Issues, Constraints and Practical Options
Edited by Sisira Jayasuria, Donald MacLaren and Gary Magee
Chapter 10: Settlement of Disputes under Free Trade Agreements
Jeff Waincymer INTRODUCTION This chapter examines the essential nature and role of dispute settlement (DS) obligations and processes within inter-governmental agreements. This is a subset of a broader question as to the role and utility of law in the international arena, an area often questioned due to the lack of any effective enforcement mechanisms akin to those within domestic political systems. The chapter does not address this issue. Assuming instead that DS processes are considered to be a necessary element of an agreement, there are a number of other contentious subquestions. What form should the processes take, diplomatic or adjudicatory and what persons should be utilized as neutral facilitators? Where formal adjudication is concerned, attention needs to be given to possible processes. Negotiators also need to develop a clear understanding as to the central tasks of interpretation and fact finding lest they become unduly surprised at the outcomes in individual cases. This links in with an understanding of the legal uncertainties with the core concepts that are likely to be included in any free trade agreement (FTA), particularly non-discrimination and minimum standards protective devices. This chapter touches on the way these concepts have been interpreted through DS processes in other international fora with the dual view of providing insight into articulating such concepts within a proposed FTA and insight into the optimal DS processes that should be employed. The nature and role of any DS processes within the proposed FTA will be affected to a significant degree by the nature...
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