating in negotiations leading to the creation of the Free Trade Area of the Americas (FTAA).  Negotiations include work on a disputle settlement

system consistent with APEC objectives.

 

Canada is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention").  The UNCITRAL Model Law has

been adopted by domestic legislation at the federal, provincial and territorial levels. 

 

For further information, please visit http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp
and http://www.dfait-maeci.gc.ca/c
anada-apec/organization/guide-
e.asp

 

Or contact:

 

Meg Kinnear 

meg.kinnear@dfait-maeci.gc.ca

1-613-943-2804

           

 


 

 

Overview of Disputes Involving Canada Since the Last IAP

 

            NAFTA Chapter 11

 

No disputes were filed against Canada since the last IAP.  For ongoing disputes see http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

NAFTA Chapter 19:  See http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

 

NAFTA Chapter 20: Canada as Third Party, see http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

 

WTO

 

Since the last IAP, Canada has undertaken two challenges against the U.S. with respect to various matters relating to softwood lumber.  They are:

                                             

·         United States – Final Dumping Determination of Softwood Lumber from Canada

·         United States – Final Injury Determination With Respect to Certain Softwood Lumber from Canada

 

Canada filed a case against the European Communities in

·         European Communities – Measures Affecting the Approval and Marketing of Biotech Products

 

One case was filed against Canada since the last IAP:

 

·         Canada- Measures Relating to Exports of Wheat and Treatment of Imported Grain

 

 

When the decisions are made, they should be available at http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

 

 

 


Canada’s Approach to Dispute Mediation in 2003

Section

Improvements Implemented Since Last IAP

Current Dispute Mediation Arrangements

Further Improvements Planned

 

Disputes between Governments

 

 

 

 

 

The WTO Dispute Settlement Understanding (DSU), which came into effect in January 1995, sets out a dispute settlement system that is widely used by both developed and developing members.  Canada believes that the DSU is an effective means of resolving disputes fairly and efficiently.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

In addition, one of the principal elements of NAFTA is the establishment of a clear set of rules for dealing with the settlement of disputes.  Dispute settlement provisions for countervailing duty and anti-dumping matters are covered under Chapter Nineteen.  Chapter Twenty of NAFTA includes provisions relating to the avoidance or settlement of all disputes regarding the interpretation or application of NAFTA.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/n
afta-alena/settle-e.asp

 

Furthermore, under NAFTA and the Canada - Chile Free Trade Agreement, as well as under the Foreign Investment Protection Agreements (FIPAs), provisions exist which encourage resolutions of disputes through consultations.  Similar provisions exist in the Canada-Costa Rica Free Trade Agreement, which recently came into force and contains a dispute settlement mechanism.  Where consultations cannot satisfactorily resolve a dispute, all of these instruments allow for either arbitration or state-to-state dispute settlement.

 

 

 

Disputes between Governments and Private Entities

 

 

The NAFTA Free Trade Commission, comprised of the cabinet-level representatives responsible for trade in the three NAFTA parties, issued a clarification of the obligations contained in Chapter 11.  For more information see:

 

http://www.dfait-maeci.gc.ca/t
na-
nac/NAFTA-Interpr-e.asp

Foreign and national entities have equal access to legal procedures in Canada.  One of the principal elements of NAFTA is the establishment of a clear set of rules for dealing with the settlement of disputes.  Chapter Eleven of NAFTA sets out dispute resolution procedures to resolve complaints between the investor and the host state.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/n
afta-alena/settle-e.asp

 

In addition, under NAFTA and the Canada - Chile Free Trade Agreement, as well as under the FIPAs, provisions exist which encourage resolution of disputes through consultations.  The NAFTA and FIPAs also provide for arbitrated dispute settlement at the investor-state level.

 

The UNCITRAL Model Law is implemented by the federal government and Canada’s provinces and territories.  For further information, please contact:

 

Meg Kinnear

meg.kinnear@dfait-maeci.gc.ca

1-613-943-2804

 

 

 

Disputes between Private Parties

 

 

 

The National Office of the ICC (International Chamber of Commerce) (Ottawa, ON), the British Columbia International Arbitration Centre (Vancouver, B.C.) (http://www.bcicac.com) and the Quebec National and International Commercial Arbitration Centre (Montreal and Quebec City, Que) offer services that may be accessed by foreign investors or other foreign nationals seeking resolution of disputes.

 

NAFTA Article 2022 requires the NAFTA parties, to the extent possible, to encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area. 

 

Some jurisdictions in Canada have mediation programs as part of the court system.

 

 

Transparency

 

 

 

The final form of regulations, after approval by Governor in Council, are made public through publication in the Canada Gazette. 

 

Proposed legislation or recent legislative amendments and enactments, can be reviewed in the Canada Gazette.

 

To determine the status of ongoing Bills in the House of Commons or the Senate, please visit the Government Bills page on the Parliamentary Internet site at: http://www.parl.gc.ca

 

The Department of Justice website site provides quick access to Statutes and associated Regulations in text and compressed text formats.   Please visit:

 

http://canada.justice.gc.ca/lo
ireg/index_en.html

 

To view a list of cases to which Canada is a party, please visit:

http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

 

In addition to the federal websites, each of the provinces/territories have provincial/territorial legislation governing disputes.  For these websites, please refer to the attached sheet. 

