Are There "Regional" Approaches to International Dispute Resolution?

Article excerpt

This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Samaa A. F. Haridi of Crowell & Moring LLP, who introduced the panelists: Katia Fach Gomez of Fordham Law School; Nkemdilim Izuako of the United Nations Dispute Tribunal; Catherine Kessedjian of University Pantheon-Assas, Paris; Zhaojie Li of Tsinghua University Law School; and Romesh Weeramantry of the City University of Hong Kong School of Law. **

I would like to begin by clarifying the scope of my remarks. Although the notion of "international dispute resolution" is very broad and can be interpreted in different ways, the suggestions made by the program committee coordinator will limit my intervention to the field of arbitration. Since the question assigned to this panel is whether there are regional approaches to international dispute resolution, my analysis of the Latin American reality is going to focus on some novel supranational initiatives in arbitration.

In the field of commercial arbitration, the Organization for the Harmonization of Business Laws in the Caribbean (OHADAC) (1) has recently launched a project to create a Caribbean Model Arbitration Law and to harmonize the business laws of the Caribbean states, (2) which were each colonized and currently have different legal systems (Romano-Germanic or common law). Additionally, OHADAC has been willing to "promote and develop an international commercial arbitration institution," and to "provide it with modern and efficient regulation, that takes into account the most recent contributions of comparative law, to fill gaps and move towards an arbitration that meets autonomy of the parties, respecting the States sovereignty, providing an efficient framework to the arbitrators, and ensuring the order issuance by optimizing the quality of justice, legal certainty and effectiveness of the pronouncements." (3) In this sense, and referring to the future Caribbean Court of Arbitration, the President of the Cuban Court of International Commercial Arbitration stated in October 2010 that this court ought to operate through a quick, inexpensive, impartial mechanism that offers the required guarantees to the parties. (4)

In the field of investment arbitration, the Union of South American Nations (UNASUR) (5) is currently elaborating three sets of rules in this area. UNASUR's goal is to create a Legal Advice Center on Investment (Centro de asesoria legal en materia de inversiones de UNASUR), a Code of Conduct for UNASUR Arbitrators and Mediators (Codigo de Conducta para los miembros de los procesos de manejo de conflictos y tribunales arbitrales del centro de arbitraje de UNASUR), and the Rules of the UNASUR Dispute Resolution Center (Reglamento del Centro de solucirn de controversias de UNASUR). (6)

The working document relating to the Legal Advice Center on Investment includes the following main ideas:

* the Center provides information, orientation, training, legal support, and legal representation at any international forum in order to understand, prevent, manage, and/or resolve any controversy on investments;

* the Center consists of a general assembly, a board, an executive director, and specialized staff;

* the Center's annual budget comes from revenue generated by a trust fund created by the member states, fees charged by the Center, and voluntary contributions;

* the Center is open to UNASUR members during the first three years, UNASUR members and Latin American and Caribbean countries from the third year on, and UNASUR members, Latin American and Caribbean countries, and third countries from the sixth year on;

* the Center does not provide services if the controversy arose between two UNASUR members or between a UNASUR member and an investor coming from another UNASUR member; and

* the Center offers lower fees than the international market to UNASUR members and Latin American and Caribbean countries, and third countries must pay higher fees and do not have access to legal representation by the Center. …