Printemps 2011 - ADR Institute of Canada

sized businesses engaged in NAFTA trade.Considerable time has been spent by theCommittee and its members 11 on outreachand education programs throughout theNAFTA region. The Committee has alsomet from time to time with industry representativesin each country 12 . Through thisdialogue, the availability of fast, affordable,and equitable dispute resolution was identifiedas key for small businesses. It wasobserved that small businesses had a limitedcapacity for risk, and that dispute resolutionwas often slow, costly, inequitable,and gave rise to a high opportunity costthereby undermining business success. Thebusiness community advised that educationin the context of industry or trade meetingswas most helpful as was access toreadily available information via trade offices,publications or the Internet. The needfor assistance in drafting ADR clauses wasidentified. As a result the focus of theCommittee’s education and promotion ofADR has been on the business communityrather than the legal community and theCommittee has undertaken a number ofjoint programs with the inhouse legal community.The Committee developed a brochurewhich explained different forms of ADR,including two model ADR clauses one foruse with arbitration, the other for use withother forms of ADR such as mediation andconciliation. This was then further developedas the Committee established awebsite 13 in 2004 as part of its outreach andeducation activities. The website includesa checklist for arbitration, identifies arbitralinstitutions in the NAFTA region aswell as matters to take into considerationwhen choosing an arbitral institution. TheCommittee has also prepared materials onthe enforcement of agreements to arbitrateand arbitral awards.An important aspect of the Committee’swork and outreach activities has been toengage in a dialogue with the judiciary withrespect ADR. At the outset the Committeeidentified the desirability of acquaintingjudges in the NAFTA countries with arbitrationand other forms of ADR and thedesirability of providing additional trainingwhere warranted as part of the judicialtraining programs in each country or otherwise.This continues to be part of theCommittee’s work plan.Dialogue with the JudiciaryThe Committee held its first judicial outreachroundtable in 1998 with participationof judges from each country. Thejudges affirmed that the judiciary couldplay an important role in speeding thesettlement of many commercial lawsuitsthrough the creative and effective use ofADR, including mediation by members ofthe judiciary, summary jury trials, and minitrials.It was observed that once a matterwas before the courts there was little benefitin proceeding with arbitration. It wasrecognized that enforcement of awards inCanada and the United States was clear andthat the need for judicial training on thesubstantive law of arbitration was limited.It was acknowledged that further trainingon ADR in general for judges was desirableand that the preparation of briefingbooks for judges on international treatiesand agreements on ADR was desirable. Atthe conclusion of this meeting, it was decidedthat as part of its outreach mandatethe Committee would host an internationalconference on arbitration and other formsof ADR in Mexico City. The target audiencewould be the business community andthe judiciary. In conjunction with a MexicoCity meeting of arbitrators in 1999, theCommittee, with the support and assistanceof the U.S.-Mexico Conflict ResolutionCenter and USAID, organized a conferenceon Alternative Dispute Resolutionfor judges and businesses. This Conference14 gathered in excess of 350people, including over 120 Mexicanjudges, as well as U.S. and Canadianjudges, business people, government officialsand private lawyers representing thethree NAFTA countries.In 2001 the Committee hosted a dialoguewith the Mexican judiciary. The Committeewas provided with useful insights fromthe judiciary. It was observed that Mexicanjudges have difficulty recognizing andenforcing arbitral awards due to unfamiliaritywith the subject matter. The Committeewas advised that conferencesand seminars on ADR for judges andadvisors would assist with the recognitionof arbitral awards and reinforcethe appreciation and use of ADR inMexico. This continues.The Committee continues to focus on therole of the judiciary. In 2009, the FTC recognizedthe importance of the Committee’swork with the judiciary in each membercountry and its continuing mandate to advanceADR for the resolution of commercialdisputes in member countries. In particularit stated:“We recognize that the availability of privatecommercial dispute resolution proceduresplays an important role in creatingcompetitive conditions for trade in goods,services and capital and that the judiciariesof each country have an important roleto play in effective private commercial disputeresolution procedures. We are encouragedby the work of the NAFTA 2022 AdvisoryCommittee on Private CommercialDisputes and endorse its intent to focusforthcoming outreach activities on the judiciariesof each country to promote alternativedispute resolution mechanisms in theFree Trade Area.”The FutureDuring its first 15 years, the NAFTA 2022Committee has effectively carried out itsfundamental mandate: to assess whetherthere are legislative impediments to the useof ADR and the enforcement of arbitralawards, and to promote awareness of anduse of ADR in the NAFTA region as ameans of enhancing trade and investment.In recent years, the development of theCommittee website has expanded theCommittee’s profile and has provided animportant platform for further outreach andeducation. The work of the Committee hasbeen assisted by the increased use of ADRon a global basis particularly as the judicialsystems in many countries continuedto be stretched and strained. Further thecontinuing work within UNCITRAL hassupported the initiatives of the Committee.Increased experience by the business communitywith arbitration means that the needfor outreach and education is less urgenttoday than it was in 1994.At this time the Committee is assessingwhat the future focus of its efforts shouldLe Journal canadien d'arbitrage et de médiation51