 

 

Recognition of arbitration agreements and Enforcement of arbitration awards

 

 

 

 

Canada is a party to the Convention on the Recognition and Enforcement of the Foreign Arbitral Awards (the "New York Convention") done at New York June 10, 1958.  It entered into force for Canada on May 12, 1986.

 

 

Independent Review Procedures

 

 

 

Rights of appeal or review from an arbitration award or other dispute settlement procedure may vary from province to province Please refer to legislation, case law, and rules of procedure in the relevant Canadian jurisdiction.

 

 


Improvements in Canada’s Approach to Dispute Mediation since 1996

Section

Position at Base Year (1996)

Cumulative Improvements Implemented to Date

 

Disputes between Governments

 

 

Dispute Resolution Services of the Department of Justice was established to respond to the growing interest in and demand for alternate forms of dispute resolution (April 1992).

 

The WTO Dispute Settlement Understanding (DSU), which came into effect in January 1995, sets out a dispute settlement system that is widely used by both developed and developing members.  Canada believes that the DSU is an effective means of resolving disputes fairly and efficiently.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/t
na-nac/dispute-e.asp

 

In addition, one of the principal elements of NAFTA is the establishment of a clear set of rules for dealing with the settlement of disputes.  Dispute settlement provisions for countervailing duty and anti-dumping matters are covered under Chapter Nineteen.  Chapter Twenty of NAFTA includes provisions relating to the avoidance or settlement of all disputes regarding the interpretation or application of NAFTA.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/n
afta-alena/settle-e.asp

 

In addition, under NAFTA and other trade agreements to which Canada is a party, as well as Foreign Investment Protection Agreements (FIPAs), governments are encouraged to resolve disputes through consultations.

 

 

The Canada-Chile Free Trade Agreement which includes provisions on consultations for resolution of state-state disputes entered into force (June, 1997).  The Canada-Israel Free Trade Agreement contains similar provisions, and entered into force in January, 1997.

 

In addition, 13 bilateral FIPAs, containing provisions on consultations and dispute settlement for resolution of state-state disputes were concluded and entered into force (since 1996).

 

Last year the Canada-Costa Rica Free Trade Agreement, negotiated in 2001, came into force.  It contains provisions on consultations and dispute settlement for resolution of state-to-state disputes.

 

Disputes between Governments and Private Entities

 

 

Foreign and national entities have equal access to legal procedures in Canada.  One of the principal elements of NAFTA is the establishment of a clear set of rules for dealing with the settlement of disputes.  Chapter Eleven of NAFTA sets out dispute resolution procedures to resolve complaints between the investor and the host state.  For further information, please visit:

 

http://www.dfait-maeci.gc.ca/n
afta-alena/settle-e.asp

 

In addition, under NAFTA and the Canada - Chile Free Trade Agreement, as well as under the FIPAs, provisions exist which encourage resolution of disputes through consultations.  These instruments also allow for the arbitration of investor-state disputes.

 

The UNCITRAL Model Law has been adopted in domestic law at the federal, provincial and territorial levels. 

 

 

 

 

Disputes between Private Parties

 

 

Arbitration centres provide international commercial arbitration services.  The National Office of the ICC (Ottawa, ON), the British Columbia International Commercial Arbitration Centre (Vancouver, B.C.) and the Quebec National and International Commercial Arbitration Centre (Montreal and Quebec City, Que) offer arbitration services for resolutions of disputes.

 

NAFTA Article 2022 requires the NAFTA parties, to the extent possible, to encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in  the free trade area.

 

 

Transparency

 

 

In 1996, Canadian laws and regulations were readily accessible from a number of sources including the Statutes of Canada, Regulations of Canada, and the Canada Gazette.  They were also available to the public by request and in most libraries throughout Canada.  First steps had been taken to make these laws and regulations available electronically and through the Internet.  

Significant progress has been made since 1996 in enhancing the electronic and Internet access for Canadian laws and regulations.

 

For example, to determine the status of ongoing Bills in the House of Commons or the Senate, please visit the Government Bills page on the Parliamentary Internet site at: http://www.parl.gc.ca

 

The Department of Justice website site provides quick access to Statutes and associated Regulations in text and compressed text formats.   Please visit: http://laws.canada.justice.gc.
ca

 

 

Recognition of arbitration agreements and Enforcement of arbitration awards

 

 

Canada is a party to the Convention on the Recognition and Enforcement of the Foreign Arbitral Awards (the "New York Convention") done at New York June 10, 1958.  It entered into force for Canada on May 12, 1986.

Canada has participated in the UNCITRAL Working Group on Arbitration which is examining the interpretation of art. II(2) of the New York Convention.

 

Independent Review Procedures

 

 

Rights of appeal or review from an arbitration award or other dispute settlement procedure may vary from province/territory to province/territory; as well, federal procedures may vary from those of provinces. Please refer to legislation, case law, and rules of procedure in the relevant Canadian jurisdiction.