Document Type

Article

Disciplines

International Law

Abstract

At the moment, there is some debate as to whether, and if so how, other Latin American countries should join the free trade group. Chile seems to be already on its way. Argentina, Brazil, and Columbia have expressed strong interest. It is, to be sure, uncertain whether an extension of the Agreement is at all likely in light of the political climate that has developed, particularly in the United States, following this year's financial crisis in Mexico. A more fundamental question, however, is whether an extension would be in the interest of current and potential members. My skepticism regarding any such expansion is based not on economic, but rather, on legal grounds. The Agreement seems to have failed sufficiently to take into account the special legal identity of Mexico. The process leading to the Agreement did not take the form of a conversation on bridging the legal distance between the parties, but rather that of an imposition of legal conformity on the weakest party. Mexico not only had to Americanize its legal system,' but also had to accept a pre-fabricated legal superstructure based almost entirely on U.S. law. A hasty incorporation of other Latin American countries would probably thrust a similar fate upon them.

But this article does not dwell extensively on the broad question whether the Agreement should incorporate additional Latin American countries, nor does it attempt to show that the U.S. perspective pervades the Agreement as a whole. The article focuses exclusively on the procedural apparatus that the Article imposes on the legal systems of the parties, specifically in the area of antidumping and countervailing duties. It argues that the dispute resolution mechanisms to review such duties are almost completely derived from U.S. civil procedure.

The article then points out that a different conception of civil procedure prevails in Mexico. This conception seems to be rooted in the civil law tradition and accordingly resembles that of other civil law jurisdictions, particularly that of Germany. The comparison with the German procedural picture, which has often been studied and regarded as a model in the United States, is meant to facilitate the understanding and appreciation of the Mexican picture. The article ultimately suggests that the discussion on dispute resolution in the context of the Agreement would have been more enlightened if it had taken the Mexican conception of procedure into account. The possibility being contemplated is not, however, that of patching some of the best elements of the Mexican procedural picture onto the existing review procedure, but rather that of coherently imagining a new procedure inspired in part by the Mexican perspective.

In the same breath, the article concedes that the underlying political and economic circumstances precluded any such possibility. Given its commanding upper hand, the United States did not come to the process in order to engage in dialogue, but instead to impose conditions. It is unlikely that the Mexican government, even if it had been committed to its legal identity, would have been able to alter this attitude.

In its concluding section, the article also ventures a few general observations with respect to the central topic of this conference, i.e., the expansion of the North American Free Trade Agreement. Mexico's experience should perhaps be a lesson to other Latin American countries. They would be well advised to continue strengthening the free trade agreements that already exist among themselves before trying to join the North American block. They could thus develop their own dispute resolution mechanism as well as their own vision of commercial consolidation. They could then be in a position further down the road to approach the North American countries as solid and independently defined trading groups, rather than as individual, struggling nations.

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