Les mécanismes de règlement des différends dans l'espace économique américain, les perspectives d'avenir

by Lachapelle, Guy

In this thesis, after examining the evolution of both the economic situation over the recent past and of the various treaties and agreements that both inspired and responded to this evolution, we propose a resolutely legalistic procedure for dispute resolution to be included in a panamerican free-trade agreement that would encompass almost dl countries of the American continent, in accordance with the objective announced by the heads of State who participated in the Summit of the Americas. We opt for institutional dispute resolution mechanisms that would intervene after any possibility of appealing a ding by a lower forum has been ruled out, thus reducing the links between the political and juridical structures of the eventual treaty, recognizing that private parties may, in certain circumstances, have an inherent right to intervene in such proceedings. We favor the inclusion within the treaty itself - particularly as far as competition law is concerned - of substantive law that would be as comprehensive as possible, and suggest means for this substantive law to continue to evolve even after the treaty is concluded. Without setting aside a pragmatic approach which is always likely to help solve or avoid disputes, we have strived for the recognition by states of the inescapabilityof a strong legalistic approach, each element of which would be fiee of any suspected political meddling, if we really want the liberalization of exchange between countries of such diverse socio-economic conditions as those we find in the Americas. The objectives of a regional agreement on the opening of the economy and trade liberalization must be different fiom those of multinational agreements such as the WTO; otherwise, the existence of such agreements could not be justified. Each must provide for dispute resolution mechanisms adapted to its specific mission.