Chapter 12: Dispute Mediation
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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. |
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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. |
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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. |
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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 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 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 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 Or contact: Meg
Kinnear meg.kinnear@dfait-maeci.gc.ca 1-613-943-2804 |
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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 NAFTA
Chapter 19: See http://www.dfait-maeci.gc.ca/t NAFTA
Chapter 20: Canada as Third Party, see http://www.dfait-maeci.gc.ca/t 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 |
Canada’s Approach to Dispute Mediation in 2003 |
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Section
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Improvements Implemented Since Last
IAP |
Current Dispute Mediation
Arrangements |
Further Improvements Planned |
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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 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 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. |
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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 |
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 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
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Disputes between Private Parties |
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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. |
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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 To
view a list of cases to which Canada is a party, please visit: http://www.dfait-maeci.gc.ca/t 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. |
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Recognition of arbitration agreements and Enforcement of
arbitration awards |
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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. |
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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. |
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Improvements in
Canada’s Approach to Dispute Mediation since 1996 |
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Section |
Position at Base Year (1996) |
Cumulative Improvements Implemented
to Date |
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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 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 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. |
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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 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. |
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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. |
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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. |
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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. |
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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. |
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