The Free Trade Area of the Americas (FTAA) is in the process of being
created. Using existing free trade regimes and their dispute resolution
mechanisms (DRMs) as examples, it is clear that such regimes often overlook
non-trade related considerations, such as the environment. This trend
will likely continue under the FTAA unless its DRM differs significantly
from those of existing trade regimes.
1. How do the current trade DRMs of the General Agreement on Tariffs and
Trade and the World Trade Organization (GATT/WTO) and the North American
Free Trade Agreement (NAFTA) function?
2. What weaknesses in the processes of these existing DRMs prevent "good"
decisions from being reached?
3. How can these processes be improved upon to provide DRMs for the FTAA
that will result in "good" decisions?
A literature review was conducted to broaden our understanding of how
the DRMs of WTO/GATT, NAFTA, and the future FTAA function, and to reveal
weaknesses in these mechanisms. A list of potential recommendations for
the DRM of the FTAA was drafted and brought before individuals from diverse
areas of interest and expertise in interviews to gauge their responses
and include additional recommendations. The pros and cons of each recommendation,
as revealed through the literature and interviews, were considered in
determining their desirability.
We advise the following be applied to the DRM of the future FTAA:
1.1 Publication of all dispute settlement proceedings at all stages of
1.2 Publication of documents through all major mass media.
2.1 Publication of panelists' names and backgrounds.
2.2 Regulations preventing conflicts of interest of panelists.
3.1 Required consideration of submissions from third parties (ie. amicus
3.2 Institutionalized consultation of neutral advisory bodies.
3.3 Diversification of panelist roster to include expertise beyond trade.
5.1 Provision of funds and technical assistance for nations and small
organizations to access the process.
We feel that these recommendations will help the
FTAA move toward a 'good' dispute settlement process in which decisions
reflect the concerns of those effected by an issue, take into account
all expertise pertaining to the issue, and are fully transparent to all