Commercial Alternative Dispute Resolution in Cascadia *

By Gal-Or, Noemi | Canadian Journal of Regional Science, Summer 2001 | Go to article overview

Commercial Alternative Dispute Resolution in Cascadia *


Gal-Or, Noemi, Canadian Journal of Regional Science


Abstracts: "Commercial Alternative Dispute Resolution in Cascadia". The paper focuses on the interface between two recent trends in the context of NAFTA: regionalism in the Pacific Northwest and ADR. The purpose of the research is to study the use of ADR as practised in the narrow "Cascadia Corridor". To what extent has ADR been utilised in private party cross-border commercial trade? Have any specific sectors been developing an aptitude for ADR over court adjudication? Which ADR methods have been preferred? What has been the degree of success of ADR, if any, and under what circumstances did ADR fail? When it failed, did the parties move on to court adjudication, non-third-party facilitated process, or abandoned the dispute altogether? Would a standardisation of ADR for the Cascadia Corridor be an attractive option? In what form?

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In this interdisciplinary research (1) I will study the convergence of two phenomena intricately linked and highly topical of the late 20th and early 21th centuries: Regional Market Integration (RMI) and Alternative Dispute Resolution (ADR). Both in the literature and in the real world, RMI, which is premised on theories and policies of free trade, is perceived as the "better" economic arrangement. But what are the contours of the "benefit" of RMI? Can access to justice be construed as a non-tariff barrier to RMI trade (NTB)?

I limit the scope of inquiry to the study of companies as the beneficiaries of RMI, focusing on the dichotomy of big versus small and medium size companies. I further limit the focus to address the process of justice (not substance) as it arises in the event of disputes among firms. (2) Cascadia, which is a trans-border region within the North American Free Trade Agreement (NAFTA 1992) is thus a natural candidate for such research.

ADR, mainly arbitration and mediation, but also other alternatives to court adjudication, have become increasingly popular at four levels of application:

* Legal and para-legal practitioners praise ADR as a just, efficient, and effective means to settle civil and international disputes;

* The courts throughout Canada have incorporated mandatory as well as voluntary ADR as a pre-trial procedure;

* The British Columbia (B.C.) Attorney General maintains a Dispute Resolution Office to administer this area of law; and

* The NAFTA provides for, and continues to develop, procedures and rules of ADR.

Many in the legal profession, judiciary, and executive in Canada and the U.S., as well as in the North American free trade forum, have subscribed to ADR. However, the attitude of the private sector remains unknown.

Consequently, three general questions arise:

* In the corporate and commercial area, does business perceive lack of access to justice as NTB?

* Is business aware of the ADR option? and

* Does business share the above mentioned enthusiasm for ADR?

To this date, there is no literature, statistical or otherwise systematic research on small regions cross-border commercial ADR available? (3)

Ultimately, the objective of my research is to study the awareness of the ADR option of private small and medium size companies engaged in cross-border trade in Cascadia. I am specifically interested in assessing the reasons for, and the extent of, inclusion of provisions for ADR in commercial agreements.

I apply a mixed methodology using primary and secondary sources on regionalism, Cascadia, the NAFTA, and ADR. To this I add over 55 interviews (mostly over the phone) I conducted in the business sector, the legal community, ADR non-legal practitioners, government, and regional organisations and associations. This quantitative part of the research, which is exploratory in nature should be considered as a pilot study. I chose the interviewees from across the business sector so as to capture as broadly as possible the commercial diversity in Cascadia.

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