Jack R. Miller
Fasken Martineau Walker
Montreal, Canada 

Paper presented in program on

Peaceful Resolution of International Disputes

ABA Annual Meeting
Honolulu, Hawaii
Tuesday, August 8, 1989 

In 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 chaos. 

In 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. 

Global 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 under GATT. 

GATT 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. 

GATT 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. 

The Free Trade Agreement between Canada and the United States, made 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 1, 1989. 

And 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. 

I 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 methods. 

I 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 advisors. 

Only 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. 

The 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. 

And I think a similar evolution will take place in commerce through the interaction of public ADR and private ADR because commerce is carried out by traders. 

However, international commerce today hovers on the interface of order and disorder. 

Stephen 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. 

This 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. 

How could we invest our energy to create a new international order in private international law? 

A 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. 

Dr. 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 and accomplishments”. 

The 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. 

In 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. 

In 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. 

In 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: 

(1) Put clauses in contracts which provide an access to a wide range of approaches and not only to one or two mechanisms; 

(2) Build bridges of communication for parties in conflict or dispute other than through government, e.g. World Trade Centres; 

(3) Develop private law counterparts to public law ADR and co-ordinate public law and private law experiences; 

(4) Research and analyze the interaction of psychology and the law to understand better the human dynamics of information exchange and listening.

I 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. 

Benjamin Franklin, who spent some time in Montreal during the occupation of Montreal by patriot forces from 1776 to 1778 and founded Montreal’s 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 centuries. 

“In explaining the Good News to a chief named Degaihogen, Deganawidah presented 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.”

Reason 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.

The 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.

Thank you.

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