Internationalising Mediation

Managing Jurisdictional Diversity

Laurence.Boulle@acu.edu.au

Outline

Need and demand in cross-border disputes

Dispute resolution in trade and investment disputes

Managing jurisdictions in commercial disputes

Existing enforcement systems

Towards a unified cross-border enforcement regime?

Conclusion

International commercial disputes

International relations and politics

International finance and competition law

International family and inter-personal issues

The new and virtual technologies

International trade and investment

Need and Demand in Cross- Border Disputes

Dispute management through the WTO

Dispute management by investment tribunals

Specialised dispute resolution systems

Dispute resolution systems in regional treaties

Extending IEL treaties to business disputes?

Managing Trade and Investment Disputes

The paradox of globalisation

Legal harmonisation and unification

Existing systems of cross-border enforceability

Domestic arrangements

International instruments

Soft law options

New regimes for enforcement of iMSAs

Cross-Border Commercial Disputes

Enforcement and Compliance

Contracts

Standard contract

Special contract

Ratified contract

Deeds of settlement

Notarial deed

Certification

Court orders

Consent orders

Court-based ADR

Court filing or registration

Arbitral awards

Final binding award

Existing Enforcement Arrangements

Different Directions in iMSA Enforcement

ArB

•Arbitration Agreement

•Arbitrator appointment

Med

•Mediation

•Resultant MSA

ArB

•Arbitral award

•Enforceable MSA?

Hybridisation

Option 1

½ Arb

•Arbitration agreement

•Mediation

Med

•Resultant MSA

•Arbitrator appointment

Arb

•Arbitral award

•Enforceable MSA?

Hybridisation

Option 2

Med

• Mediation

• Resultant MSA

• Arbitration agreement

• Arbitrator appointment

Arb

• Arbitral award

• Enforceable MSA?

Hybridisation

Option 3

New York Convention

Incapacity, or agreement invalid under law to which parties have subjected it…

No proper notice of appointment of arbitrator or proceedings, or un able to present case

Award deals with difference not within terms of arbitration, or decision is beyond scope

Composition of arbitral authority or procedure not in accord with parties’ agreement or law of arbitration state

Award not yet binding, or has been set aside

Recognition and enforcement may be refused if

Subject of difference not capable of settlement by arbitration or under law of that country

Against public policy

Art 5

Recognition and enforcement of the award may be refused, at request of party against whom it is invoked, only if that party furnishes to the competent authority where recognition and enforcement is sought, proof that;

Stockholm Chamber of Commerce If the parties reach a

settlement before the final award is made, the Arbitral Tribunal may, upon the request of both parties, record the settlement in the form of a consent award.

Arbitration Rules

Article 39

Settlement or other grounds for termination of the arbitration

If the parties reach a settlement after the file has been transmitted to the arbitral tribunal … the settlement shall be recorded in the form of an award made by consent of the parties is so requested by the parties and if the arbitral tribunal agrees to do so..

ICC Arbitration Rules 2012

Art 32

Australian Centre for International Arbitration

If, before the award is made, the parties agree on a settlement of the dispute, the Arbitral Tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the Tribunal, record the settlement in the form of an arbitral award on agreed terms. The Arbitral Tribunal is not obliged to give reasons for such an award.

Arbitration Rules

Art 35.1

Art 14: Enforceability of settlement agreement

If parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable…[enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement]

Footnote 5: When implementing procedure for enforcement of settlement agreements, enacting State may consider possibility of such procedure being mandatory

UNCITRAL Model Law on International Commercial Mediation

1. Member states shall ensure that it is possible for parties, or one of them with the explicit consent of others, to require that the content of written agreements resulting from mediation be made enforceable… unless either the content of that agreement is contrary to law of Member States where request is made or law of the Member State does not provide for its enforceability

2. The content of the agreement may be made enforceable by a court or other competent authority in judgment or decision or in an authentic instrument in accordance with law of Member State where request is made.

EU Directive

2008/52/EC

Art 6 Enforceability of agreements resulting from mediation

Future Enforcement Options

Definitional issues

Mediation within hybrid DR systems

Scope and exclusions

Ad hoc and institutional mediation

Legitimacy and approval

Policy considerations

Convention for Cross-Border Enforcement of iMSAs?

Regulatory reluctance

Challenges of definition and legal culture

Restrictions on settlement outcomes

Confidentiality implications

Why should mediation be privileged?

Policy Relating to iMSA enforce-ment

Conclusion The promotion and

encouragement of international commercial mediation requires systems to support the enforceability of iMSAs.

The limits of evidence-based support

The limits of needs-based support