Jumpstarting APEC in the Race to “Open Regionalism:” A Proposal for the Multilateral Adoption of UNCITRAL’s Model Law on International Commercial Arbitration

Gerardi, Melissa | January 1, 1995

This Comment will demonstrate that although the APEC member nations are divided between two contrasting approaches to the future development of APEC, the “Western” and “Asian” approaches respectively, they nonetheless share a dynamic Asia-Pacific economy which offers the incentive for economic cooperation in the area. Although such dynamic economic growth has been led primarily by the acts of the private sector, such economic performance would not have been possible without the facilitating role of the APEC governments.’ In accordance with the goal to achieve “open regionalism” by the year 2020, this Comment proposes that the APEC members adopt the United Nations Commission on International Trade Law’s (UNCITRAL) Model Law on International Commercial Arbitration in order to facilitate trade and investment in the Asia Pacific region. There are two major reasons to adopt UNCITRAL’s Model Law. First, as the GATr’s dispute settlement mechanisms pertain solely to disputes between governments, APEC needs to address the realm of private international commercial disputes in order to facilitate and increase trade and investment in the region. Second, as APEC’s agenda has become increasingly ambitious, it is lacking in specific commitments; the forum is in jeopardy of losing credibility by failing to produce practical results. In adopting the Model law, each nation could be taking a practical and substantive step towards the facilitation of business transactions in the region, thereby helping APEC to achieve the ultimate goal of “open regionalism” by the year 2020. Part H of this Comment will explain the factors leading to APEC’s formation as well as APEC’s organization, process, and activities. Part III will then present the current division within APEC regarding APEC’s future development. Part IV will introduce the UNCITRAL Model Law on International Commercial Arbitration, presenting the argument that by taking pragmatic, cooperative steps in the path towards free trade, APEC can further bridge the divide between the Asian and Western approach. Part IV will explain that by adopting the Model Law and thereby inaugurating market-induced movement toward free trade, such private sector activity will provide the incentive for members to further cooperate and integrate their economies. Part V will examine the drawbacks and benefits of adopting the Model framework.