THE EVOLUTION OF DISPUTE RESOLUTION
IN PRIVATE INTERNATIONAL LAW
Jack R. Miller
presented in program on
Peaceful Resolution of International Disputes
Tuesday, August 8, 1989
1985, the Nobel Peace Prize was awarded to the
International Physicians for the Prevention of
Nuclear War, a group of Soviet and American physicians
who introduced reality testing to theories about
survival after a nuclear war and disproved those
theories. There would not be enough burial plots
to bury the dead nor enough hospital beds nor
physicians to accommodate the wounded, in a word
1986, the Soviet Union put forward the concept
of a nuclear-free safe world and took other initiatives
in that direction, moving from positional negotiation
to principled negotiation and changing not only
the rules of the game but the game itself. The
concept of perestroika and its application have
captured the headlines often and most recently
the Soviet Union has indicated
its desire to take part actively in global commerce.
commerce is regulated by the General Agreement
on Tariffs and Trade and to a lesser degree by
agencies of the United Nations. The Soviet
Union is of course a member of the
United Nations but it is not a contracting party
originally contained two principal articles on
the subject matter of dispute resolution, Article
XXII on Consultation and Article XXIII on Nullification
or Impairment, although
I want to stress that GATT itself was a form of
dispute resolution and a substitute for war.
as a whole and the dispute resolution mechanisms
within GATT have evolved. The Tokyo Round “Understanding
Regarding Notification, Consultation, Dispute
Settlement and Surveillance”, adopted on 28 November 1979, codified the customary
practice of the GATT in the field of dispute settlement.
Free Trade Agreement between Canada
and the United
under Article XXIV of GATT was itself a process
of dispute resolution and also contained important
and innovative provisions of dispute resolution
which came into force on January
on April 12, 1989, the GATT Council adopted the Ministerial
decisions in Montreal
in their entirety and announced new dispute settlement
procedures as part of the mid-term review of the
Uruguay Round of Multilateral Trade Negotiations.
Those new procedures featured more specific procedures
and time limits for consultations, arbitration
as an alternative to panel proceedings, reforms
of panel procedures, and legal advice for developing
contracting parties involved in a dispute.
refer to the processes and mechanisms under GATT
as “public ADR”, “public” because their object
is the activities of governments and “ADR” because
they offer a choice of dispute resolution approaches
covering the range of adjudicative and facilitative
classify dispute resolution processes and mechanisms
according to whether they are adjudicative, i.e.
a third party decides for the parties in dispute,
or facilitative, i.e. the parties decide for themselves
with the assistance of a third party. Examples
of adjudicative approaches are the International
Court of Justice and arbitration. Examples of
facilitative methods are consultations, panels,
mediation and expert
nation states, generally speaking, have standing
and access to public ADR. This is an echo of public
international law at the time when the Universal
Declaration of Human Rights was adopted, whose
purpose was to give private individuals standing
under public international law.
40th Anniversary of the Universal Declaration
was recently celebrated. In the opinion of its
principal architect, John Humphrey, a Canadian,
the Universal Declaration is as important today
as the Charter of the U.N.
I think a similar evolution will take place in
commerce through the interaction of public ADR
and private ADR because commerce is carried out
international commerce today hovers on the interface
of order and disorder.
Hawking in “A Brief History of Time” reminds us
that there is a tendency to disorder because there
are many more forms of disorder than order and
that this tendency can be controlled by the investment
of energy. James Gleick
in “Chaos – Making a New Science” reports on the
body of scientific investigation and reflection
into chaos, what classical science held constant.
research suggests among many other things that
limited action can have large effects. In other
words, the individual does make a difference and
what we do together can change the world, as Mr.
Gorbachev is in the process of showing to us.
could we invest our energy to create a new international
order in private international law?
Canadian physician, John A. Sloane, M.D., in a
paper entitled “Towards a Way of Containment:
Psychodynamic, Biological and Educational Aspects
of Human Aggression”, presented at the 8th
World Congress of the previously mentioned
1985 Nobel Peace Prize winners in Montreal, highlights
the aggression of the individual.
Sloane states that in his view “the real nucleus,
the heart of things, is Adam”. Dr. Sloane continues:
“Adam, unfortunately has a very fragile container. The old control
rods are outmoded and need replacing. The individual
and his world, a world which both stimulates and
contains the aggression that is explosively released
or leaked whenever the core self is injured, threatened
or thwarted by serious failures of empathetic
responsiveness to legitimate needs, aspirations
Australian John W. Burton, teaching in the United
States at the Center for Conflict Resolution,
George Mason University, Virginia, published in
1987 a work entitled “Resolving Deep-Rooted Conflict
– a Handbook”, which offers a language of conflict
resolution and a model of facilitated conflict
resolution. I think that the work contains many
useful guidelines. Deep-rooted conflict as defined
to refer to those cases where it is necessary
to reconcile the legitimate needs and aspirations
to which Dr. Sloane refers and which cannot be
divided up or otherwise compromised.
my vocabulary of dispute resolution, I distinguish
between conflict and dispute. I refer to conflict
as activity within an individual or an institution
and I limit dispute to refer to an interaction
between two or more individuals or institutions.
I feel that it is important to not only settle
the dispute but also to resolve the conflict.
There is so much more to gain and disputes settled
without conflict resolved may not stay settled.
It is important to pay attention not only to issues
but also to people in dispute resolution processes,
what Fisher and Ury
in “Getting to Yes” refer to as being soft on
people and hard on the issues.
my view, it is time to look beneath the surface
of dispute resolution to the underlying dynamics
and gain a greater understanding of the forces
at work. In my opinion, a very helpful work is
Robert Axelrod’s “The
Evolution of Cooperation”, which sheds the rumour
from the fact of co-operation. Dispute resolution
is essentially a co-operative exercise. Even the
adversarial system depends upon co-operation for
lawyers are also officers of the court.
what ways could we usefully invest our energies
to contribute to the evolution of dispute resolution
in private international law? I have some suggestions
and I am sure that many others occur to you.
Here are some of mine:
Put clauses in contracts which provide an access
to a wide range of approaches and not only to
one or two mechanisms;
Build bridges of communication for parties in
conflict or dispute other than through government,
e.g. World Trade Centres;
Develop private law counterparts to public law
ADR and co-ordinate public law and private law
Research and analyze the interaction of psychology
and the law to understand better the human dynamics
of information exchange and listening.
would like to conclude by bringing you greetings
from the native North American People of the Longhouse,
also known as the Iroquois Confederacy or the
Six Nations, in the words of its founder, Deganawidah.
Franklin, who spent some time in Montreal
during the occupation of Montreal
by patriot forces from 1776 to 1778 and founded
English-language daily newspaper, The Gazette,
was inspired by the Iroquois who were also a source
of precedent for the League of Nations
and for the United Nations. The speeches and responses
of Iroquois chiefs are sometimes compared to Plato’s
“Dialogues”. The Iroquois held the balance of
power east of the Mississippi
during the 17th and 18th
“In explaining the Good News to a
chief named Degaihogen,
a vision of a world community.
“What shall we be like”, Degaihogen had asked, “when this Reason and Righteousness
and Justice and Health have come?”
“In truth”, explained Deganawidah, “Reason brings Righteousness, and Reason is a
power that works among all minds alike. When one
Reason is established all the minds of all mankind
will be in a state of Health and Peace. It will
be as if there were but a single person.”
“When the Longhouse with Five Fires
had been erected and the Tree of Peace planted
at Onondaga, Deganawidah’s mind leaped forward to the next great adventure,
the union under the shelter of the Tree, of all
the nations of mankind.”
could be expressed in modern terms as assertiveness
or cognitive responses, as opposed to fight or
flight, and Righteousness as conflict resolution
and dispute settlement.
People of the Longhouse, whom it is my privilege
along with others to counsel from time to time,
invite you to shelter under the Tree of Peace.